This Is “In Your Best Interests”, Even If It Is Against Your Wishes…

If ever there was an example of the Court overriding the wishes of a protected party, it was the decision in NHS Trust v JP [2019] EWCOP 23.

Earlier this year, following an application by an NHS Trust, the Court of Protection made an order authorising doctors to deliver a baby by caesarean section even though this was against the mother’s wishes. The mother in question was determined not to have the capacity to make an informed decision about the best method of giving birth, or the treatment available to her. This decision demonstrates that the NHS can turn to the Court when a patient refuses treatment without being able to understand the risks.

NHS Trust v JP

Case details

The mother (P) was 25 years old and had a learning disability. She would not consent to a general anaesthetic and caesarean section, even though this treatment had been strongly recommended to her, given her state of health. The consequences of her refusal, in the opinion of those treating her, would have led to her encountering significant difficulties when giving birth which might have endangered her and the baby. The medics treating her were confident this would be the case and were sure that P did not understand how difficult or dangerous a natural birth could be. The NHS, unable to enforce treatment against the mother’s consent, applied for a Court order.

The Court of Protection only has jurisdiction in such situations when P is determined to lack capacity. Suffering from a learning disability is not determinative in itself. However, in this case the severity of the mother’s disability was enough to cross the threshold. The key test is set out in section 2(1) of the Mental Capacity Act 2005, and the Court of Protection can only make a decision on an individual’s behalf if a qualified practitioner has assessed P against the criteria in the Act.

P was living in a care home at the time and in order to have her admitted and treated, the NHS Trust needed to apply for the following orders:

1. An order for P to be transferred to hospital (against her wishes); and
2. An order that on arrival, P would be sedated (without her consent), her baby delivered and passed into the care of the Local Authority.

P’s wishes and feelings in this case were overridden. The Court decided that it would be in her best interests to have the treatment. Essentially, this is an example of a situation in which P did not know what was good for her, but Court intervention was necessary to ensure that she and the baby received the right treatment.

Comment

The question that is seldom addressed in such cases is the effect on P’s family. In this case, there was a strong medical case for P to undergo the caesarean section as she could not understand the realities of having a natural birth and the pain and risks involved. However, there are many borderline cases in which P does, technically, lack capacity, but can understand some or most of the implications of a decision over treatment. Often the Local Authority and NHS will assume a paternalistic role which may well involve overriding P’s wishes or those of the family.

The good news is that in Court of Protection cases, neither P nor the family is excluded and the Court will hear from both. P will be represented by a litigation friend who will visit P and will ensure that his/her voice can be heard. Any parent or next of kin is entitled to be represented, and if you do not fall into one of those two categories you can still apply to be included in proceedings.