Treading related ground, the Court1 in was also asked to consider the obstetric plans of another woman who had a history of mental ill health, however in CD’s case it was agreed that CD currently had capacity to make her own decisions. The Court was instead being asked to make an ‘anticipatory and contingent declaration’ that if CD lost capacity at a critical moment in her labour, it would be lawful and in her best interests for her to be treated in accordance with a previously prepared care and treatment plan which was produced in collaboration with CD and reflected her wishes, and that any consequent deprivation of her liberty should be authorised.
The declarations were sought because the clinicians believed that there is a substantial risk that she may become incapacitous at a time when there would almost certainly not be enough time to return the matter to court.
Recognising that CD’s mental presentation was variable and that at times “she may be choosing to disengage rather than being unable to engage”, Francis J concluded that it was necessary and appropriate to make the orders requested.
Mr Justice Francis agreed with the Official Solicitor that in such an unusual case there were 5 options open to him:
- i) an order bringing these proceedings to an end on the basis that CD has capacity to make decisions about the birth;
- ii) an interim order adjourning the proceedings for a short period to enable the applicant to come back for an urgent order should CD’s capacity deteriorate;
iii) an interim order which would enable the applicant to implement the care plan pursuant to section 4B of the MCA;
- iv) a final order declaring, pursuant to section 15 (1)(c) that, in the event CD is assessed at some later date as lacking the capacity to make decisions about the birth, the implementation of the care plan would be lawful;
- v) an order pursuant to the inherent jurisdiction.
While the judge accepted that since CD did not currently lack capacity, and therefore it was arguable that the court has no jurisdiction in this case, in practical terms “it would be dangerous and plainly wrong to do nothing” and the court would not take such an unacceptable risk. Nor did the judge believe it was right to adjourn the matter given the evidence about the urgency of CD’s circumstances. He was also reluctant to make an interim order as it would be artificial to adjourn the order until after the birth “since it is in relation to treatment during labour that the issue arises”.
Instead, although he accepted that it might have been possible to use the Court’s inherent jurisdiction to make appropriate orders, Mr Justice Francis concluded that it was possible and preferable to strain the wording of the Mental Capacity Act 2005 to provide that “in exceptional circumstances, the court has the power to make an anticipatory declaration of lawfulness, contingent on CD losing capacity, pursuant to section 15(1)(c)”.
1United Lincolnshire Hospitals NHS Trust v CD  EWCOP 24 (04 July 2019)
(Author: Carol McBride)