Does the court have the power to make anticipatory declarations for medical care?

In Somerset NHS Foundation Trust v Amira, Mostyn J made obiter observations in relation to whether the court has the power to make anticipatory declarations. Here we consider those observations, which were made in light of the initial application brought by the Trust in respect of ‘Amira’s’ obstetric care in the event she lost capacity during labour.

‘Amira’ is a pseudonym given to the respondent by Mostyn J. A Reporting Restriction Order was granted given the “exceptionally private and personal nature” of the case. We continue to use this pseudonym in our article below.

Background

Amira was pregnant with her first child. She also had a diagnosis of hebephrenic schizophrenia. She had been an inpatient at a psychiatric hospital for “approximately two years between 2020 and 2022” and was again transferred to the Mental Health Trust in January 2023, however, she had since made a good recovery.

Amira had capacity but it was considered that she was likely to lose capacity during labour. An obstetric care plan was made by her treating team with her full involvement which set out four options for delivery in order of Amira’s preference. The care plan also reflected potential problems that can arise in any birth and set out progressive interventions required for a safe birth.

The Trust’s application

The Trust’s application sought relief (as set out at paragraph 19 of the judgment) as follows:

1. “A contingent declaration under section 15(1)(c) Mental Capacity Act 2005 that, in the event that Amira loses her capacity to make decisions about her obstetric care during labour, delivery and/or the postpartum period, it shall be lawful and in her best interests to be treated in accordance with the care plan..."
2. "A contingent declaration under the inherent jurisdiction of the High Court that, in the event that Amira loses her capacity to make decisions about her obstetric care during labour, delivery and/or the postpartum period, it shall be lawful and in her best interests to be restrained and/or otherwise deprived of her liberty so as to give effect to the declaration made above.”

The hearing

The application was brought by the Trust while Amira had capacity to conduct litigation and to make decisions about her obstetric care.

Amira’s mental state deteriorated significantly in the 48 hours prior to the hearing and she was deemed not to have capacity when the hearing commenced. The application was reconstituted to seek a declaration of current incapacity and orders on that basis.

The application was heard by Mostyn J who considered the court’s power in respect of anticipatory declarations in any event.

Mostyn J’s obiter observations on anticipatory declarations

Mostyn J acknowledged case law – namely United Lincolnshire Hospitals NHS Trust v CD [2019], Guys and St Thomas NHS Foundation Trust & Anor v R [2020] and North Middlesex University Hospital NHS Trust v SR [2021] - in which anticipatory declarations were granted while the individual concerned was capacitous but highlighted that on each occasion the presiding judge showed caution in this respect.

Mostyn J considered it to be doubtful that either declaration sought in the initial application could have been made for the following reasons:

• The pre-amble and Part 1 of the MCA are clear that they relate to those lacking capacity. As set out at paragraph 28 of the judgment, “with the exception of the emergency situation described in ss.5 and 6, none of the provisions in Part 1 can apply in any shape or form to a person who has capacity at the time that the matter is being considered by the court”.
• Under S.1(2) MCA "a person must be assumed to have capacity unless it is established that he or she lacks capacity". At paragraph 29, Mostyn J observes that this is in the present tense and “there is no future subjunctive alternative”.
• With reference to paragraph 35 of the judgment, a declaration under s.15(1)(c) “concerning the lawfulness of a future act can only be made in relation to a person who, at the time the declaration is made, lacks capacity as regards the subject matter of the declaration”. Mostyn J observed "the court cannot make a proleptic finding of incapacity, saying, pursuant to s2(4), that it is satisfied that it is more likely than not that at some point in the future that the person will lose capacity”. This Mostyn J adds is “because Part 1 of the Act only applies to persons presently incapacitated, not to persons who are not incapacitated but who might become at some point in the future incapacitated”.

Mostyn J went on to question that if contrary to the conclusion he has reached - the court can in fact make “an anticipatory or proleptic declaration” - how that works in practice. He questioned how it would be known when Amira moved from capacity to incapacity.

Mostyn J considered this could be known to the extent the treating obstetric team had clear evidence that Amira had lost capacity during labour from her treating psychiatrist. Adding that “such an opinion would unquestionably satisfy the terms of s.5(1) and 6 (and if the restraint amounted to a deprivation of liberty, s.4B also)”. Mostyn J expressed “being at a loss as to why the ss4B, 5 and 6 route” was not routinely used. However, in footnotes to the judgment, Mostyn J notes his approach depends on s.4B(2) being seen as stipulating that “D intends, after the emergency is over, to obtain an order authorising the deprivation of liberty”.

Decision

Mostyn J concluded that Amira lacked capacity and the birthing care plan, which had been developed with her input, was in her best interests, as it would work to protect her own health and safety and that of her unborn child. Restraint was authorised in the implementation of that care plan.

What are the practical implications?

Mostyn J’s comments were made obiter dicta as a result of the application having been reconstituted so are not binding. However, adopting such approach would have the potential to shift the focus away from treating teams being encouraged to plan ahead and instead to rely on the defence of emergency intervention. That said, we still strongly encourage treating teams to start and continue a dialogue with a patient as early as possible and to ascertain from them, at a time they have capacity to make decisions as to their health and welfare, what their wishes, values and feelings are.

Then, if an emergency intervention is to be made in a patient’s best interests, it is made with knowledge of what the patient would have wanted and helps guides that best interest decision.