In NHS Trusts v C  EWCOP 17, C was detained under s.2 of the Mental Health Act 1983 with bipolar affective disorder. She was in the late stages of pregnancy and suffering from a severe manic episode. This caused her to be unable to weigh the pros and cons of medical interventions that may be required during the dynamic situation of childbirth. She was unable to retain the relevant information long enough as she could only concentrate or engage with any one topic for up to 15 minutes before requiring a break. This also prevented her from understanding the whole of what was being explained (paras 38-39).
It was proposed that it was in C’s best interests to have an elective caesarean under general anaesthetic. Labour was likely to be a very traumatic experience for her. C’s reaction could be extreme, including physical resistance, that could pose a significant risk to her, her baby, and the staff caring for her. Moreover, continuous tracing of the baby’s heart beat was required, which she was unlikely to tolerate.
Shortly before the hearing, C stated that she wished to have a natural birth in accordance with an earlier birth plan. She wished for minimal intervention, unless there was an emergency, in which case she would have an emergency caesarean if she had to. If that happened, she wanted to stay awake, would like the baby given to her immediately for as much skin to skin contact as possible, and for her birth partner to be with her.
In oral evidence, the Official Solicitor as C’s litigation friend explored less interventionist procedures for the birth, after which he did not oppose the orders sought. The revised care plan was also agreed between all parties and the court determined that the elective caesarean was in C’s best interests for the reasons given at para 58. She subsequently gave birth.
We mention this case as another clear example of the tension between P’s wishes and feelings and the position advocated on P’s behalf. The current practice in the Court of Protection looks to the litigation friend not to represent P in any conventional sense but to instead identify and relay P’s wishes and feelings, investigate and assess the available options, and present what the litigation friend considers to be in P’s best interests. In this case, it was to agree to a treatment plan which contradicted P’s position and not to oppose the application.
As a result, we would suggest, P’s wishes and feelings are not being given full effect to by those representing – as opposed to those ‘re-presenting’ – P. The history of the litigation friend is a long, tortuous and curious one and is in need of reform. For a more detailed analysis of the history and the current problems, see the article by Alex, Neil and Peter Bartlett: “Litigation friends or foes? Representation of ‘P’ before the Court of Protection” (2016) Medical Law Review (forthcoming).
[A version of this note appeared in the April 2016 39 Essex Chambers Mental Capacity Law Newsletter]