In GSTT & SLAM v R  EWCOP 4, Hayden J has come back to the extremely thorny question of what the court is meant to do where it is confronted with the position that the person before it currently has capacity to make the relevant decision(s), but has clear evidence that under some circumstances they may not do. A number of recent judgments (in particular that of Francis J in United Lincolnshire NHS Hospitals Trust v CD  EWCOP 24) have grappled with this question, but Hayden J’s judgment is by the fullest consideration of the position.
Hayden J had been required to determine at very short notice an application concerning R who, on the day he determined the case, was 39 weeks and six days into her pregnancy. She had a diagnosis of Bipolar Affective Disorder which was characterised by psychotic episodes. R was detained in a psychiatric ward which fell within the jurisdiction of South London and Maudsley NHS Trust; GSTT was the Trust responsible for R’s obstetric care. Given the urgency of the application, Hayden J had given his decision on the spot, on the basis of certain key facts:
2. […] All the treating clinicians agreed: R had capacity to make decisions as to her ante-natal and obstetric care; there was a substantial risk of a deterioration in R’s mental health, such that she would likely lose capacity during labour; there was a risk to her physical health, in that she could require an urgent Caesarean section (‘C-section’) for the safe delivery of her baby but might resist.
Procedurally, the position was problematic, because Hayden J had been in the “entirely invidious position” of having to determine applications which have an obviously draconian complexion to them, in circumstances which were far from ideal. There was not time to appoint the Official Solicitor to represent R, although the Official Solicitor was able to act as Advocate to the Court, a role “which involves very different obligations and is not to be conflated with the role of the Official Solicitor as litigation friend.” However,
6. […] self-evidently, a decision had to be made. I was satisfied that the application was well founded and that the declarations contended for met R’s best interests. I do however deprecate the delay in bringing the application. The delay was avoidable but perhaps not so starkly so as first appeared. It became clear to the applicants, only ten days before the August hearing, that R had stopped taking her anti-psychotic medication. This manifestly required a re-evaluation of the risk and the need to reassess the birth plan.
Hayden J made declarations under s.15 MCA and pursuant to the inherent jurisdiction of the High Court to the effect that R currently had capacity to make decisions regarding her obstetric care and the delivery of her baby, and that in the event that she came to lack that capacity, it would in her best interests for care and treatment to be delivered in accordance with the care plan before the court including, if required, to deprive her of her liberty.
However, Hayden J had been concerned at the time as whether the declarations that he had made fell properly within the scope of s.15 MCA 2005 or fell to be made under the inherent jurisdiction of the High Court. He therefore required further written submissions from the applicant Trusts and the Official Solicitor as Advocate to the Court:
11. […] in order that I could properly identify the framework of the applicable law with greater clarity. It is axiomatic that if anticipatory declarations are to be made relating to the capacitous and which have the effect of authorising intervention and/or deprivation of liberty at some future point where there is unlikely to be recourse to a court (following a subsequent loss of capacity) that should be rooted very securely in law.
In fact, however, R:
12. […] did not give birth until 8th September 2019. She was cooperative throughout the labour and her healthy child was born by spontaneous vertex vaginal birth. There was, as it transpired and as R had always asserted would be the case, despite the cogent medical concerns, no need for a caesarean. This was her sixth child and such records as were available indicated that C section had not been necessary in the past. I have been told that the police attended and a Police Protection Order (PPO) was issued followed by Local Authority applications for an Emergency Protection Order (EPO) and an Interim Care Order (ICO).
13. Of course, these developments render my earlier concerns somewhat academic. Nonetheless, I granted these draconian orders and they require, properly to be justified in law. Moreover, they should, in my judgement, be clarified properly for future cases.
The judgment is necessarily complex, but can be reduced to the following key points in terms of jurisdiction.
First: it is never proper for the court to make a decision under s.16 in respect of a person who currently has capacity. Not only did Hayden J consider that explicit wording of s.16(1) specifically and unambiguously curtails the ambit of the section, empowering the court to exercise a jurisdiction under s.16 in respect of a person who does not lack capacity but, who may lose on some future contingency, would be infringing the cardinal principle of s.1(2) MCA 2005 i.e. that a person is not to be treated as unable to make a decision, unless all practical steps have been taken to help him to do so without success. Logically, such steps could not have been taken with an individual who remained capacitous at the time of the application;
Second: conversely, there is no such limitation in s.15(1)(c), so that the court is able to declare whether an act yet to be done (in respect of a person who currently has capacity to make the decision) will be lawful or not. As Hayden J noted, there is:
35 […] the recognition within the Act that capacity might be ‘fluctuating’ and, further, that various strategies may be deployed to enable an incapacitous individual to achieve capacity in a particular sphere of decision taking, where properly and appropriately assisted. This may require the salient issues to be distilled into a format which resonate more comfortably with P’s own experiences in life and his personal characteristics. It may, in different circumstances, involve a change, perhaps even temporarily, to P’s medical regimen. In another context it may involve the appointment of an intermediary e.g. to assist in achieving capacity to litigate. All this recognises that ‘capacity’ is not a static concept. It follows that, inevitably, this Court will find itself involved in situations in which an individual may have capacity to take decisions on some issues but not on others and facing circumstances where P may be able to take decisions on one day that he is unable to on another. Manifestly, it is neither practical nor desirable for the Court to resolve questions of fluctuating capacity on a day to day basis. It may, depending on the individual facts, have to make orders which anticipate a likely loss of capacity if it is going to be able to protect P efficiently.
36. Any declaration relating to an act ‘yet to be done’ must, it seems to me, contemplate a factual scenario occurring at some future point. It does not strain the wording of this provision, in any way, to extrapolate that it is apt to apply to circumstances which are foreseeable as well as to those which are current. There is no need at all to diverge from the plain language of the section. In making a declaration that is contingent upon a person losing capacity in the future, the Court is doing no more than emphasising that the anticipated relief will be lawful when and only when P becomes incapacitous. It is at that stage that the full protective regime of the MCA is activated, not before.
Third: the power to make declarations of lawfulness under s.15(1)(c) does not extend to authorisation of deprivation of liberty, because the MCA itself limits the circumstances under which it can be used for these purposes. Drawing upon the previous decision of Baker J (as he then was) in An NHS Trust v Dr A  EWHC 2422 (COP), Hayden J held that it would, however, be lawful to use the inherent jurisdiction to authorise a deprivation of liberty in such circumstances, because the wording of the MCA would otherwise leave a gap:
44. […] Having concluded that Section 15 (1) (c) is apt to authorise contingent declarations, it would be rendered nugatory if there were no mechanism to authorise the contemplated intervention as being lawful. This is, to my mind, a paradigmatic situation for recourse to the inherent jurisdiction.
On the facts of the case itself, Hayden J noted that:
56. The mother in the case before me was reported as having told medical staff that a caesarean section would be ‘the last thing she would want’. People use this phrase loosely, frequently it means it is something they would never want. It can also be interpreted very literally as being an option only to be contemplated ‘last’ of all. I do not consider that it would be morally or intellectually honest of me to give it the latter construction. I think that would be to distort the essence of the evidence and the impression of the mother’s wishes that the medical staff were interpreting and which generated this application. It is, I think, important to acknowledge, as others have done, that judges in the past may have strained to conclude that women, in these difficult circumstances, lacked decision making capacity in order, for the highest of motives, to protect the life or health of both the mother and her unborn child. To give the mother’s articulated position this very limited interpretation would, on careful reflection, be sophistry, designed to enable me to protect the mother and her unborn child without confronting what I consider to be the true evidential picture.
57. The particular challenge presented by the facts of this case and those before Cobb and Francis JJ’s is that unlike her capacitous coeval, the mother, upon losing capacity, would lose the opportunity to express a changed decision. The birth process is, self-evidently, highly dynamic. It will frequently require obstetric re-evaluation. With considerable diffidence, I suspect that many birth plans are changed, when confronted with the painful realities of a complicated labour. Many expectant mothers who may have vociferously disavowed epidurals re-evaluate this choice in labour. This is true of the whole gamut of obstetric options, including both induction and caesarean section. Accordingly, the strength and consistency of previously expressed views must be considered with intense subtlety and sensitivity in this highly uncertain and emotionally charged obstetric context. Thus, it seems to me, that I must balance my instinctive inclination to protect the autonomy of a woman’s control over the invasion of her own body, with my obligation to try to ensure that her options on losing capacity are not diminished. It may be that this is not capable of resolution in principle. As always in this sphere, much will depend on the circumstances of the individual case. What, I speculate, would the medical staff be expected to do if, the Court having granted a declaration as to the unlawfulness of intervention, they found themselves confronted with a desperate but incapcitous woman screaming for unspecified medical assistance during the birth process? Certainly, there would not be time to contact a judge. Moreover, in those circumstances, I find it hard to see how the judge’s evaluation would be likely to add anything to the assessments of the nursing and medical team.
63. […] The caselaw has emphasised the right of a capacitous woman, in these circumstances, to behave in a way which many might regard as unreasonable or “morally repugnant”, to use Butler-Sloss LJ’s phrase. This includes the right to jeopardise the life and welfare of her foetus. When the Court has the responsibility for taking the decision, I do not consider it has the same latitude. It should not sanction that which it objectively considers to be contrary to P’s best interests. The statute prohibits this by its specific insistence on ‘reasonable belief’ as to where P’s best interests truly lie. It is important that respect for P’s autonomy remains in focus but it will rarely be the case, in my judgement, that P’s best interests will be promoted by permitting the death of, or brain injury to, an otherwise viable and healthy foetus. In this case it may be that R’s instincts and intuitive understanding of her own body (which it must be emphasised were entirely correct) led to her strenuous insistence on a natural birth. Notwithstanding the paucity of information available, I note that there is nothing at all to suggest that R was motivated by anything other than an honest belief that this was best for both her and her baby. It is to be distinguished, for example, from those circumstances where intervention is resisted on religious or ethical grounds. In the circumstances therefore, it seems reasonable to conclude that R would wish for a safe birth and a healthy baby.
Hayden J tested his reasoning by considering whether R:
65 […] by parity of analysis, should be regarded as being in essentially the same position as an individual who had prepared an Advance Decision in the correct manner. Had R done so, could this application have been sustained? I say, at once, that I consider that an Advance Decision, properly constructed, with the appropriate safeguards in place would, in my judgement, be binding on the Court. I do not however, consider that R is in an analogous position. In preparing and drafting a carefully worded Advanced Decision, which is compliant with the statutory safeguards, P will, of necessity, have been required to identify the clear circumstances in which the refusal to comply is made. Neither, in my view, is the requirement for a signature in the presence of a witness to be regarded as a mere legal formality. It is part of a process in which a competent and capacitous adult can safely be regarded as having made prospective instructions on issues of the utmost gravity. Self-evidently, a statement, as made here, that a caesarean section is ‘the last thing I would want’ would not be compliant with the provisions. This is not because it is expressed in lay terms, it is because it is not sufficiently choate. A woman might choose, for example, not to have a caesarean even though her own life is at risk but elect to do so if the life or health of her baby is compromised. Also, and unequivocally, the capacitous adult who has prepared a statutory compliant Advanced Decision, has consciously waived the right to change her mind upon loss of capacity. R cannot be regarded, on the available evidence, as being in that position.
Hayden J made two further observations of wider importance.
First, he re-emphasised the crucial importance of clear and timely planning, particularly in cases involving obstetric care and caesarean section, referring to the guidance given by Keehan J in NHS Trust & Ors v FG  EWCOP 30. As Hayden J noted:
16. Careful planning and the avoidance of delay, where that is not purposeful, is intrinsic to every case in the Court of Protection, without exception. The focus however is, as Keehan J has emphasised, particularly acute in cases such as this. The need for an informed birth plan, identifying the appropriate support required, reviewed by the Court in a way which permits it properly to be scrutinised and facilitative of representation for P is essential. So too, is the need for a fully transparent process, given the fundamental rights and freedoms that are engaged here. As Keehan J highlights, these rudimentary requirements are a facet of the Article 6 rights of all involved. Moreover, failure to plan in a careful and properly informed manner may jeopardise the health, even the lives of the mother and the unborn baby. Thus, it follows, to my mind, inexorably, the court will need to be involved in a way which anticipates rather than being merely reactive to crisis or emergency.
17. None of this can be permitted to occlude the reality that the court is being invited to make orders of a profoundly intrusive nature which also contemplate a deprivation of liberty. In this case the application arises in the face of opposition by a woman who, all agree, was capacitous at the time of the application and unrepresented. It is a profound understatement to say that such a situation should give any court real concern for the autonomy of the individual at the centre of the process.
Second, Hayden J noted that he was not being asked to authorise medical intervention in relation to a capacitous adult:
33. […] I am being invited to determine whether, if the adult in question loses capacity, a medical intervention can be authorised which is contrary to her expressed wishes, whilst capacitous. In virtually every application that comes before this Court, relating to medical treatment, the answer to the question posed here would be a resounding ‘no’. There is now a raft of case law, including many of my own judgments, which illustrate the efforts the Court of Protection will go to in order to identify what the likely wishes of P would be, in circumstances where P has lost the capacity for the relevant decision making (see e.g: Cumbria NHS Clinical Commissioning Group v Ms S & Ors  EWCOP 32; Briggs v Briggs  EWCOP 53; Salford Royal NHS Foundation Trust v Mrs P  EWCOP 23; PL v Sutton Commissioning Group  EWCOP 22). Whilst the identified wishes of P will not in and of themselves be determinative, they will always be given substantial weight and are highly likely to be reflected in the order or declaration the Court makes. This careful approach, forged by the case law of the last few years, is adopted by the Royal College of Physicians and the British Medical Association in their guidance ‘Clinically – assisted nutrition and hydration (CANH and Adults who lack the capacity to consent’
Hayden J did not shy away from what he had been asked to do, or what he did. Even if, as so often, the worst that had been anticipated did not come to pass, it was right for the court to have been asked to consider the position in advance – even if, in reality, it was only able to do so in a very problematic fashion because of the delay in issuing the proceedings. It is to be hoped that the guidance Hayden J issued in January 2020 may start to trigger the processes required to bring proceedings at much earlier stages – and, in particular, to reinforce the message that going to the Court of Protection is not necessarily a failure (and hence to be avoided), but rather a recognition of the gravity of the intervention that is being contemplated (and hence a necessary step to protect the rights of the person). In this context, this paragraph from the judgment has a particular resonance:
48. The case law, to which I have referred, emphasises the ‘exceptional’ circumstances of the particular cases. However, in the context of the applications that come before Tier 3 (i.e. High Court) judges of the Court of Protection, many cases may properly be described as exceptional. Certainly, the families of those involved would consider them to be so. The cases frequently present issues of medical, moral, legal complexity. The MCA emphasises the importance of identifying P’s capacity to take individual decisions. The jurisdiction is highly case or fact specific. Against this backdrop it is easy to see that the concept of ‘exceptional’ is vulnerable to being corroded i.e. interpreted as having wider application than that which the Court might intend. The right of all individuals to respect for their bodily integrity is a fundamental one. It is every bit the right of the incapacitous as well as the capacitous. (emphasis added).
Amongst other parts of a judgment which will no doubt be the subject of considerable commentary from those concerned with the Court of Protection, the MCA, reproductive rights, and the balancing of rights (to pick but a few), it may just be worth noting that Hayden J appears to have contemplated that it would be possible for a woman to make an advance decision to refuse a Caesarean section. This is logical (if it is analysed as being a ‘treatment’), reinforces the need to think about advance decisions in the context of perinatal psychiatry, but poses some very stark questions as to the consequences.