What (if any) threshold needs to be satisfied before the Court of Protection can exercise its (relatively) newly discovered ‘contingency’ jurisdiction? This important question was before Katie Gollop QC, sitting as a Deputy High Court judge, in the case of North Middlesex University Hospital NHS Trust v SR  EWCOP 58. The question arose in the question of birth planning for a woman, SR, with a number of mental health difficulties. At the point that the application came before the court, she had capacity to make decisions about her birth arrangements and (perhaps unusually in these case) there was agreement between her and the professionals involved that the right method of delivery was by way of caesarean section. There was, however, a concern that she might lose capacity on or before the point she was to come to hospital for a surgical delivery.
The application came before the court on an urgent basis, which led Katie Gollop QC to add her voice to the consistent judicial chorus of concern as to timing. As she noted:
27. The Guidance given by Keehan J in Re FG  EWCOP 30,  1 WLR 1984 is not limited to pregnant women who lack capacity to make obstetric decisions as a result of a diagnosed psychiatric illness: it also applies to those with fluctuating capacity (see paragraph 9). It requires that application is made “at the earliest opportunity”. In this case it was, or should have been, clear in September [i.e. at least a month before the application was made] that an application would be necessary because SR fell within two of the four categories identified in the Guidance. Those were and are that there was a real risk that she would be subject to more than forcible restraint, and a real risk that she would suffer a deprivation of her liberty which, absent a Court order, would be unlawful. It is necessary to draw attention to the Guidance again because it is still not as widely observed as it should be.
28. Trusts and their advisors may be tempted to think that in a case where all concerned agree that P has capacity, and the medical treatment the clinicians propose to provide is in accordance with the patient’s wishes and feelings, no harm is done by making a late application. That is not the case: the evidence may change, capacity may change requiring the involvement of the Official Solicitor who will struggle to assist if she has no time to prepare, points of complexity may emerge during the hearing, and a late application puts pressure on an already busy urgent applications list. Where, as here, an ongoing situation mandates an application, delay must be avoided.
The matter being before the court, Katie Gollop QC was concerned to understand what the correct test was in law for making an anticipatory declaration or order. She was not in a position, she considered, to determine whether a threshold test was necessary nor, should it, be what the test was. Counsel for the Trust was unable to identify any authority that would assist, and the Official Solicitor was not involved (presumably because SR was considered to have litigation capacity), such that no submissions were received from that corner. However, Katie Gollop QC ventured some observations, as follows:
41. […] First, the making of contingent declarations will almost always be an interference with, or have the potential to interfere with, the Art 8 ECHR rights of the individual concerned to respect for their private and family life, including their autonomous decision making about what is done to them physically. That potential exists even where, as here, the contingent declaration made accords with, promotes, and facilitates the person’s current, capacitous decisions, and thus their autonomy. It exists even in those circumstances because, whether capacitous or incapacitous, people have the right to reconsider their positions and change their minds. Indeed, in an evolving healthcare situation, the changing clinical picture may require reconsideration of previously made decisions. Ideally, everyone should have access to the full range of options when the time comes to put into effect a decision about their private and family life but a contingent declaration or order, restricts that full range. It is for this reason that such relief should only be granted where it is necessary, justified and proportionate, and why the power to grant relief should be used sparingly, or only in exceptional circumstances.
42. In addition, I remind myself that before deciding whether to make any declaration or order, the court must, in accordance with s1(6) MCA, have regard to whether the purpose for which it is needed “can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action”.
43. Given these safeguards, it is unclear whether an additional threshold test which must be crossed before an anticipatory order can been made is needed. It is possible that without one, a general requirement of “exceptional circumstances” or “sparing use”, may risk the corrosion of rights that the Vice President warned against. Here, I bear in mind in his observations in Guy’s and St Thomas’s NHSFT that: “This factual situation i.e. a capacitous woman who is likely to become incapacitous, during the course of labour is relatively unusual but it is not unprecedented” (paragraph 3). It could be that the situations requiring anticipatory relief occur more commonly than the small number of decided cases suggests. On the other hand, a threshold test may limit the court’s power unnecessarily.
44. If a threshold test is required, then it seems to me that a balance of probabilities would be unduly restrictive. (I do not read the Vice President’s use of the word “likely” in Guys and St Thomas’ NHSFT (see paragraph 34 above) as an indication that a contingent declaration should only be made where it is more likely than not that P will lose capacity.) I also agree with Ms Powell that an anticipatory order being final, the existence of a risk, and not merely the reasonable belief that there may be one, is required. I would suggest that “a real risk” that P may lose capacity is the appropriate threshold, and I note that that is the language used by Keehan J in Re: FG. “Real” means more than theoretical (or “technically possible” as Dr B put it), based on credible evidence rather than speculation, and the risk must, of course, be person specific and present at the time the relief is granted rather than historical.
Applying this approach, Katie Gollop QC found that on the facts of the case there was a real risk that SR would lose capacity to make decisions about her labour and birth arrangements. She also found that it was necessary, justified and proportionate to make declarations which permit a caesarean section and restraint, and that SR’s circumstances were exceptional. The decision in relation to the caesarean section itself was clear, not least because of SR’s own (currently capacitous) wishes; the issue of restraint was more nuanced, but, ultimately, on the facts of the case, it was justified.
As a postscript, following judgment, the court was informed that despite some panic attacks during the process, SR’s caesarean section delivery went ahead under a spinal anaesthetic, as planned on the morning of 25 October 2021. Mother and baby were both well.
Although the observations about whether – and if so – what test to apply in contingency planning cases were identified as obiter, they were undoubtedly more than just passing musings. A “real risk” of loss of capacity must, I would suggest, strike the right balance for the reasons identified, in a curious world in which the Court of Protection is being invited to wade into decision-making about a person who currently has capacity in the relevant domains.
Two further points arise for comment. The first was expressly – and importantly – identified by Katie Gollop QC, and relates to communication and information sharing between healthcare professionals. As she identified at paragraph 25: “[a] pregnant woman who is under the care of psychiatric services, whether as an in-patient or in the community needs, and is entitled to, joined up care.” Helpfully, and no doubt alive as a practitioner to the misunderstandings that sometimes arise here, she then read into the judgment the relevant extract from the GMC’s 2018 guidance Confidentiality: good practice in handling patient information:
“Sharing information for direct care
Appropriate information sharing is an essential part of the provision of safe and effective care. Patients may be put at risk if those who provide their care do not have access to relevant, accurate and up-to-date information about them.9 Multidisciplinary and multi-agency teamwork is also placing increasing emphasis on integrated care and partnership working, and information sharing is central to this, but information must be shared within the framework provided by law and ethics.”
The second point arises out of the unusual fact-pattern of this case (unusual in the sense that ‘non-dispute’ cases in this context do not often come before the courts). This was a situation where there was alignment between the wishes of SR and the advice of the teams caring for her. Why, then, was a court application required? On one view, and with sufficiently robust advance planning, it might be thought that SR could have (in effect) bound herself to accept the interventions that she might require to give effect to her will, even if her preferences closer to the time were in conflict with this. This raises ethical questions as well as legal ones (see, here, this work from the Mental Health and Justice project). It is unclear, but likely, that it was the prospect of having to use restraint to bring about SR’s safe transfer to and undertaking of any caesarean section, that triggered the application to court. If so, it is perhaps of some interest no-one seems to have thought that SR could in effect give advance consent to any restraint to which she might be subject. This is particularly so given that the Government has said in the context of the White Paper on Mental Health Act reform that it thinks that the law already provides that it is possible to give advance consent to admission to psychiatric hospital so as to circumvent the need to consider the use of either the MHA 1983 or DOLS if at the point of admission the person is to be confined and lacks capacity to consent. It will be interesting to see whether this position is rolled forward into the draft Code of Practice to the MCA (including the LPS) when it finally makes its way out for consultation.
 See Reforming the Mental Health Act (publishing.service.gov.uk) at page 64. The Independent Review of the MHA 1983 had considered whether or not to introduce such an idea, but could not agree.