Peel J in Leicestershire Partnership NHS Trust & Anor v PQ [2024] EWCOP 73 (T3) has reiterated the need for timely applications to be made in the context of cases involving birth arrangements:
7. The applicants have known about PQ’s pregnancy since week 20, and have long been aware of her mental health history, including potential capacity issues. The application before me should have been made far sooner than the date upon which full term was reached and the birth was due. I understand that the applicants failed to take legal advice until the last moment. As a result, they did not follow the judgment of Keehan J in NHS Trust v FG [2014] EWCOP 30, and in particular the annex thereto, which sets out in clear terms what is required of applicant Trusts in cases concerning obstetric care. Regrettably, almost none of the stipulated steps were taken, including making an application no later than 4 weeks before the due date.
8. When the application was made on Thursday 28 November 2024, it was inevitably accompanied by a request for a hearing that day or the next because of the perceived urgency. The court was placed in an extremely difficult position to try and arrange a listing. It came before me the next day, Friday 29 November 2024. Papers trickled in during the morning. There was no bundle. I had a flurry of last minute requests for legal representatives and clinicians to attend remotely. The Official Solicitor had not been notified of the application until the day before and had next to no information. She was not able to arrange for an agent to meet PQ. Counsel instructed on behalf of the Official Solicitor said candidly that the Official Solicitor could not advance a positive case. Counsel for the applicants invited the court to proceed to a full hearing, with oral evidence, to enable the CS, if approved, to take place at 4.30pm that day. All of this was, to put it mildly, unsatisfactory, as well as being unfair to the subject of these proceedings, PQ.
9. In the end, I decided to adjourn from Friday 29 November 2024 to Monday 1 December 2024. By good fortune, the medical presentation which was thought to be so urgent on Friday 29 November 2024 (the risk of pre-eclampsia) dissipated over the weekend and the case, while still urgent, was not at the level of immediate and imperative necessity which it appeared to be.
10. The lesson from all of this is for applicant Trusts, when dealing with potential issues about obstetric care, to follow the guidance of Keehan J scrupulously. Failure to do so is likely to create the difficulties which faced me in this case, at a time when judicial resources are under enormous strain. As I have already said, failure to do so is unfair to the patient and likely to be contrary to their best interests.
