Does A Caesarean Section For A Patient Who Lacks Capacity Always Require A Court Order?

Author:Ms Gemma Brannigan and Peter Cutler
Profession:Clyde & Co

We recently helped our NHS Trust client to obtain an emergency Order from the Court of Protection to perform a c-section for a patient who lacked the mental capacity to consent or refuse. Everybody involved seemed to agree that a c-section was a good idea. This had misled the treating team into believing that a court Order wouldn't be necessary. We were contacted when she was over 35 weeks pregnant and the c-section was planned for 38 weeks.

In NHS Trust 1 and NHS Trust 2 v FG (By her litigation friend, the Official Solicitor (2014) ECWOP 30, the Court of Protection unusually issued guidance, which includes that in some circumstances a planned, uncomplicated c-section does not require an application to the Court, as it does not constitute 'serious medical treatment'. Although some very experienced advocates doubt whether this can still be relied upon, based on more recent obiter comments in Court (but not written into the conclusion of a judgment). Practice Note 9E is useful, but is said to be under review.

In the guidance the following categories would tip a case into 'serious medical treatment' and thereby require a court Order:

where the merits of performing the procedure are finely balanced; where more than transient restraint may be required; where the patient's obstetric history presents a high risk of complications; or where the patient's psychiatric condition could be adversely affected by the intervention. In our case, there was a risk that the patient might require restraint to perform the procedure due to her record of impulsive absconding. As a result, an application to court was mandatory. The patient already had a solicitor and a litigation friend who knew her well from on-going legal proceedings.

We therefore worked quickly with the Trust to obtain detailed witness statements from the midwife, anaesthetist and obstetrician, including information on each of the birth options and alternatives in a detailed birth plan.

In approving the order, Mr Justice Moor in the Royal Courts of Justice praised the parties for working together constructively to agree a treatment plan which was clearly in the patient's best interests - this was easy to do with the patient's representatives. With the order in place, the clinicians were supported and confident of what they could lawfully do following each alternative plan.

This case demonstrates:

the importance of midwives and clinicians recognising the potential need for a court Order at...

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