Mr Justice Keehan has handed down judgment in An NHS Trust and Anor v FG (By Her Litigation Friend, the Official Solicitor)  EWCOP 30
in which he gives guidance on the process that should be followed where a treating Trust is concerned and dealing with a pregnant women who has mental health problems whilst potentially lacking capacity to litigate and make decisions about her welfare and/or medical treatment.
The intention of the Guidance is (para ):
i) to prevent the need for urgent applications to be made to the out of hours judge; and
ii) to ensure trusts do not rely inappropriately on the provisions of s 5 of the MCA.
Keehan J continues at paras  - :
'The Guidance is not intended to restrict the cases where Trusts make an application to the Court to only those cases which fall within categories 1 – 4. It identifies those categories of cases which should be the subject of an application. It must always remain open to Trusts to make an application to the Court in cases of this nature if the individual circumstances of the case justify it.
I hope that early and thorough planning in cases of this nature will result in the proper identification of cases which require an application to the Court and, on the contrary, those which can properly and appropriately be managed under the provisions of MCA 2005 and/or MHA 1983 without judicial involvement.'
The full Guidance is set out below.
1. In this guidance the following terminology will be used:
‘P’ the pregnant woman who lacks, or may lack, the capacity to take decisions in relation to her antenatal, perinatal and postnatal care as a result of an impairment of, or a disturbance in, the functioning of her mind or brain resulting from her psychiatric illness;
‘obstetric care’ all care and treatment needs brought about by P’s pregnancy including antenatal care, management of labour and delivery, and postnatal care;
‘Mental Health Trust’ the NHS Trust responsible for P’s psychiatric care, whether in the community or in a psychiatric hospital;
‘psychiatric hospital’ any mental health unit at which P resides, whether detained pursuant to statutory powers or as a voluntary patient;
‘acute hospital’ a hospital other than the psychiatric hospital at which it is intended that P will receive obstetric care and deliver her child;
‘Acute Trust’ the NHS Trust responsible for the acute hospital;
‘Court’ either the Court of Protection or the Family Division of the High Court.
2. This Guidance applies in cases where a pregnant woman who lacks, or may lack, the capacity to make decisions about her obstetric care (see para  above) resulting from a diagnosed psychiatric illness, falls within one of the four categories of cases set out in paragraph 3 below.
3. An Acute Trust and/or Mental Health trust should make an application to seek orders in relation to P’s obstetric care to the Court of Protection or to the Family Division of the High Court if the case falls within any of the following four categories, namely where:
Category 1 – the interventions proposed by the Trust(s) probably amount to serious medical treatment within the meaning of COP Practice Direction 9E, irrespective of whether it is contemplated that the obstetric treatment would otherwise be provided under the MCA or MHA; or
Category 2 – there is a real risk that P will be subject to more than transient forcible restraint; or
Category 3 – there is a serious dispute as to what obstetric care is in P’s best interests whether as between the clinicians caring for P, or between the clinicians and P and/or those whose views must be taken into account under s.4(7) of the MCA; or
Category 4 – there is a real risk that P will suffer a deprivation of her liberty which, absent a Court order which has the effect of authorising it, would otherwise be unlawful (i.e. not authorised under s4B of or Schedule A1 to the MCA).
4. In relation to category 1, it is recommended that the following categories of case should be the subject of an application to the court, namely:
(i) delivery by caesarean section is proposed in circumstances where the merits of that proposal are finely balanced; or
(ii) delivery by caesarean section is proposed and is likely to involve more than transient forcible restraint of P.
5. It may be appropriate to make an application to the court in cases which do not fall within the categories set out in paragraph 3 above; it will depend on the facts of the case. If an application is so made, the provisions of this Guidance should be followed.
6. The early identification of an individual in respect of whom an application might have to be made is essential. In the case where P is detained under the provisions of the Mental Health Act 1983, the lead professional is likely to be a treating psychiatrist at the hospital where P is detained. In the case where P is living in the community the lead professional is likely to be a member of P’s midwifery team.
7. Once P has been so identified, the Acute and Mental Health Trusts should liaise to assess P’s capacity to make decisions in respect of her obstetric care and to plan how and when such care is to be delivered in her best interests.
8. An assessment of P’s capacity to litigate should be undertaken; this will usually be performed by P’s treating psychiatrist.
9. Capacity may, of course, fluctuate and it is extremely important to keep the issue of capacity under regular review.
10. Where there are concerns about P’s ability to care for her unborn child the Acute and/or Mental Health Trusts should notify the relevant social services department of P’s case if social workers are not already involved with her. The local authority should commence child protection procedures immediately upon receipt of a referral. Thereafter, there should be regular liaison and co-operation between the Acute Trust, the Mental Health Trust and the local authority.
11. The Acute and Mental Health Trusts, together with the relevant local authority, should hold regular planning and review meetings (‘professionals meetings’). Those meetings should be minuted. Multi-agency co-operation is likely to be an essential feature of the planning process to achieve the best outcome for P and her unborn child.
12. An identified clinician from the Acute Trust or the Mental Health Trust should be appointed to chair the planning and review meetings.
13. Part of the planning process should involve identifying whether and, if so, when a decision by the Court will be required to authorise obstetric care or any deprivation of liberty to facilitate its provision.
14. The planning process should include consideration of an assessment of the risk of harm, if any, which P poses to herself, to her unborn child or to others. Where any professional considers such a risk exists that assessment must be recorded in writing and presented at the next professionals meeting.
15. If as a result of the risk assessment the local authority proposes to make an application under the inherent jurisdiction for permission to withhold the care plan for the unborn child from P, the application should be made, save in the case of a genuine emergency, no later than 4 weeks before the expected date of delivery. (The threshold for the granting of such an application is high and applications will not be granted routinely).
16. If an application is made by either the Trusts or by the local authority for permission not to notify P of the application(s) and it is thought appropriate to apply for a Reporting Restrictions Order, the applicant(s) must give full and proper notice to the print and broadcast media of the same.
17. A decision by one agency to withhold information from any other agency must be recorded identifying the cogent reasons for the decision. The agency, from whom information is to be withheld, must be notified of the same at the earliest opportunity.
18. Where it is decided that P’s case falls within one of the four categories set out in paragraph 3 above or it is otherwise decided to make an application, an application should be made to the court at the earliest opportunity.
19. Save in a case of genuine medical emergency, any application should be made no later than 4 weeks before the expected date of delivery. This time frame is required for the following reasons:
(i) where P is assessed as lacking capacity to litigate, it will enable the Official Solicitor to undertake any necessary investigations;
(ii) to ensure the final hearing is listed and heard at least a few days before the proposed interventions; and
(iii) to enable a directions hearing to be held around 2 weeks before the final hearing. The court and the parties will then have the opportunity to ensure the court has all the relevant and necessary evidence at the final hearing.
20. In compliance with the timetable set out above, the Trusts should in a timely manner, take the following steps:
(i) issue the application
(ii) notify the Official Solicitor of the application;
(iii) disclose any evidence to the Official Solicitor which they consider appropriate;
(iv) seek an urgent directions hearing, preferably around two weeks before the final hearing, at which disclosure and the scope of the evidence can be determined;
(v) liaise with the Clerk of the Rules to list the substantive hearing at an early stage.
21. It is important that the Trusts should seek early advice and input from their legal advisers.
22. Late applications are to be avoided save in a case of genuine medical emergency. They have four very undesirable consequences:
(i) the application is more likely to be dealt with by the out of hours judge and without a full hearing in public;
(ii) the available written evidence is more likely to be incomplete and necessitate substantial oral evidence;
(iii) it seriously undermines the role that the Official Solicitor can and should properly play in the proceedings; and
(iv) it deprives the court of the opportunity to direct that further evidence, including independent expert evidence, if necessary, is obtained in relation to the issue of capacity or best interests.
This approach is dictated by P’s Article 5, 6 and 8 rights and best interests.
23. The following evidence should be filed and served in every application:
(a) In the event that P is to be transferred from a psychiatric hospital to an acute hospital for her obstetric care, a care plan from the Mental Health Trust for that transfer, to include:
(i) when and, if not at a defined time, the circumstances in which P is to be transferred;
(ii) the form of transport (ambulance, secure taxi etc.)
(iii) which members of staff are to accompany P;
(iv) an assessment of the prospects of P not co-operating with the transfer;
(v) whether any specialist advice has been obtained in relation to the restraint of pregnant women and, if it has, the nature of that advice;
(vi) the plans for any restraint that may be used to facilitate the transfer, including who is to undertake the restraint, at whose direction, and with a description of the techniques to be used;
(vii) a clear description of what P’s status will be under the MHA during transfer and whilst at the acute hospital.
(b) A care plan from the Acute Trust for P’s obstetric care, including:
(i) the obstetric interventions and care that are proposed;
(ii) what anaesthesia is planned, or may be required
(iii) when, where and by whom the interventions, care and anaesthesia are to be delivered;
(iv) what further interventions may become necessary and in what circumstances.
(c) A care plan from the Acute Trust relating to the issue of restraint at the acute hospital, including:
(i) an assessment of the prospects of P not complying with the obstetric interventions and care that is proposed;
(ii) in a stepwise and escalating fashion, a description of the measures and techniques to be used;
(iii) who is to undertake the physical or chemical restraint;
(iv) whether any specialist advice in relation to the restraint of pregnant women has been obtained and, if so, the nature of that advice.
(d) A witness statement from P’s responsible clinician (or to the extent that he/she cannot deal with the issues, from others) which:
(i) contains an overview of P’s psychiatric history;
(ii) details the liaison between the psychiatric and obstetric teams caring for P;
(iii) includes a focused assessment of P’s capacity to consent to the obstetric treatment which is proposed;
(iv) sets out the duration for which P’s lack of capacity is likely to persist despite any steps that can reasonably be taken to help her regain capacity;
(v) contains an assessment of the prospects of P not co-operating with the obstetric care that is proposed and its alternatives;
(vi) endorses the plan for transfer and any restraint during it;
(vii) compares the impact upon her mental health of the proposed obstetric treatment and restraint and any alternatives;
(viii) assesses what obstetric treatment is in P’s best interests from a psychiatric perspective.
(e) A witness statement from a consultant obstetrician (or to the extent that he/she cannot deal with the issues, from others) which:
(i) contains an overview of P’s obstetric history so far as it is known;
(ii) reviews the obstetric care already provided in the present pregnancy;
(iii) details the liaison between the obstetric and psychiatric teams caring for P;
(iv) explains what obstetric treatment and interventions are proposed;
(v) identifies what alternative management strategies exist;
(vi) deals with the anaesthesia which may be used and its risks/benefits;
(vii) refers to the obstetric care plan;
(viii) contains an assessment of the prospects of P not co-operating with the obstetric care that is proposed and its alternatives;
(ix) endorses the care plan for restraint at the acute hospital;
(x) compares the risks and benefits to P of the proposed obstetric treatment and interventions versus the alternatives and justification as to why the plan proposed is in P’s best interests;
(xi) explains why the proposed obstetric treatment and interventions are in P’s best interests.
(f) Witness evidence, which may be contained in the witness statements from the consultant psychiatrist and obstetrician, which:
(i) sets out, insofar as they are able, P’s past and present wishes and feelings and beliefs and values in relation to:
(1) the pregnancy;
(2) obstetric care, including the proposed obstetric care and interventions;
(3) the importance of minimising the risk to her own health during pregnancy and delivery of her baby;
(4) the importance of maximising the prospects of safe delivery of the baby;
(ii) explains whether P knows of the application and, if not sets out the cogent reasons why P has not and should not be informed of the application;
(iii) identifies the individuals whose views should be taken into account in accordance with s.4(7) of the MCA and sets out the gist of their views as to:
(1) whether the obstetric care that is proposed is in P’s best interests and, if not, what care they consider would be;
(2) P’s own past and present wishes and feelings and beliefs and values in relation to the matters in (i) above.
24. Any orders authorising medical intervention, restraint and/or a deprivation of liberty are, of course, permissive and not mandatory. P’s capacity to make decisions and/or the need to take any of the measures authorised by the court must be kept under close review by her treating clinicians and medical professions throughout P’s antenatal, perinatal and postnatal care.
1. Application notice
2. Transfer Care Plan (where relevant)
3. Obstetric care plan
4. Restraint care plan
5. Witness statement from the responsible consultant psychiatrist
6. Witness statement from the responsible consultant obstetrician