Great Western Hospitals NHS Foundation Trust v AA & Ors (Rev 1)

Where an adult lacks capacity to decide upon serious medical treatment, the court must determine best interests by assessing the clinical alternatives together with the wider personal and family context. The decision must remain focused on the adult’s welfare, rather than the welfare of the foetus alone.

Where a patient detained under the hospital treatment regime of the Mental Health Act 1983 is ineligible for a deprivation of liberty under the Mental Capacity Act 2005, the inherent jurisdiction may provide the legal route for authorising necessary physical treatment in the patient’s best interests. Declaratory relief may authorise proportionate restraint and deprivation of liberty, subject to minimum-force and dignity safeguards.

The applicant NHS Trust sought declarations under the inherent jurisdiction concerning the serious medical treatment of AA, a 25-year-old pregnant woman suffering from bipolar disorder, hypomania and puerperal psychosis. Her membranes had ruptured and clinicians considered that an elective caesarean section under general anaesthetic was safer than attempted medical induction, which required cooperation with intravenous treatment and continuous monitoring.

AA was detained under section 5(2) of the Mental Health Act 1983. The central questions were whether she lacked capacity to decide about the proposed treatment and litigation, whether the treatment was in her best interests, and whether the court could authorise treatment involving restraint and a possible deprivation of liberty.

1. Capacity and best interests. AA lacked capacity to make decisions about the serious medical treatment required for her pregnancy and delivery, and to conduct the proceedings. Her psychotic illness prevented her from understanding, retaining, weighing or applying the relevant information. The elective caesarean section was in her best interests.
2. The court assessed the competing clinical options with AA’s medical interests in focus. It also considered the wider context, including that the pregnancy was wanted, the family was supportive, and those close to AA believed that she would accept the clinicians’ recommendation if she were rational and able to reason objectively. Best interests decisions are not grounded exclusively in medical issues. The court relied on NHS Trust v X (A Child) [2012] 1 FLR 225 and Wyatt v Portsmouth NHS Trust [2006] 1 FLR 554.
3. Legal framework. The proposed obstetric care was physical treatment, rather than treatment for AA’s mental disorder. Because AA was detained under the hospital treatment regime, she fell within Case A of paragraph 2 of Schedule A1 to the Mental Capacity Act 2005 and was ineligible for a Mental Capacity Act deprivation-of-liberty authorisation. Following A NHS Trust v Dr A [2013] EWCH2442 (COP), the inherent jurisdiction provided the route for authorising treatment in her best interests.
4. Declaratory relief and restraint. The declarations supplied legal authority for the Trust to carry out the treatment and a defence to potential criminal or tortious liability for trespass to the person. The court had jurisdiction for that legal purpose, but not to guarantee clinical cooperation. The court authorised examination, monitoring, blood sampling, intravenous treatment, anaesthesia, caesarean delivery and associated care. Reasonable and proportionate restraint, including measures amounting to a deprivation of liberty, was permitted only where necessary, using the minimum reasonable force and taking all reasonable steps to minimise distress and preserve dignity. The court relied on Re W (a minor) (Medical treatment: Court’s jurisdiction) [1993] Fam 64.

Declarations were granted. There was no order for costs, save that the Trust was to pay half the Official Solicitor’s costs, subject to detailed assessment if not agreed.

First-instance application in the High Court (Family Division). An emergency application had been considered by Moor J the previous evening; the matter was then heard substantively by Hayden J, who granted the declarations.