Great Western Hospitals NHS Foundation Trust v AA

Where a pregnant patient lacks capacity and is detained under section 2 of the Mental Health Act, the Mental Capacity Act does not apply. The High Court may instead invoke its inherent jurisdiction to authorise urgently necessary medical treatment. Treatment involving restraint or a significant deprivation of liberty may be authorised where the advantages of proceeding substantially outweigh the disadvantages. In a serious without-notice application, the court may make an interim order to protect the patient and unborn child pending a properly attended full hearing, while withholding a final order until the patient has representation or the Official Solicitor has had an opportunity to assist.

The NHS Trust applied urgently in relation to AA, a 38-week pregnant woman detained under section 2 of the Mental Health Act. AA had bipolar affective disorder, was experiencing a developing puerperal psychosis, and lacked capacity to litigate or decide upon medical treatment. Her membranes had ruptured and induction of labour was medically indicated because of the risk of infection, but she would not co-operate. A caesarean section under general anaesthetic, potentially involving restraint and a deprivation of liberty, was the only practicable alternative.

The application was heard late at night without representation for AA. The issue was whether interim authorisation should be granted pending a full hearing before Hayden J.

1. AA lacked capacity to litigate and to make decisions about her medical treatment. Because she was detained under section 2 of the Mental Health Act, the Mental Capacity Act was not applicable. It was therefore appropriate to invoke the inherent jurisdiction of the High Court.

2. The medical evidence established an urgent need for delivery because ruptured membranes created a serious and significant risk of infection and sepsis. Induction was not feasible without AA’s co-operation, and a caesarean section under general anaesthetic was the only remaining practicable course.

3. The small risks of general anaesthesia and the consequences of a surgical scar were significantly outweighed by the advantages to AA and the unborn child of proceeding. The treatment necessarily involved a significant deprivation of liberty and might require restraint, but those disadvantages were justified by the urgent medical necessity.

4. Given the seriousness of the matter, the late hour, the without-notice procedure and AA’s lack of representation, the court declined to make a final order. It adjourned the application for a full hearing and directed that the Official Solicitor be informed.

5. An interim order nevertheless authorised the treatment if, before the next hearing, AA went into labour and required a caesarean section, or began to show signs of infection. The authorisation applied because, in those circumstances, the advantages of treatment significantly outweighed the disadvantages.