Guys And St Thomas NHS Foundation Trust (GSTT) & Anor v R [2020] EWCOP 4

Judgement, following an earlier extempore judgment by Hayden J, concerning the framework of applicable law where the Court is faced with making an anticipatory decision that may result in the deprivation of P’s liberty should they lose a capacity in the future, where the matter was urgent and where the health of an unborn child was also at stake.

Hayden J had made declarations in August 2019 that it would be lawful for the medical team to undertake a Caesarean section on R, who was heavily pregnant, against her wishes should she lose capacity while giving birth and also to implement a postnatal care plan that could involve R’s deprivation of liberty. In the event R gave birth naturally and so the orders were academic but he decided to write this judgment as [13]

“I granted these draconian orders and they require, properly to be justified in law. Moreover, they should, in my judgement, be clarified properly for future cases.”
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In it, he reviews the relevant case law, the statutory framework of the MCA, the Court’s powers to agree to a deprivation of liberty under the statute and the role of inherent jurisdiction. Having also noted that a foetus does not have a right to life, he states at [62] and [63]:

“62. When an individual loses capacity, Section 4 MCA 2005 imposes on the Court of Protection an independent obligation to evaluate P's 'best interests'. In making a contingent declaration i.e. in the event of a loss of capacity, this obligation is also engaged. The Court must assume the onerous responsibility of deciding, for itself, where the best interests of P will lie, recognising that the delivery of her healthy unborn baby will be an intrinsic factor. P's expressed wishes, as I have stated above, are not regarded, within the statutory framework, as synonymous with P's best interests. In particular, the provisions introduce the concept of 'reasonableness'.[…..]

“63. The caselaw has emphasised the right of a capacitous woman, in these circumstances, to behave in a way which many might regard as unreasonable or "morally repugnant", to use Butler-Sloss LJ's phrase. This includes the right to jeopardise the life and welfare of her foetus. When the Court has the responsibility for taking the decision, I do not consider it has the same latitude. It should not sanction that which it objectively considers to be contrary to P's best interests. The statute prohibits this by its specific insistence on 'reasonable belief' as to where P's best interests truly lie. It is important that respect for P's autonomy remains in focus but it will rarely be the case, in my judgement, that P's best interests will be promoted by permitting the death of, or brain injury to, an otherwise viable and healthy foetus. In this case it may be that R's instincts and intuitive understanding of her own body (which it must be emphasised were entirely correct) led to her strenuous insistence on a natural birth. Notwithstanding the paucity of information available, I note that there is nothing at all to suggest that R was motivated by anything other than an honest belief that this was best for both her and her baby. It is to be distinguished, for example, from those circumstances where intervention is resisted on religious or ethical grounds. In the circumstances therefore, it seems reasonable to conclude that R would wish for a safe birth and a healthy baby.”

Read the full judgment on Bailii