North Bristol NHS Trust v R [2023] EWCOP 5

Application for declarations that R lacks capacity to decide whether her unborn baby should be delivered pre-term by elective Caesarean section and that this would be in her best interests. 

The medical team at the applicant trust had fears that R’s baby risked severe brain damage or death if allowed to go full term. R herself had not expressed any objection to a Caesarean but she had refused foetal monitoring in the past and so there was a danger she could change her mind. The issue of capacity was not clear cut as, while recent assessments gave clear indications of incapacity, one had found that R had capacity in this area. 

In this judgment, MacDonald J reviews the history of the case and the capacity assessments. He then sets out the law relating to capacity in a situation where there is no formal diagnosis of an impairment or disturbance of R’s mind. As he says at [44] this absence of a formal diagnosis raises the question of whether one is necessary in order for the terms of s.2(1) of the MCA 2005 Act to be satisfied. Following Re SB and PC v City of York he concludes at [48] that the court is not precluded from reaching a conclusion in the absence of a formal diagnosis and goes on to conclude she lacks capacity. On the issue of best interests, he reminds himself that he is only concerned with R’s best interests, not those of the baby. However, accepting the medical evidence he decides the Caesarean would be in R’s best interests as delivering a dead child would be extremely traumatic for her. 

Read the full judgment on the National Archives