Application by NHS Trust for the court to make an anticipatory and contingent declaration in the event that the pregnant P became incapacitated. The application was granted.
The novel issue in this case was that the P, who was pregnant, did not, at the time of the hearing, lack capacity to make decisions in respect of the birth and the treatment and necessary procedures in connection therewith. However, based on her history, her clinicians were agreed that there was a substantial risk that she may become incapacitous in relation to such decisions at a critical moment in her labour. The court was therefore asked to make an anticipatory and contingent declaration, in relation to the birth plan, in the event that the pregnant P became incapacitated.
The application was successful, Mr Justice Francis saying:
I acknowledge that I am not currently empowered to make an order pursuant to section 16(2) because the principle enunciated in section 16(1), namely incapacity, is not yet made out. However, as I have already said, there is a substantial risk that if I fail to address the matter now I could put the welfare, and even the life, of CD at risk and would also put the life of her as yet undelivered baby at risk. As I have said, I am not prepared to take that risk. I am prepared to find that, in exceptional circumstances, the court has the power to make an anticipatory declaration of lawfulness, contingent on CD losing capacity, pursuant to section 15(1)(c).
He also said that anticipatory or peremptory orders should be made in the declaration itself and not be buried within a possibly long judgment.
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