East Lancashire Hospitals NHS Trust v GH (Out of Hours Application) [2021] EWCOP 18
The health trust made an out of hours application which sought to remove a woman (GH), who was in obstructed labour, from her home to hospital in order to deliver the baby by Caesarean. GH had suffered depression, anxiety and acrophobia which operate to the extent that she had not left the house since 2017 [6]. Although GH had previously indicated that she would go to hospital if necessary, on the evening of the application she declined the advice to go to hospital, after going into labour 72 hours earlier [2].
MacDonald J agreed with Keehan J in An NHS Trust and Anor v FG (By Her Litigation Friend, the Official Solicitor) [2014] EWCOP 30 that there is a heavy burden on Trusts to engage in early and thorough planning in cases of this nature, in order to prevent the need for urgent application to the out of hours judges [5]. However, in this instance he accepted that this was an appropriate circumstance for an out of hours application. Until late that afternoon GH was assessed to have capacity with respect to decisions about managing her pregnancy and had agreed to hospital if necessary. It was only later in the day that it became clear that GH’s anxiety and agoraphobia “had become the dominant feature in her decision making” [5].
In considering GH’s capacity to make decisions pursuant to the section 15(1) of the Mental Capacity Act 2005, MacDonald J stated that “GH simply does not acknowledge the risk of serious injury or death or accept…it is relevant to her as long as she remains in her “safe space” [31]. This demonstrated that GH’s agoraphobia had overwhelmed her ability to use and weigh information as required to agree to be admitted to hospital and undergo an emergency operation.
As to determining the question of best interests under section 4(1) of the act, having balanced the risks of increased anxiety, MacDonald J gave considerable weight to her previous willingness to go to hospital. Which in MacDonald J’s view established that GH wanted for her and the baby to stay alive, which satisfied him that it was in GH’s best interest to be conveyed from her home [33]. To this end, MacDonald J authorised use of reasonable restraint, but echoed his own statement in Cambridge University Hospitals NHS Foundation Trsut v BF [2016] that this was a “grave step indeed to” compel a patient to undergo medical treatment [41].
The full judgment can be accessed here.
