Anticipatory declarations

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

We often deal with patients whose capacity fluctuates. Clinicians are understandably anxious when dealing with a person who is facing a major intervention, which by itself may render them temporarily incapacitated, just at the moment when we most need them to take decisions relating to their treatment and care. A common and pressing example of this is where a woman facing childbirth will need to cooperate with what may be a fast-changing clinical situation; complex balancing exercises to decide between a natural birth and Caesarean section may be required. Unsurprisingly, clinicians and judges have mulled the idea of anticipatory declarations, with the intention of seeking judicial authority for interventions, including deprivation of liberty, in the event of foreseeable incapacity. At least three Court of Protection decisions since 2019 have resulted in anticipatory or proleptic orders in respect of persons who were capacitous at the time that the order in question was made.

In a judgement handed down on 14th June 2023, an application for an anticipatory declaration was dealt with in relation to “Amira”, a 25-year-old woman who was due to give birth on the day of the hearing.

('Amira’ is a pseudonym given by the judge, Mostyn J; who fears that the ‘alphabet soup’ of initials risks dehumanising the patients whose cases are heard in the Court of Protection; an eminently understandable view).

Amira had hebephrenic schizophrenia. At the time of the hearing, she had capacity both to make decisions as to her medical care, and to conduct legal proceedings. She had in the past suffered from relapses of her illness, with severely disturbed behaviour, physical aggression, hallucinations, and emotional dysregulation. Amira knew that after delivery, her baby would be taken from her by the local authority, and that she would be returned to detention in a secure mental hospital. Her clinicians were increasingly anxious that as she approached these events, Amira would lose her capacity in both spheres of decision making. If she got to the point where restraint was required to deliver the baby, and she lacked capacity, legal authority would be required as an emergency.

Having reviewed the Mental Capacity Act 2005 and the common law, Mostyn J concluded that the statute (and anticipatory declarations generally) are inapplicable to a person who has capacity at the time the matter was being considered by the court (as in Amira’s case): ‘This applies equally to those persons who have capacity now but are never likely to lose it, as it does to those who have capacity now, but might lose capacity at some point in the future’. He concluded that a court cannot make a proleptic finding; such as, that it is more likely than not that at some point in the future that person will lose capacity. In summary, he did not consider that the High Court has power to authorise a deprivation of liberty of a capacitous person.

Ultimately, by the time of the hearing, Amira’s condition had deteriorated to the point where she no longer had capacity to make medical decisions, or to conduct legal proceedings. There was no evidence that she wished to imperil her life, or that of her unborn baby. A care plan was formulated which was fully consistent with her wishes and feelings, Amira having been engaged in their formulation.

For these reasons, the judge found the proposed plans for the conduct of her delivery to be in Amira’s best interests.

In words said ‘along the way’ during the judgement, Mostyn J noted that the MCA 2005 would provide equivalent authority to an anticipatory declaration; ‘…it seems to me to be the route which Parliament intended to be used in such circumstances…’. But there are clinical reasons to hope that anticipatory decisions will endure. Seeking legal authority in the midst of a clinical crisis provides anxious uncertainty. It remains to be seen whether Trust solicitors will be influenced by his words, given that none of his criticisms of anticipatory declarations had a bearing on the reason underpinning the decision he made in Amira’s case. Perhaps the subject will find its way to the Court of Appeal.

Mr Robert Wheeler
Department of clinical law