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England and Wales Court of Protection Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Z, Re (Rev 1) [2020] EWCOP 20 (03 April 2020) URL: http://www.bailii.org/ew/cases/EWCOP/2020/20.html Cite as: [2020] EWCOP 20 |
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IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF Z
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
OXFORD UNIVERSITY HOSPITALS NHS FOUNDATION TRUST |
Applicant |
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- and - |
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Z (by her litigation friend, the Official Solicitor) |
Respondent |
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Bridget Dolan QC (instructed by the Official Solicitor) for Z
Hearing dates: 27 March 2020
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Crown Copyright ©
Mrs Justice Knowles:
Introduction
a) a capacity assessment of Z by Dr A, consultant psychiatrist;b) two witness statements dated 18 March 2020 and 23 March 2020 from Dr B, consultant obstetrician and subspecialist in fetal and maternal medicine;
c) a witness statement dated 23 March 2020 from Dr A;
d) a witness statement dated 24 March 2020 from KB, a solicitor in the Official Solicitor's office;
e) a witness statement dated 26 March 2020 from Z's IMCA, Ms C;
f) the report of Dr Camden-Smith, consultant psychiatrist instructed by the Official Solicitor, dated 26 March 2020;
g) and the report of Professor Walker, Professor of Obstetrics and Gynaecology, dated 26 March 2020.
Z's Participation in the Hearing
Capacity to Litigate
Capacity: Legal Principles
a) A person must be assumed to have capacity unless it is established that she lacks capacity: s.1(2) MCA. The burden is on the party asserting a lack of capacity (here, the Trust) to establish it on the balance of probabilities: CC v KK & STC and Others [2012] EWHC 2136 COP, per Baker J, at para. 18;b) The determination of capacity under Part 1 of the MCA is always "decision specific";
c) Any lack of capacity must result from an impairment of, or a disturbance in, the functioning of the person's mind or brain: s.2(1);
d) It does not matter whether the impairment or disturbance in the functioning of the mind or brain is permanent or temporary;
e) A person is to be treated as unable to make the decision on the matter in issue for herself if she is unable to (i) understand the information relevant to the decision; (ii) retain that information; (iii) use or weigh that information as part of the process of making the decision; or (iv) communicate that decision: s.3(1);
f) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent her from being regarded as able to make the decision: s.3(3);
g) The "information relevant to the decision" includes information about the reasonably foreseeable consequences of deciding one way or another; s.3(4)(a);
h) The Court should guard against overcomplicating what is the "information relevant to the decision" for the purposes of section 3. As Baker J said in para. 69 of CC v KK & STCC (see above), it is not necessary for a person to demonstrate a capacity to understand and weigh up every detail of the respective options, but merely the salient factors. However, the more serious the decision, the greater the capacity required (In re T (Adult: Refusal of Treatment) [1993] Fam 95 at 113B;
i) The Court of Appeal in IM v LM, AB & Liverpool City Council [2014] EWCA Civ 37 echoed this theme when stating that, if there were a temptation to expand information relevant to the decision in issue further than that regarded as relevant to inform the decision of a capacitous person, that would be likely to lead to both paternalism and a derogation from personal autonomy;
j) A person is not to be treated as unable to make a decision merely because she makes an unwise decision: s.1(4);
k) A lack of capacity cannot be established merely by reference to an aspect of her behaviour which might lead others to make unjustified assumptions about her capacity: s.2(3).
Capacity to make decisions about contraceptive treatment
"… the test for capacity should be so applied as to ascertain the woman's ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment ("the proximate medical issues" per Mr O'Brien), including; 91) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse); (2) the types available and how each is used; (3) the advantages and disadvantages of each type; (4) the possible side effects of each and how they can be dealt with; (5) how easily each type can be changed; and (6) the generally accepted effectiveness of each."
Capacity: Discussion
a) worsening nutritional deficiencies;b) gestational diabetes bringing with it risks of gestational hypertension, stillbirth and cardiovascular and/or renal disease;
c) the risks associated with repeat pregnancy and caesarean sections including (i) the increased risk of stillbirth and its psychological impact, (ii) abnormal placentation consisting of placenta praevia and abnormally invasive placentation, (iii) an increased risk of haemorrhage, (iv) abnormal or pelvic adhesions, (v) increased risk of wound, uterine or intra-pelvic infection, and (vi) increased risk of venous thromboembolism.
"In my opinion, [Z] has an inability to understand all the relevant information, specifically the risks to her health if she were to get pregnant again. [Z] did not appear to understand what an Intrauterine System was or how it would be inserted, despite this having been explained to her at great length and with assisting diagrams by [Dr A]. I am satisfied that clinicians involved in [Z's] care have exerted considerable time and effort in supporting [Z[ to understand this information, and am confident that nothing further could be done within the timescale available to enhance [Z's] understanding".
Best Interests
"3.2.1 …the increasing risk to [Z's] health in subsequent pregnancies, with the risk of uterine rupture and placenta percreta, which could lead to haemorrhage, hysterectomy and her death, means that she should be advised not to get pregnant for at least two years and preferably never again.3.2.2 Contraception needs to be as efficient as possible and not reliant on [Z] as she has not shown compliance before.
3.2.3 An IUS would be the best balance, it is efficient, has minimal side effects and is reversible if the situation changes."
Conclusion