Case No: 

Neutral Citation Number: [2014] EWHC 166 (Fam)
IN THE HIGH COURT OF JUSTICE

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28th January 2014 

Before :

Mr Justice Moor
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Between :

	The Great Western Hospitals NHS Foundation Trust	Applicant	
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	AA (a protected party)	Respondent	

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Mr Michael Horne for the Applicant
The Respondent was not represented

Hearing date: 27th January 2014

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JUDGMENT
MR JUSTICE MOOR:-

1.	An application was made to me yesterday evening, 27th January 2014 at approximately 9.30 pm by the Applicant, the Great Western Hospitals NHS Foundation Trust.  
 
2.	I heard submissions from Mr Michael Horne for the Applicant and took oral evidence from Mr David Griffiths, a Consultant Obstetrician and Gynaecologist employed by the Applicant.

3.	The Respondent was not represented.  The Official Solicitor had been contacted but had said he was not able to assist given the lack of notice.  

4.	I made an interim order pending a full hearing before Mr Justice Hayden in London on 28th January 2014.
  
5.	The Respondent, AA was born in 1988 and is therefore nearly 26 years old.  She has bi-polar affective disorder, which was diagnosed at the age of 18.  She has been prescribed various medicines but has, on occasions, discontinued her medication when she has perceived herself to be well.  
 
6.	She is 38 weeks pregnant.   Her partner, BB is the father.  They are both delighted that she is pregnant and very much looking forward to the birth of their child.  

7.	AA’s membranes ruptured at approximately 0830 on 26th January 2014 but she did not go into labour.  She was admitted to the Labour Suite at the Great Western Hospital in Swindon.  BB and her parents are present with her.

8.	Unfortunately, AA has not been taking her medication.  In fairness to her, the fact of her pregnancy may have some bearing on this.  On admission to the hospital, it was noted that she had displayed extreme agitation for the previous 60 hours.  She was confused, vague and disorientated.  

9.	A consultant psychiatrist, Dr N Best, reviewed her condition.  He diagnosed a hippomanic bout developing into puerperal psychosis.  This is an extremely serious condition which may continue for 4-6 weeks.  Due to her state, she was sectioned under s5(2) of the Mental Health Act.  She was subsequently detained pursuant to section 2 of the Act on 27th January 2014. Treatment has been started but it will take time to work.  

10.	Dr Best is satisfied that she lacks capacity to litigate and to take decisions as to her medical treatment.  I too was so satisfied on the basis of the evidence before me.  As AA was sectioned pursuant to section 2 of the Mental Health Act, the Mental Capacity Act was not applicable.  I was satisfied that it was, in the circumstances, appropriate for me to invoke the inherent jurisdiction of the High Court.

11.	Mr Griffiths told me that he was very concerned as to the health of AA and her baby.  There is a serious and significant increase in the risk of infection as a result of AA’s membranes having broken.  She may develop sepsis and become severely unwell.  In the normal situation, he would have induced labour by now.

12.	AA has not been prepared to cooperate with the proposed induction of her baby.  She is fixated on the baby being born on her birthday in a few days time.  I was told that labour cannot be induced without her co-operation.  She would need an epidural to cope with the pain.  Ongoing physical restraint would be required which was not feasible.   It was considered that her distress and agitation would increase and that it would not be safe to proceed in this way over what might be a long process of labour.  In any event, this restraint would undoubtedly involve a deprivation of liberty which would need court approval.

13.	The only other alternative is a caesarean section.  This would require a general anaesthetic.  Again, it is clear that this involves a significant deprivation of liberty and requires authorisation.  There may well have to be further restraint following the operation.  

14.	The doctor was clear, however, when I spoke to him, that one or other course of action was necessary urgently to avoid the risk of infection which would have very serious consequences.  Without co-operation, it would have to be a caesarean section.

15.	Counsel quite properly drew my attention to the risks involved with a general anaesthetic and the fact that the operation would leave a scar.  He told me, and I accepted, that the risks of the general anaesthetic were small.  In fact, they were no greater than for the general healthy adult population.  It was clear to me that, given the likelihood of serious ill health if the operation did not proceed, the small risks of the general anaesthetic and the fact of a scar were very significantly outweighed by the advantages to both Mother and unborn baby of proceeding in this way.

16.	I was further told that both AA’s parents supported this course of action.  I was told that BB initially had reservations, particularly due to the scar, but that he had come round to the view that it was essential and therefore added his support.  I was not, of course, aware of what would be said on behalf of AA if she had been represented. 

17.	I was not prepared to make a final order in such a serious matter, late at night on a without notice basis without AA being represented.  I therefore adjourned the matter to be heard by Hayden J in the Applications Court in the Royal Courts of Justice at 10.30 am on 28th January 2014.  I directed that the Official Solicitor be informed.

18.	Nevertheless, I made an interim order authorising the treatment if, pending the next hearing, AA either went into labour but, for whatever reason, required a caesarean section or she began to show signs of infection.  I was satisfied that, in such circumstances, the advantages of the treatment significantly outweighed the disadvantages and justified the Applicant in proceeding notwithstanding the deprivation of liberty.