Anticipated loss of capacity – Guy’s and st Thomas’s NHS Foundation Trust

In rare cases, where there is a real risk that the patient will lose capacity during the course of treatment, and will refuse necessary treatment at a point where there is no time to make an application to the court for a decision on their best interests, the court may be willing to grant a declaration contingent upon the patient’s loss of capacity, declaring that it will be in the patient’s best interests to have the treatment (usually, in accordance with a detailed care plan) at that future point, if it materialises. The position has been made clear in the leading case of Guy’s and St Thomas’s NHS Foundation Trust v R, in which Hayden J had to grapple with anticipated loss of capacity during labour, and in which he granted the application of two NHS Trusts for contingent declarations concerning obstetric care.

The patient ‘R’ was a detained psychiatric patient, suffering from bipolar affective disorder and psychotic episodes. Although capacitous at the time the application was made, she was considered to be at substantial risk of losing capacity during labour due to a deterioration in her mental health (having ceased taking anti-psychotic medication). Whilst capacitous, she informed clinicians that a caesarean section would be the ‘last thing she would want’. An application was made seeking authorisation of medical intervention, should R lose capacity, which would be contrary to her expressed capacitous wishes.

Hayden J accepted that the wording of s 15 of the MCA permits the court to make a declaration as to the lawfulness of any proposed treatment for P which is contingent on P losing capacity, even though at the point at which the declaration is made, P has capacity. At the point when the declaration is made, it is of no effect: it comes into effect if, and only if, P subsequently loses capacity to make the decision.

Hayden J also accepted that the wording of s 16 of the MCA does not permit the court to make a similar decision contingent on a loss of capacity, since the entirety of s 16 is predicated upon P having already lost capacity. The effect of this is that any order authorising the deprivation of P’s liberty, which is expressed to come into effect only if P loses capacity in the future, must be made under the court’s inherent jurisdiction.

Hayden J considered that such applications should be exceptional, rather than routine. Given the implications of making an application at a time when the patient has capacity to make the decision, we unhesitatingly agree.

We suggest that such applications should only be made where there is a real risk that P will lose capacity in identifiable future circumstances, coupled with a real risk that they will then refuse treatment which is in their best interests at a point when there is insufficient time to bring the matter before the court. Clear clinical evidence should be provided to the court capable of providing a foundation upon which the court can find both risks are established. Evidence should be provided as to the discussions which have taken place with P, and the proposed care plan should as far as possible follow P’s capacitous choices; where it is proposed to depart from those capacitous choices, very clear reasons should be provided as to why the court should overrule them.

Provision should be made in the order for the assessment of P’s capacity before any action is taken in reliance upon the declaration or order, to ensure that it is only implemented when it is effective. The declarations and orders made should be the least restrictive response to the circumstances, and clearly limited to the period in which capacity is lost.