Fluctuating mental capacity: the need to plan ahead for a range of options

Health practitioners will undoubtedly welcome clarification on how to manage medical treatment cases involving patients who suffer from fluctuating capacity. The difficult issue here is that these cases are by definition urgent and therefore require advance, contingency planning.

The recent decision of the Court of Protection in United Lincolnshire Hospitals NHS Trust v CD is a helpful lesson in how to go about managing these types of medical treatment cases. This is a complex case about the management of the delivery of CD’s baby. CD had been diagnosed with paranoid schizophrenia and emotionally unstable personality disorder and was detained under the Mental Health Act 1983.

The “difficult” and “novel issue” in this case was that it was “common ground” among the treating clinicians that CD did not lack capacity to make decisions in respect of the delivery of her baby at the time of the hearing. However, based on her history, her clinicians were of the view that she may become incapacitous “at a critical moment in her labour”. CD also suffered from polyhydramnios. The shared clinical view was that in the event of CD’s membranes rupturing or her waters breaking, there would be insufficient time to make a renewed application to the court. In the circumstances, the NHS trust sought an anticipatory and contingent declaration, allowing for certain interventions, in the event that CD lacked the required decision-making capacity.  

The CoP looked at the five orders (identified by the Official Solicitor) which could be made in this case.

The options included:

“i)         an order bringing these proceedings to an end on the basis that CD has capacity to make decisions about the birth;

ii)          an interim order adjourning the proceedings for a short period to enable the applicant to come back for an urgent order should CD's capacity deteriorate;

iii)         an interim order which would enable the applicant to implement the care plan pursuant to section 4B of the MCA;

iv)         a final order declaring, pursuant to section 15 (1)(c) that, in the event CD is assessed at some later date as lacking the capacity to make decisions about the birth, the implementation of the care plan would be lawful;

v)         an order pursuant to the inherent jurisdiction.”

The CoP ruled that in the exceptional circumstances the court had the power to make an anticipatory declaration of lawfulness, contingent on CD losing capacity, pursuant to section 15 (1)(c) of the Mental Capacity Act 2005 and did so here.


It is somewhat surprising that the issues raised in this case have not previously been reported on; although the court was referred to an unreported decision in 2009 in which Mr Justice McFarlane (as he then was) made contingent declarations as to the circumstances in which P would lack capacity and her best interests in that event. That said, practitioners up and down the country will be pleased to have a reported decision where the court has considered what to do in cases where patients currently have capacity but may subsequently lack capacity to make decisions.

These are difficult cases – do get in touch if you would like support with your medical treatment cases.

Our content explained

Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.


Mills & Reeve Sites navigation
A tabbed collection of Mills & Reeve sites.
My Mills & Reeve navigation
Subscribe to, or manage your My Mills & Reeve account.
My M&R


Register for My M&R to stay up-to-date with legal news and events, create brochures and bookmark pages.

Existing clients

Log in to your client extranet for free matter information, know-how and documents.


Mills & Reeve system for employees.