'Incumbent' on NHS Trusts to make applications 'significantly earlier' says judge

In a recent decision of the Court of Protection, Mrs Justice Lieven has expressed the court’s frustration with last minute applications  - in this case for a caesarean section – and stressed the need for them to be made significantly earlier in the process than seems to be happening currently.

Whilst being clear that she accepts all parties are trying to act in good faith and in the best interests of the patient, she points out that late applications mean that the Official Solicitor simply cannot take proper instructions, represent the patient or take a sensible view of the case so that she is able to assist the court.

These cases are often very difficult, and in this instance, the patient was assessed as having capacity on the Monday, and lacking it on the Wednesday. The application was made on Thursday, with the operation planned for the Friday and initially, the application appeared to have been made as promptly as was reasonable. However, evidence in the bundle indicated that the need for an application could have been appreciated the previous week and the court was clear that the application should therefore have been made “significantly earlier” than was the case.

There were also concerns here that the two Trusts involved in treating the patient (one providing the obstetric care and one providing her mental health care) were not sharing information in a helpful and appropriate manner. Additionally, the obstetrician in charge of her care was unaware that there was a child protection plan in place for the baby to be removed at birth. There was no information available about the patient’s partner or family and no medical notes available to the court.

In this case, the order permitting the caesarean section was made, but it was very clear that the judge was unhappy with the lateness of the application.

We understand that cases such as these are difficult and complex, and that the balance to be struck between making an application that may turn out not to be needed, and applying too late is a delicate one. Clinicians have rarely been through the process of making an application before and it may well not be something that they consider until close to the delivery date.

Our experienced team can help and advise – identifying those cases where an application is likely to be needed and working with providers to cover the ground work and providing reassurance and support as needed. We often advise on information sharing and multi-disciplinary planning between organisations.

If in doubt, please do give one of our friendly team a call to talk through the issues.

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