An Emerging Pattern? A Further Case of Anticipated Capacity Loss in Pregnancy: North Middlesex University Hospital NHS Trust V SR [2021] EWCOP 58.

Abstract

In 2021, the Court of Protection made a third anticipatory declaration that it was lawful for a capacitous pregnant woman to be subject to possible forcible treatment contingent on her losing capacity before or during birth. North Middlesex University Hospital v SR raises three interesting questions for discussion which this commentary will explore. First, it is submitted that there is a growing, yet alarming, trend in the use of anticipatory or contingent declarations to manage such challenging cases of future loss of, or fluctuating, capacity in pregnant women. This trend now seems to have been widened by SR and could potentially capture any pregnant woman, rather than those in narrower, exceptional circumstances. Secondly, this commentary discusses the judge's justification of basing the issuing of anticipatory or contingent declarations on a 'real risk' P will lose capacity in the future, highlighting the potential problems with framing such controversial powers on 'risk'. Finally, it provides an exploration of the alternative option of utilising advance care plans to better deal with these types of matters, in the name of giving back the power to pregnant women to decide on what should happen to them in labour in the event that they do lose capacity before or during delivery.