The timing of applications and delay
From Re MB onwards the guidance and dicta from the courts have repeatedly made clear that applications should be brought to court at the earliest opportunity. Yet applications in obstetric cases are still often made at the eleventh hour.
In GSTT and SLAM v R the pregnant woman, who was a detained psychiatric patient, was at 39 weeks and 6 days gestation and ‘could have entered labour at any moment’ when the urgent application to the court was made. The Vice President, Hayden J, ‘deprecated the delay in bringing the application’ noting that ‘self-evidently the court was left in the entirely invidious position of having to determine applications which have an obviously draconian complexion to them, in circumstances which were far from ideal.’
The exasperation judges experience when faced with tardy applications was succinctly expressed by Lieven J in University Hospitals Dorset NHS Foundation Trust and Dorset Healthcare University NHS Foundation Trust v Miss K. On hearing a very urgent application to authorise a caesarean section, she commented that:
‘2 … there was a very strong risk, at least from last week, that Miss K would lose capacity to give consent for the treatment proposed. In those circumstances, it was incumbent upon the Trusts to have made this application significantly earlier than today.
‘3. I appreciate that these cases are very difficult, and that everyone is trying to act in good faith and in the patient’s best interests. I also appreciate that doctors and Trusts are unwilling to make these applications unless they really need to. However, as has been said in so many cases before it feels like a waste of breath, the burden of making an application at the eleventh hour ultimately falls upon the Court and the Official Solicitor.
‘4. On the facts of this case, the Official Solicitor was instructed today, making her task virtually impossible. No medical notes have been produced, which, for reasons I will explain later, puts me and the Official Solicitor in a difficult position. It was impossible for the Official Solicitor to take any sensible view of the case… It is wholly unacceptable that NHS Trusts routinely put the Official Solicitor in such an impossible situation where she cannot do the job she is instructed to do, and where her role effectively becomes a tick box exercise. This is a waste of resources and wholly unhelpful to P’s best interests. It is also unfair on the court, … who have to deal with applications at extreme urgency.
‘5. It is not good enough for NHS Trusts to routinely say they were acting in good faith when in truth that simply becomes an exercise in burden-shifting.’
Late applications place the court in a very difficult position. It will mean that there is little opportunity for the patient even to be told, let alone consulted, about the application in advance, and it can seriously undermine the ability of the Official Solicitor to take any steps to investigate, explore or challenge the medical evidence, and to consult with the pregnant woman or any members of her family to obtain her views. As a result, the court may be left with little or no evidence about the woman’s past wishes, feelings, beliefs and values from those who knew her best on the key questions of her views on childbirth, and on whether her best interests would be prospectively achieved through the safe delivery of a healthy baby.
In an appropriate case, costs orders may be made against applicant Trusts which have failed to make an application in a timely way.