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GSTT and SLAM v R [2019] EWCOP 3

3rd September 2019

The perplexing issue of whether a judge can make an anticipatory declaration in the CoP has come under scrutiny in this recent case.  The matter concerns a pregnant woman who is currently a detained psychiatric patient and believed to have capacity to make decisions about childbirth. However her fragile mental state means there is a real risk she will lose capacity during childbirth and her physical condition means she may well need to deliver by Caesarean.   Hayden J hearing the case as an emergency application questioned the jurisdiction under the MCA over someone who currently has capacity and so, although the judge acceded to the Trusts’ application, he made declarations in the High Court’s inherent jurisdiction in the alternative. The legal argument on the jurisdictional issue is now to be heard in the new term.

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Bridget Dolan QC and Sophia Roper of Serjeants’ Inn are instructed for the NHS Trusts.

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