Timely Intervention in the Court of Protection: Lessons from Cardiff and Vale University Health Board v NN [2024] EWCOP 61

Cardiff and Vale University Health Board v NN [2024] EWCOP 61

Avaia Williams, a first six pupil under the supervision of Sara Anning and Rebecca Musgrove, explores the judgment of the Court of Protection in Cardiff and Vale University Health Board v NN [2024] EWCOP 61.

Full Judgment can be found here.

The recent Court of Protection decision in Cardiff and Vale University Health Board v NN has reiterated the commentary on the timing of applications in cases involving complex medical treatment decisions. The case involved NN, a vulnerable adult with a history of substance abuse and schizophrenia, detained under the Mental Health Act 1983, who sought a termination of her pregnancy. This judgment emphasising the importance of timely applications when the need for court intervention becomes foreseeable and highlights the issues that can occur when timeliness is put to one side.

Background and Facts

In August 2024, NN was approximately 18 weeks pregnant and had consistently, though at times hesitantly, expressed her desire for a termination – such hesitancy may be entirely apparent in most individuals who are thinking about termination, it is a decision made not without such grappling. The Cardiff and Vale University Health Board sought a declaration that it would be lawful to proceed with the termination if NN chose to go ahead, acknowledging that restraint or sedation might be necessary should NN change her mind mid-procedure. This application was complicated by the health board’s concerns that, at an irreversible stage, NN might refuse further treatment or intervention, potentially risking her health if not managed appropriately (an obviously envisaged situation may include catastrophic bleeding).

NN’s case reached the Court of Protection under urgent circumstances, as by the time of the hearing on 12 September 2024, she was already in her 21st week of pregnancy, with only days remaining before the termination would no longer be possible under the Abortion Act 1967’s time limits. The urgency was only compounded by delays in the application process, which the Court was specifically critical of.

Judgment and Findings

Victoria Butler-Cole KC, sitting as a Deputy High Court Judge, confirmed that NN lacked capacity to make decisions regarding the termination of her pregnancy. The court thus declared the health board’s proposed treatment plan lawful and authorised, but only insofar as it aligned with NN’s expressed wishes. The court underscored that the health board was “not inviting the court to make a best interests decision” regarding the termination itself but sought only to ensure that the necessary procedural support and monitoring could be provided should NN proceed with her choice. The judge stated clearly:

“The treatment plan made clear that it was NN’s choice whether to have a termination or not, and that no best interests decision would be made for her, notwithstanding her lack of capacity.”

However, the court was critical of the health board’s delay in bringing proceedings. The delay resulted in NN undergoing a late-stage termination which led to further distress, not only for her but also for her family and medical staff involved. As the judgment noted:

“Four weeks was simply too long. In my judgment, an application should have been prioritised and made at the very latest by 26 July 2024. If it had been, a decision would likely have been made by the court by mid-August, rather than mid-September. While that may not have made any difference to the type of termination NN had, it would have saved her a month of waiting and wondering why her expressed wishes were not being acted on as her pregnancy progressed.”

Ultimately, NN’s frustration with the delay was expressed through her repeated requests to the staff to know “why a date for the procedure had not been set.” The court acknowledged the psychological and physical burden this placed on NN, as well as the prolonged anxiety for her family. The judge, therefore, issued an adverse costs order, requiring the health board to pay “100% of the costs of the Official Solicitor in this application.”

The court also used this case as a reminder for all practitioners of the importance of timely intervention, quoting the Official Solicitor’s guidance that applications related to complex medical decisions “should be regarded as a medical treatment issue of the utmost urgency.” The judgment emphasises:

“The negative impact goes wider than just NN. Her mother told the Official Solicitor’s caseworker after the procedure that this has been the worst experience of her life and that it was ‘absolutely barbaric.’ She was clearly traumatised by watching her daughter having to continue her pregnancy well into the second trimester despite having requested a termination, and then supporting her through a late medical termination which resulted in the baby being born alive.”

In commenting on the broader implications, the judge added that “serious thought should be given to how likely it is that those measures will be needed,” referring to the anticipation of deprivation of liberty during medical procedures.

This judgment reiterates that timely applications can help avoid escalated complications and distress, especially for those already faced with significant struggles (NN was during all of this detained in a psychiatric hospital). As the judge noted, “perfect may well be the enemy of the good” in urgent treatment cases, urging practitioners to prioritise the patient’s immediate welfare over perfectionism in evidence-gathering.

Commentary and Implications

The case emphasises a recurrent theme in Court of Protection judgments: the need for prompt application when it appears that a case may require court involvement. The judge reaffirmed that court intervention is not mandatory where there is a professional consensus in line with MCA provisions and where the agreed treatment is not to be forced upon P, but that “serious thought should be given” to whether a DoL order may realistically be needed and if so, to apply without delay.

The message here aligns with the judicial consensus and guidance, that a timely application not only ensures that patients are spared prolonged distress but also minimises the complexity and risk associated with more advanced procedures. The judge noted that “unnecessary” applications, if issued early enough, may be withdrawn with minimal impact; the harm lies in applications made too late to avoid potentially preventable distress. Put simply, it is better to make an unnecessary application than to wrongfully fail to apply!

The Health Board’s delay highlighted several procedural breakdowns, including a lack of legal representation in key meetings that prolonged decision-making, and staff absences. The court remarked that these factors do not excuse a delay in proceedings where “every day that passed meant the options for NN narrowed.” This case reinforces that, where time is critical, legal teams should work in tandem with medical professionals to assess the urgency of any likely court application, even if all evidence is not yet gathered. It is worth noting, however, that these difficulties are compounded and only likely to increase with cuts to local authorities and health boards and with social workers and in house legal staff haemorrhaging across the board – whilst it is absolutely right for the Court of Protection to find that these delays and staffing concerns do not excuse the delay to P, they do go some way to explaining how these cases continue to return to the Court.

Section 4B of the Mental Capacity Act 2005 offers specific guidelines regarding the deprivation of liberty for life-sustaining treatment or “vital acts” necessary to prevent serious deterioration. Under section 4B, steps that might restrict a patient’s liberty can be authorised if four key conditions are met: the purpose of treatment, the necessity of the steps, a reasonable belief that the patient lacks capacity, and either an ongoing court decision or an emergency situation.

In this judgment, Victoria Butler-Cole KC discussed the practical application of section 4B in circumstances like NN’s, where the risk of future deprivation of liberty might be raised without certainty that such restrictive measures would be required. The judge emphasised that, where a patient is expressing a consistent wish to proceed with a procedure, courts should consider “how likely it is that those measures will be needed.” Butler-Cole KC observed that this may be particularly relevant where the patient does not display any specific indicators of resisting treatment, such as persecutory delusions or ingrained fears, as in NN’s case.

This approach reflects that taken in Shrewsbury and Telford Hospital NHS Trust v T & Anor [2023] EWCOP 20, where Lieven J noted the risk of medical decisions being unnecessarily “turned into legal ones.” Lieven J held that clinicians could, in emergency situations, rely on the doctrine of necessity rather than anticipatory declarations. This doctrine, as well as section 4B’s authorisation of emergency deprivations of liberty, underscores that judicial intervention should not be the default in urgent medical matters. The court in NN’s case echoed this view, stressing that clinicians and legal professionals must assess whether a Court of Protection application is warranted based on a realistic rather than theoretical likelihood of non-compliance.

Conclusion

Recurring systemic challenges, notably the strains on local authorities, health boards, and hospitals, where teams are stretched and resources are limited, are once again a feature being hinted at in judgments. The issues around delayed applications often stem not only from individual oversights but from deeper, structural limitations affecting public bodies. With significant funding cuts across health and social care services, these institutions face ongoing staff shortages and difficulty in retaining both social workers and in-house legal professionals. This lack of manpower frequently impedes swift decision-making and complicates already nuanced legal processes, increasing the likelihood of delays even where urgent intervention is required.

For clinicians and staff in mental health facilities, a further issue is the challenge of managing cases under both the MHA and the MCA, especially with detained patients. While legal principles for those detained under section often support treatment decisions without the need for court intervention, staff may be less familiar with the MCA’s application and its thresholds for requiring judicial oversight. Cases involving detained patients, where complex or invasive treatments are concerned, can often blur the line.

Public health staff and professionals are understandably cautious, concerned about potential legal repercussions. This hesitation, coupled with pressures from under-resourced departments, frequently results in delayed applications where court involvement may either be too late to prevent patient distress, or potentially unnecessary altogether. The judgment in NN’s case is a reminder that while the Court of Protection offers critical oversight, its resources should be invoked judiciously, with applications being made at the earliest indication of need and only when necessary.

Of course, on any interpretation, there is a risk of either overburdening the system with unnecessary applications, or worse so, professionals deciding that cases genuinely requiring an application as not requiring this. Still in its infancy as a jurisdiction, the Court of Protection has brought to light the need for clinicians to be lawyers and for lawyers to be clinicians, or better, that in such cases, open and multi-disciplinary approaches are taken as a standard course.