University Hospitals of Derby and Burton NHS Foundation Trust & Anor v HH (by her litigation friend the Official Solicitor) [2026] EWCOP 35 (T3)
Judge: Mrs Justice Theis
Date: 4 August 2026
Background
HH was a 30-year-old woman, 37 weeks pregnant with her second child, who had a diagnosis of paranoid schizophrenia and was experiencing an acute psychotic episode. She had been detained under s.3 Mental Health Act 1983 since 5 June 2026. Her presentation was characterised by paranoid delusions, hostility, agitation, and fluctuating engagement. She was managed on enhanced 3:1 observations and required use of physical and chemical restraint. HH’s estimated due date was 25 August.
The acute Trust responsible for HH’s obstetric care and the mental health Trust responsible for her psychiatric treatment jointly applied to the Court of Protection. They sought declarations that HH lacked capacity to make decisions regarding her obstetric care and that it would be lawful and in her best interests to implement a detailed obstetric care plan.
The care plan prioritised HH’s consistently expressed wish for a vaginal birth but provided that a caesarean section could be undertaken if labour became unsafe for HH or her baby. It also addressed the possible use of restraint and sedation should an emergency arise.
Decision
Mrs Justice Theis found that HH lacked capacity to make decisions regarding her obstetric care. Although there had been isolated periods during which HH engaged with clinicians, the court accepted evidence that, due to her psychosis, she was unable to consistently understand, retain, use and weigh information relevant to decisions concerning labour and delivery. The evidence demonstrated that HH had lacked capacity since at least 12 May 2026, and the judge concluded that she was unlikely to regain capacity before the planned delivery date on 11 August.
The court approved the proposed care plan as being in HH’s best interests. Particular emphasis was placed on the fact that the plan sought to respect HH’s wish for a vaginal birth wherever clinically safe, whilst providing a framework for rapid intervention if an obstetric emergency arose.
The court granted anticipatory and contingent declarations. Mrs Justice Theis reiterated the established principle that the Court of Protection can make anticipatory declarations where capacity is likely to fluctuate and urgent treatment decisions may be required in the future. Such declarations do not override autonomy because capacity must continue to be assessed and any capacitous decision respected.
Comment
This case highlights the importance of comprehensive multidisciplinary planning. The judge repeatedly endorsed the detailed care plan, which balanced clinical risk management with HH’s wishes and feelings, incorporated de-escalation strategies and limited the use of restraint to situations where it was necessary and proportionate.
Of particular significance is the court’s endorsement of anticipatory declarations in cases involving fluctuating capacity and foreseeable medical emergencies. Early applications to the Court of Protection may provide valuable legal clarity for clinicians whilst ensuring that patient autonomy remains protected through ongoing capacity assessments.
Finally, where treatment plans may involve restraint, sedation or other significant restrictions on liberty, trusts should consider deprivation of liberty issues at an early stage and ensure that any restrictive interventions are demonstrably necessary, proportionate and the least restrictive option available. Applying the multi-factorial approach set down by the Supreme Court in Re AGNI there was no dispute that the proposed restrictions amounted to a deprivation of liberty in circumstances where the care plan authorised up to 6:1 enhanced observations, provided for both physical and chemical restraint and where HH would likely be objecting to those arrangements.
The full judgment can be click here.
