In University Hospitals Dorset NHS Foundation Trust & Anor v Miss K [2021] EWCOP 40 Mrs Justice Lieven observed that applications, made very late in the day, by hospital trusts, cause considerable disruption. (The blunt reality here, however, is that the court has to protest in strong terms.  Cases such as this have to be heard promptly once issued, there is no question of matters being adjourned or parties penalised. It is one of those situations when strongly worded missives are virtually the only tool available to the courts).


The NHS Trust was seeking a declaration that it was a patient’s best interests to undergo an elective caesarean section.  At the outset of the judgment the judge commented upon the late timing and the problems that posed.


    1. Before turning to the facts of the case I will say something about the timing of the application. The application was made this morning, Thursday 10 June 2021. It was placed into a very busy list for Mr Justice Hayden and it was impossible for him to hear it. It was therefore transferred to me at lunchtime, again into a busy list. Whilst the documents in the bundle suggested initially that the need for the application had only arisen on Tuesday or Wednesday of this week, and therefore it initially appeared to me to have been made in good time, when I got to the end of the bundle I discovered a witness statement from Dr B. It is entirely clear from his written and oral evidence that 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.
    1. 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.
    1. 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. Heroically she was able to send her agent, Mr Spooner, to the hospital to visit Miss K this afternoon, with further attempts being made to talk to Miss K. I received a note from the agent at something like 5.30pm when the evidence had finished and Miss Gollop’s closing submissions had already started. 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, that being to Mr Justice Hayden and me today, who have to deal with applications at extreme urgency.
  1. 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. Here, there appears to have been a failure between the two Trusts to work together and exchange information in a helpful and appropriate manner. I will return to that in a moment. I should add on the delay point that Miss Sutton, who appears on behalf of the NHS Trusts, has appropriately apologised profusely on behalf of the Trusts for what has happened. Miss Sutton, who as always has been extremely helpful to this court has, expeditiously, produced a very helpful position statement and a draft of the final order sought, however there comes a point where apologies are not enough.