Deprivation of liberty in midwifery—taking a case to court

Last month's legal column discussed how the acid test for determining a deprivation of liberty applied to the care of women who lack decision-making capacity (Griffith, 2014). As a general rule, where a deprivation of liberty occurs in a hospital maternity unit midwives can use the deprivation of liberty safeguards to authorise it (Ministry of Justice, 2008). There will, however, be occasions where the matter will have to be decided by the courts through a welfare order (NHS Trust and others v FG [2014]).

The Mental Capacity Act (2005), section 16 allows a court to settle matters relating to the welfare, or finances, of a person who lacks capacity. The order issued by the court, called a welfare order, can include a direction authorising a deprivation of liberty in a person's best interests.

In the case of NHS Trust and others v FG [2014], the official solicitor asked the Court of Protection to issue guidance to local authorities and health bodies and professionals setting out when and how to bring a case concerning the maternity care of a woman who lacks capacity to court.