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Tuesday, 3 December 2013

More questions than answers - on the 'forced caesarean' case

[Update 04/12/2013: The judgment in the Court of Protection hearing of this case has now been published, as has one of the judgments in the public law Children Act proceedings.  On the Court of Protection judgment, I recommend reading the commentary by Nell MunroSuesspicious Minds and Elizabeth Prochaska's piece on the Birthrights blog]

On Saturday, the Telegraph ran a Telegraph column by Christopher Booker , with the headline ‘Operate on this mother so that we can take her baby’. The column alleged that the woman had been visiting from Italy for work reasons when she was detained under the Mental Health Act 1983 in connection with bipolar disorder. One morning she was given no breakfast, then (according to Booker) ‘She was strapped down and forcibly sedated, and when she woke up hours later, found she was in a different hospital and that her baby had been removed by caesarean section while she was unconscious and taken into care by social workers’. An application to place her child for adoption is now before the courts, some fifteen months on. According to Booker, ‘social workers’ had been given permission to arrange this by the High Court.

By the end of Monday the Mail, the Independent, even the Guardian had regurgitated versions of this story, quoting reaction from various public figures and commentators. Shami Chakrabarti of Liberty described the case as ‘the stuff of nightmares’, an Italian judge has described it as resembling ‘a horror film’. By the end of yesterday the Judicial Office were tweeting that ‘Proceedings not yet concluded; President of Family Division has ordered the matter be transferred to High Court. President of Family Division has order any further applications in respect of the child are to be heard by him.’ There are now several hundred news stories about the case, and the mother concerned has sent a ‘message of thanks’ to the British people for their support.

If reports are correct – that the mother really was forcibly sedated, the baby delivered by caesarean with the express purpose of removing the child from her care and giving it up for adoption, and the mother and her own family was entirely kept in the dark about this plan – this does indeed sound like the stuff of nightmares.

But for those of us familiar with the work of the Court of Protection there were a number of alleged facts about this story which simply didn’t stack up. One common theme in the reporting of this story is the idea that the caesarean was for the protection of the child, not the mother, and that it was initiated by the local authority – Essex County Council – as part of their child protection role. This didn’t stack up to me, and – in fact – turns out not to be true. Essex Council have released a timeline of events which reveals that it was the Health Trust who applied to the Court of Protection for the caesarean, and their application for an interim care order (relating to the child) came a day later, in August 2012. This made sense to me, as although it is not unprecedented for a local authority to apply to the Court of Protection regarding a healthcare intervention, it is unusual – and in any case the Court would have to be satisfied that doctors felt the intervention was clinically necessary and were willing to deliver it.

Another oddity was the claim that the caesarean was carried out for child protection purposes. Lisa Hallgarten writes in the Guardian that ‘There is no suggestion that the caesarean was necessary to protect her health or life, only that it was requested by social services to remove the baby for child protection purposes.’ Meanwhile, Sophie Khan, a respected solicitor-advocate, writes in the Telegraph:
Based on the facts of the case the Court believed there was a risk to the unborn child and had to take steps to protect the child from harm. Such draconian steps are only taken by the Court if there is no other alternative, especially when it comes to children. As a society we must act in the best interest of the child and the Court of Protection, although many of you may not agree with its closed proceedings, is there to ensure that this interest is protected.
Unless there were temporary drastic changes to the Mental Capacity Act 2005 (MCA) and the Court of Protection Rules 2007 in August 2012, this simply cannot be true. Let me explain. The Court of Protection can only adjudicate on matters relating to the MCA, and the MCA relates to the ‘mental capacity’ and the best interests of the mother, not the child. The Court of Protection has absolutely no jurisdiction for child protection (unless the child is over 16, and subject to the MCA themselves). It is the family court, not the Court of Protection, which is concerned with child protection, and the family court has no jurisdiction to require caesarean sections on the mother. In short, unless the Court somehow suspended the rule of law and made up new rules – which I find hard to believe – the decision about the caesarean must have been based around the woman’s own best interests not child protection.

Decisions on best interests in the Court of Protection are not always about a person’s health, but in this case I would be surprised if the woman’s health were not a factor. It may not have been her physical health though, and it is possible that there were concerns that a natural birth or harm to the baby might harm her mental health, so it is possible that the child’s interests were indirectly relevant to the Court of Protection’s decision. This is pure speculation of course; unless the judgment is published, we cannot know what the reasons were. According to Essex County Council, the health trust were concerned about risks to mother and child, and that is why they applied to the Court of Protection. The risks to the child may have been incidental to the Court of Protection’s decision, or indirectly related through their entanglement with the mother’s own interests, but would never have been the sole motivating factor.

What I’ve just written is not meant to defend the actions of either the Health Trust or the local authority, just to say that there is a huge amount of misinformation out there about this case, and misinterpretation of the law – even amongst lawyers. And so we should tread very cautiously indeed when contemplating what this case means. In my view, this case – and the media storm around it – demonstrates exactly why the Court of Protection needs to publish anonymised judgments for controversial cases such as this. Without those facts being put in the public domain, people will invent them or misinterpret what has happened. Recent evidence to the House of Lords Select Committee on the MCA suggests that the senior judiciary of the Court of Protection and key players such as the Official Solicitor are well aware of this, and are encouraging judges to publish judgments to dispel the myth and rumour which can otherwise take hold. This case, apparently, was not published. I would not be surprised, however, if this case were published shortly in order to clarify what occurred, and I am sure that Essex County Council themselves would be grateful to have a clearer presentation of the facts to defend their actions.

Having said all that, and granted that there is a huge amount of myth and rumour in circulation, there are aspects of this case which ring alarm bells for me. The first tier of alarm bells was summed up by Lisa Hallgarten in the Guardian:
A landmark legal case has already established that a woman has the right to refuse a caesarean even if there is a risk to the foetus of continuing pregnancy to term. There is no reason that the priority of rights should be reversed in a woman who is mentally ill.
You might call this the ‘disability rights’ perspective. Nonconsensual interventions under the Mental Capacity Act are linked to a disturbance or impairment in the functioning of the mind or brain. That does not only mean people with mental disabilities or mental health problems, but it certainly includes them. A recently ratified UN treaty – the Convention on the Rights of Persons with Disabilities - poses the question: why should people with disabilities and mental illnesses face these kinds of interventions when people without do not? It looks very much as if the Mental Capacity Act itself is not compatible with this Convention, although views on this differ. It is certainly a question it would be good to see the media asking more often. Cases like this – which really epitomise the violations of bodily integrity which the Mental Capacity Act can legislate for – really highlight the coercive edge which campaigners are concerned about.

Hallgarten goes on to ask:
Moreover, it is an open question how to distinguish between a woman's incapacity to make a decision and her right to make a decision that we might disagree with or which could be considered "irrational", in contradiction of medical advice or moral consensus.
Again, this is an issue that comes up a lot around the Mental Capacity Act 2005: how can we distinguish decisions which are merely irrational or unwise, which everybody is entitled to make, from those which are incapable. This is actually quite a profound philosophical problem (my own view is that it is insoluble; ‘mental incapacity’ is a conceptual device which we cling onto to mask the value judgments we are bringing to bear when justifying interventions in situations which we regard as intolerable). The disability Convention referred to above poses serious questions about how we deal with ‘capacity’, and emphasises the role of support for decision making. Even the Mental Capacity Act requires support to be provided for a person to make their own decision before it is made on their behalf, and decisions made on their behalf should involve the person as far as possible. If – as alleged – the woman was not consulted about the caesarean, it is difficult to see how these requirements could be complied with. These are all important questions, but until we see the judgment in this case we will not know how the Court of Protection managed the question of the woman’s capacity.

The allegation which set the most alarm bells ringing for me in this case, was the claim that the woman knew nothing about the plan to deliver her child by caesarean, knew nothing about the proceedings in the Court of Protection which decided this matter. If true (and given so many other elements of the story crumble on closer inspection, it may not be), this really is a very concerning factor. Even within the framework of domestic law as it stands – not the more radical disability Convention – this may be problematic. The leading case on performing caesarean’s without consent on mental capacity related grounds - St George's Healthcare NHS Trust v S [1998] 3 All ER 673, 698 – lays down guidance for health authorities applying to the Court for permission to go ahead with such interventions. This guidance emphatically stresses the importance of involving the mother in the Court proceedings, of notifying her of their existence and ensuring that she is represented in them. If it is true that she was not notified, this suggests that the Court of Protection in this case departed from the St George’s guidance – at least regarding notification. There are reasons why this might be permissible under the St George’s guidance – it may have been an emergency, or it may have been felt that the act of notifying the woman of the plan would itself have raised serious risks. We can only speculate at this stage.

Proceedings on a matter like this without notifying the woman are a very serious matter indeed, and would require very stringent justification. I am not sure I can think of any case where the Court of Protection has had to explicitly justify excluding a person in this way, it raises very serious human rights questions, and this is yet another reason why I think the Court should have published an anonymised transcript of the judgment.

As I’ve written before on this blog, the European Court of Human Rights has been laying down what has become known as the ‘rule of personal presence’ for court cases regarding legal capacity. In essence, these cases emphasise that the participation in court of the person who is the subject of the case is very important, and can only be departed from on the basis of medical evidence, and where this is in pursuit of a legitimate aim, is necessary and proportionate. This is because if the person does not attend court they will not be able to rebut any arguments or facts advanced before the court which they dispute. The St George’s case referred to above is a pretty good demonstration of why this is important – in that case the health trust actually lied about the woman, saying she was in labour: had she been participating, they would not have been able to make this claim. Another reason why participation is important is because the Court is supposed to be able to come to it’s own view about matters such as a person’s health, mental state, their emotional state, and sole reliance on medical opinion is regarded as introducing a risk of excessive arbitrariness. We have seen a recent succession of Court of Protection cases where the court has rejected all the medical evidence as to mental capacity where the judge has met the person concerned: this cannot happen when the person is not participating.

Another reason why notification is regarded as important is because if a person does not know about the case, or the ruling, they cannot challenge it – in legal language, cannot use any remedies against it. Under Article 13 of the European Convention on Human Rights (ECHR), lack of access to an effective remedy is a violation of a person’s rights in itself. It is possible in this case that the woman may have actually had legal representation – through a litigation friend – without her knowing about it. The theory being that the litigation friend can represent her interests and exercise any remedies on her behalf, but this approach is not without its problems as the litigation friend will themselves exercise discretionary control over access to any remedies, which again, is problematic under ECHR case law. In short, it is not totally unlawful under the ECHR for proceedings of this nature to take place without the person being notified, but it is a very serious thing, with many human rights issues to consider. Again, for this reason, if the allegations that she were not notified are true I think the Court should have published the judgment to demonstrate how these matters were managed.

One last risk of proceedings where a person is kept in the dark about them, is that the proceedings themselves can be experienced as an injustice, can alienate a person not only from those delivering the intervention but also the system of justice in place in a country. An approach known as ‘therapeutic jurisprudence’ emphasises how important it is that a person plays a role in cases which concern them, that they feel their voice is heard, for their own recovery. Proceedings where a person is deliberately excluded can carry risks of their own to the person’s recovery.

Questions also remain about the family court proceedings regarding the baby, once it was delivered. Not being a family law specialist, I don’t feel equipped to comment on those. Whatever one thinks of the outcome of the decisions of the health trust, the local authority and the courts, I doubt they are decisions that anybody took lightly. What is clear, is that whatever the legalities, this entire experience will have been extremely distressing to the mother. Whilst I think that it is important that the public know if the Court is exercising powers of this nature, and in this way, I do hope the resultant media storm is not exacerbating what must already be a very distressing time to the mother. Our thoughts are with her.

[Update: A judgment from Chelmsford County Court regarding the child has now been published.  This sheds little more light on the Court of Protection proceedings, although it does appear that the local authority were listed as respondents to the case, even if they did not make the application.  The judgment is very critical of the claim that she had regained capacity, and of the doctors for letting her return to Italy as this diminished the chance of being reuinited with her child (although how the doctors could stop her on these grounds I don't know!)]

14 comments:

  1. A number of years ago, I was appalled to discover that a woman I knew, who was alcohol dependent and pregnant, had been detained under Sec.2, primarily to protect her unborn child from her drinking. The MHA does not permit this, and indeed, child protection legislation does not apply to the unborn child, although child protection case conferences are not uncommon to discuss plans for an unborn child where risk factors are identified. As far as I know, a foetus has no rights under law until it is born.

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  2. Hi. This is an extremely knowledgable and well argued piece which has clarified a lot of the issues for me. I have blogged about this myself though purely from the point of view of the importance of public disclosure and full debate about the issues which you acknowledge above would be helpful.
    I feel that if Essex had prioritised having a timeline and a good press release available for what would would inevitably been a controversial case then it would have taken the wind out of the Telegraph's sails.
    Unfortunately there is a strong sentiment within much of social work that privacy is an overwhelming reason for not publishing information about such cases.
    What this case demonstrates is that failure to respond to legitimate public interest causes distrust of professionals and actually fuels media and political intrusion.

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    1. Hi there, thanks for your comment. I strongly suspect that Essex CC could not publish a timeline of events without a court order, my guess (and also Lucy Reed's) is that on Monday they scrambled an emergency court hearing to give them permission to do this. To have just gone ahead and done so would have risked breaching not only their duty of confidentiality and the Data Protection Act, but also would have been a contempt of court. I have no idea, however, how Christopher Booker got around the contempt of court issue (if he did).

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  3. Thanks Lucy. I've been one of those unable either to accept the line that "this is the tip of an horrific iceberg" or that "when the facts come out we'll all understand there are no causes for concern"; I welcome these balanced and informed observations.

    You refer to the unsurprising fact - which emerged from Essex CC's statement - that it was the health trust that applied to the Court of Protection. I am intrugued, however, to see what may emerge to cast light on paragraph 7 of the published February judgment: "Mr Justice Mostyn, who apart from giving various directions in relation to the Local Authority and others, gave permission for the birth by way of caesarean section." - that phrasing suggests Essex CC was more than a bystander.

    I have also shared the doubts you express in your final sentence about how the doctors could stop her returning to Italy, see http://mentalhealthandcapacitylaw.wordpress.com/2013/12/03/a-post-that-is-not-about-forced-caesarean-sections/#comment-1103

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    1. Thanks Allan. I'm very much of a 'wait and see' view on this case. I found it hard to believe the initial allegations that the motives underlying the caesarean application were child protection, but as you say it does look as if the LA were respondents in the COP case. Having said that, if there were concerns about the care of the child in the immediate aftermath, they might have been joined to the proceedings?

      According to Joshua Rozenberg, there is no written judgment of the COP decision - it was ex tempore. We can't know the full circumstances in which it was delivered of course (in an emergency? In the middle of the night? by telephone?), but that also concerns me - if the woman was not notified and did not participate in the case, surely she was entitled to a written reasoned judgment explaining how the Court arrived at that decision? Perhaps Rozenberg is mistaken, or perhaps there were truly exceptional circumstances, but I would have thought that in an intervention of this nature it would be important to explain in writing to the woman why what had happened to her had taken place. Especially if - as alleged - she was not notified.

      Also, this case prompted me to revisit the guidance on caesarean's in Re MB [1997] 2 FCR 541. Re MB advises that an application to the Court should be made for caesareans, much as Bland advises an application for withdrawal of ANH and Re F does for sterilisation. So the Trust weren't just being 'nice' by applying to the COP, but were complying with this guidance. It seems to me a bit of an oversight that this guidance was not replicated in the MCA code of practice, given that all the other situations where an application is advised were.

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  4. It is interesting how it is assumed that because Essex CC put out a statement that appeared to justify the actions taken and their stance, it is readily forgotten that cases where local authorities / social workers make decisions are no means correct when examined by more critical persons.

    The plight of Mark and Steven Neary with Hillingdon council as one that hit the press was a rare insight into how draconian behaviours are common in social work and how vindictive the local authority staff can be if made to look bad publicly.

    It is very clear from the Ballii information there were lots of things that common sense and the law might find wanting in what happened to this woman and her unborn then born child. Judges should challenge professionals more than they do by themselves getting better equipped to understand the complexity of subjects they are expected to deal with.

    It should never be assumed professionals always make legal or sound judgements- certainly not in a subjective area such as social work / mental health, in an age where psychiatry is trying to define every aberation of the mind as a mental illness - i.e. most of us are mentally ill, except the people who assess the rest of us of course.

    I know people with bi polar disease and other serious conditions, with and without insight, and I know how they fear social workers and the non private mental heath system that connects with them. Trying to get on with a life for them is about feeling someone is about looking over their shoulder or avoiding people who they fear.

    Also many children have mentally ill parents and are young carers, some I have noted in articles and programmes talk about hiding this from the 'system' for fear of being separated from their parent. It is more often those who sit in judgement on average families that are destructive to children and cause long term harm- not the parent with a problem.

    In many parts of the world children are not permanently harmed by poor early experiences- that is a fact. There is much wrong in our society here and the system will break society because it is already showing serious cracks. Children growing up in care disconnected and often abused is no solution to poor parenting which is not abusive.

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  5. The Court of Protection judgement and a transcript of the proceedings is now available to the public.

    Daresay many people know more about this that me, but following the 'Dr A' case (A NHS Trust v Dr A [2013] EWHC 2442 (COP)) if the mother was a detained patient, shouldn't this case have been transferred from the Court of Protection to 'the inherent jurisdiction' of the High Court anyway?

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    1. Top marks! Yes, I would have thought so, although that is only an issue if the order effectively ordered what would amount to a deprivation of liberty. I would imagine it would, but the potential DoL isn't discussed. Along with quite a few other important matters...

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    2. That's a relief. I understand more than I thought. Is Mostyn J going to get picked up on that? I was surprised, after the West Cheshire judgment, that the proposed compulsory feeding of Dr A was considering technically as a DoL, rather than the sort of thing that could be done under s. 5 and s. 6 of the MCA, but if that was one, the sorts of restraint and discussed in the transcript of the hearing for what is a much more invasive and radical intervention must sure have been one also? I suppose the key issue in considering both as a DoL would have been the conscientious objection of both patients to the procedure. Rushed though the hearing clearly was, I was impressed that Mostyn J made clear at the outset whose best interests he was making a judgment in and managed to demonstrate some sensitivity about it being in the 'best interest' of the mother to be delivered of a healthy live baby. His comments about the likely attitude of the LA to child protection issues also demonstrate not only his awareness of the wider issues but the independence of the separate legal processes. Have had a look at Neil Munro's blog about the potential shortcomings of the judgment but I'd say this judgment actually anticipates some of the criticisms being made in the media hue and cry, not that that's ever going to be conceded in this inquisition cum moral panic being orchestrated by mid-market tabloid.

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    3. That's a truly brilliant observation - even after 2 days of solidly thinking about this case, the Dr A conflict hadn't occurred to me. Can't imagine you could do a C-section without an element of DoLs. Of course, this decision was made in August 2012, so it pre-dates the Dr A decision.

      Excellent piece Lucy - even amongst all my disquiet about the lurid way the Sunday Telegraph misrepresented the facts, there are issues about this case; not least being the whole issue of capacity and that we have a class of persons who are unable to make decisions that the State considers poor. I thought your paragraph about the profound philosophical question was bang on.

      I also feel that it might be long overdue to bring into public debate that in these proceedings we often end up with the State (the health authority or LA) arguing for what they think is in the patient's best interests, the Judge deciding what is in the patient's best interests, and the Official Solicitor taking up that same role of deciding for themselves what they think the patient's best interests are.

      Why are people lacking capacity denied the article 6 right that everyone else gets, no matter how foolish their position may seem to outsiders, to have what they want argued for? (Or at the very least, for the advocate acting on their behalf argues AGAINST State intervention and make sure that the Court has heard the other side of the case - there are of course cases where the incapacitated person is so incapacitated that they can't comprehend that there is a Court case at all)

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    4. Thanks AP! to stop us all sinking into despair, have you read this marvellous paper by Hedley J?

      www.peteredwardslaw.com/latest/sir-mark-hedley-examination-third-principle-mental-capacity-act/

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    5. Hum, well while I do entirely agree that all possible constructions of the range of possibilities should be aired in a hearing and that the right to take unwise decisions is a key one, I think having someone else take an unwise decision on your behalf about serious medical treatment sounds pretty much like medical negligence to me. I suppose this is why there are advanced directives. In this case, the mother has been quoted as having maintained her objection to the use caesarean procedure since the birth (but because of our marvellous press, it's entirely possible she had a more nuanced position that's simply been truncated into better copy). I can see that part of the evidence the judge considered was the two previous elective caesarean procedures she had undergone in the delivery of her other two children. I presume she validly consented and co-operated with these operations. I think a judge could reasonably infer from this that if well, she might have consented to the procedure. Her views in the matter are likely to have been coloured by what happened next. More and more details about this case are spilling into the media so on the one hand, more details about the timing and circumstances of her losing custody of her other children may illuminate the background to some of the decisions but on the other might undermine and expose this terribly vulnerable suffering soul further.

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  6. Incapacitated by Bad Pharma.
    Simple theory that no one is discussing is, by giving this woman a caesarean may have been to give her more Bad Pharma. Her relapse may have been severe adverse side effects from not taking her Bad Pharma. Sad thing is that this could happen to anyone of us, all in the name of Bad Pharma.

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  7. Dear Commenters,

    Just a friendly remind that I CANNOT publish comments which make reference to cases in the Court of Protection or the family courts which are not already (lawfully) in the public domain. Apologies. If you want to re-submit a comment phrased in more general terms, and not making reference to your particular case, that would be fine.

    Thanks, Lucy

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