December 5, 2013
In this case Mostyn J. had at least four options available:
1. To consider the local authority’s request for a police protection order under s.46 Children Act. This would allow the police to remove the baby from AA’s care immediately after the birth.
2. To suggest the local authority apply under s.38 Children Act after the birth seeking an interim care order for the child. This would allow a hearing where AA’s interests could be represented by the Official Solicitor and the child’s welfare could be discussed.
3. To make an order under s.16 Mental Capacity Act finding that it is in the mother’s best interests to be cared for in a Mother and Baby Unit. It is not clear if this was properly advocated for by the Official Solicitor. The practical effect of this decision would be that the child would remain with the mother, but would not at this point be subject to any order under the Children Act. The Mother and Baby Unit option was recommended by the clinician working for the Health Trust and would allow AA and her baby to remain together consistent with her wishes. If it was necessary to detain AA to make this option possible then this could be done under the Mental Health Act (there is precedent for this, in Re E(Medical Treatment) the CoP ordered that the patient receive treatment for her mental disorder in her best interests, but in order to practically achieve this she was subsequently detained under s.3 MHA).
4. To make no order or recommendations at all.
Since the baby was to be born the following day we will assume 4 was not a realistic option. Mostyn J. ruled out 1 on the basis that it was heavy-handed. He took the initiative, indicating that he is capable of taking initiative and advocated 2. Why didn’t he take the initiative and apply 3 instead which was consistent with the medical evidence, evidence of AA’s wishes and presumably consistent with the child’s welfare?
There might have been strong reasons to suppose AA posed an immediate risk to her child after the birth. But this evidence did not appear to have been advanced by the local authority, instead the evidence was she might not be capable of caring for the child due to an earlier history of neglecting her other children.
In any event if AA posed immediate risks to her child after birth there would also be risks involved in option 2 which he did choose.
Choosing Option 3 would not prevent the local authority applying for an order under s.38 at any later point if they became concerned about the child’s welfare, or in an emergency asking the police to apply for an order under s.46. It only facilitated choices, it did not limit them.
Choosing Option 3 would rely on a bed being available. This would be an obligation on the Health Trust and not the local authority. Since AA was about to undergo major surgery Mostyn J. could easily have said that he was minded to make an order under the Mental Capacity Act but invited the Health Trust to ensure that the relevant service was available for AA and her child before doing so and then reconvened the hearing the following day.
In any event Option 3 was not chosen, despite the Official Solicitor representing the view that it should be. A further question then is why the Official Solicitor did not appeal this decision? It was of grave significance to AA, and as Celticknot pointed out in an earlier comment on this blog the senior courts have been critical of judgments made in the early stages after a child is born which lead inexorably to adoption. An advocate concerned with promoting AA’s best interests should have been vigilant regarding this point.
It has been said this is an extempore judgment. I agree. But I don’t think that justifies a failure to survey the options which has such serious implications for AA.
December 4, 2013
‘I might, if it is published, deplore Mostyn J’s reasoning about the mother’s best interests or her capacity…’
Showing uncanny prescience Mostyn J’s judgment and the transcript of the case of Re AA have now been published and I deplore them (warning pdf).
I wanted them to be better than this. But the judgment does not really explain how the test of capacity in s. 2 Mental Capacity Act applies to AA and reading the transcript my suspicion is that he has not assessed AA’s capacity properly, and may even have confused it with her best interests.
What did the judge know at the point he made his judgment?
AA was detained in hospital under s.3 of the Mental Health Act. She had a ‘schizophrenic disorder which was psychotic in nature’, and she was experiencing delusions.
She had had two previous births by caesarean section increasing the risk of a uterine rupture in this pregnancy to something close to 1%.
At the time of the hearing she was 39 weeks pregnant and it was proposed that the caesarean be performed the following day.
Her doctors favoured a planned caesarean performed under a general anaesthetic because they feared that if she was allowed to go into labour spontaneously she might lie about the onset of labour and interfere with efforts made to help her. Planned caesarean would allow them total control of the process and thus make the process maximally physically safe.
The finding of lack of capacity
In the judgment Mostyn J. tells us that he finds AA lacks capacity ‘within the meaning of s.2(1) MCA. But s.2(1) MCA only tells us that for a person to lack mental capacity in English law they must have a ‘an impairment of, or a disturbance in the functioning of, the mind or brain.’
AA certainly met this requirement. But the judgment does not tell us why she met the further requirements of being unable to make a decision under s.3 MCA. To be unable to make a decision a person must be unable to understand, retain, use or weigh or communicate their decision even after all necessary practical assistance has been provided to them. The judgment contains no discussion of what efforts have been made to discuss birth planning with AA, nor of whether she understands the consequences of refusing a caesarean section.
This does not mean AA had capacity at the time. Only that the judgment does not communicate that she did not.
The finding that a caesarean was in AA’s best interests
He further fails to apply the best interests test in s.4 correctly. He correctly identifies that the interests he is meant to take into account are primarily those of the mother and not those of the child who is, as yet, unborn. This is clearly a difficult task since in late pregnancy the interests of most women are intimately intertwined with those of their baby. There is a suggestion this was true for AA, because it is recorded in the transcript that she wants to see and hold her baby after it is born. Nevertheless the position in law is that we cannot start from the position of health baby = happy mother and work backwards to establish what the mother’s interests are.
We can however, identify in some cases that the mother’s best interests will prospectively be achieved through a healthy delivery and take that into account when making a best interests assessment. This is true when giving birth to a healthy child will be critical to the mother’s mental health for example. Unfortunately, Mostyn J. places a high value on this point but fails to consider any other evidence concerning the mothers past wishes, feelings, beliefs or values. Nor is any evidence from her family concerning her views on childbirth cited. Of course, this may not have been available, but its absence should have been noted and strongly regretted since it makes the decision reached under s.4 MCA largely artificial.
The actual best interests assessment to be reached here was a subtle one. Vaginal birth after caesarean is a normal practice and the risks of uterine rupture cited in the judgment are those given in standard literature given to women considering this. So if AA was refusing a caesarean this did not by itself indicate anything amiss. Many women with capacity with a history of previous caesareans choose to give birth vaginally every day. The case also reinforces the view that adults lacking capacity are not allowed to make the same risky decisions that are permitted to the rest of society.
As Lucy Series predicted, if AA had been present a better judgment might have been reached. There might have been practical difficulties in securing the physical presence of a woman with serious mental distress, currently detained who was also 39 weeks pregnant at this hearing. But the sheer absence of her voice in the decision being reached about her life is utterly inexcusable. We must do better than this.
Finally, the thing that utterly baffles me about this judgment is Mostyn J’s objection to the placement in a Mother and Baby Unit, which is what her treating clinician had recommended and which would have been by far the best option for her since it would have respected the one wish we know her to have had – to have contact with her baby. I cannot make head nor tail of paragraph 7 of the judgment and can only identify uncharitable (to Mostyn J.) interpretations to place upon it. If anyone could help me out I’d be grateful.
December 3, 2013
Commenting on this case is uncharacteristically fashionable for this blog.
But it has to be said that even after the publication today of the family court judgment concerning the placement of the little girl, P, for adoption there is still far too little which we can seriously evaluate here.
What can’t we say?
We cannot evaluate the original decision to admit the mother to hospital. It would appear that she has a history of significant mental disorder and has continued to receive subsequent specialist mental health care in Italy but the actual symptoms that precipitated her admission in June 2012 are not in the public domain and probably never will be since decisions to detain someone in hospital in this country are clinical rather than judicial and remain confidential.
We cannot evaluate Mostyn J’s judgment in a Court of Protection hearing held in August 2012. The hearing presumably found that the mother did not have capacity to consent to a caesarean section but that it would be in her best interests for the procedure to be performed. This could be for any number of reasons. That judgment is not in the public domain although it may yet be published. It is not clear why the decision about caesarean section needed to be made in court. Many pregnant women with mental disorders detained in hospital will retain capacity to make decisions about their care during the birth so this was not an inevitable or essential step by the hospital. There must therefore have been a specific aspect of the mother’s care that precipitated the move to seek a court order specifying that a caesarean section would be in her best interests.
It is worth noting that by taking this action the hospital were in fact opening their decision-making up to scrutiny, not concealing their actions in order to facilitate a secret adoption. Ss.5 and 6 of the Mental Capacity Act codify the doctrine of necessity – they allow clinicians confident that a medical procedure which is in an incapable adult’s best interests to carry it out and provide a general defence against actions under the civil or criminal law for doing so. If the mother’s clinicians were confident that she lacked capacity to consent to a caesarean and nevertheless would (or might) require one they did not need to apply to the Court of Protection for scrutiny of that decision.
It is also significant and welcome that the hearing took place in the Court of Protection. There is highly controversial caselaw that a caesarean section may be administered to a woman detained in a psychiatric hospital under s.63 of the Mental Health Act as treatment for her mental disorder (Tameside and Glossop v CH  1 FLR 762). In theory the hospital could, if the mother had refused a caesarean section for reasons relating to her mental disorder, have performed the procedure without her consent as long as it was in her best interests. This is an alarming state of affairs, but it is nevertheless a case that whilst criticised has not been overturned (though I’d strongly urge clinicians reading this not to administer caesarean sections to their detained but capable and refusing patients on ethical grounds alone).
Instead the hospital took a far more responsible course of action and asked the Court of Protection to clarify whether the mother had capacity and whether the intervention was in her best interests – thus providing two safeguards which do not apply to treatment administered under the Mental Health Act. I might, if it is published, deplore Mostyn J’s reasoning about the mother’s best interests or her capacity but I welcome the fact that the issue was decided in the Court of Protection.
We can evaluate the fact that soon after the birth of her child the mother returned to Italy whilst P remained in England. This was regrettable. Why this took place is not clear. The mother may have had strong reasons for wanting to return to Italy. P was with foster carers and it may not have been in her best interests to be removed and placed with a mother who was still seriously unwell at that time. Nevertheless allowing the mother and child to become separated at that time was a decision (or possibly omission) on the part of clinicians which has had significant implications for mother and child subsequently.
And we can evaluate the judicial reasons given for allowing P to be placed for adoption. These are simple. P was six months old at the time of the hearing in Feb 2013. The object of a Family Court hearing is to secure the welfare of the child. There is evidence that if adoption is agreed to be the best means of securing the child’s long-term welfare then the child’s best chances of achieving a stable placement are attained if the child is settled before nine months. So if adoption was agreed to be the best outcome time was of the essence for P. If on the other hand P was to return to the care of her mother, as her mother wished, her hope was that P would remain with foster carers in the UK for a further year before making the transition to life with her mother in Italy.
P’s mother had made a remarkable recovery and was doing well, but this was against a backdrop of recent serious mental illness. She did not currently care for her two older children. She did not have extended family who were in a position to care for P and it did not appear that P’s father was able to care for P. In those circumstances there was a risk that if P’s mother relapsed she would not be able to provide the stable placement P now needs if she is to have the maximum chance of having a good start in life. Nor was the transition plan proposed one which maximised P’s chances of stability.
At this point the circuitous route by which P had reached local authority care is irrelevant. What matters is reaching the decision which will reflect P’s best interests between now and when she turns 18. On the basis of the evidence the judge found that she would be more likely to find stability with an adoptive family than with her mother, even though adoptive families can be imperfect and unstable. As a result he over-rode the requirement for the parent’s consent to the adoption and allowed Essex County Council to start seeking a permanent family for the child.
What can we say?
There may well have been some cock-ups in this case. In particular, para 9 of the judgment describes a family court hearing in October 2012 when the mother appeared unwell but her doctors asserted that she had both legal capacity and the capacity to decide to return to Italy which she subsequently did. This practical separation of mother and child only seven weeks after the birth must, presumably, have made re-establishing contact difficult and raises serious and troubling questions about how we define best interests in cases concerning families. P’s interests were paramount and her mother at that time may not have been able to care for her, but it is not obvious on the basis of what has been reported so far that anyone involved was making decisions with a view to promoting the mother and child relationship.
At the same time whilst we do not know why the application for an order finding that a caesarean section was in the best interests was made we do know that making the application suggests a concern to uphold the law.
Nothing in the facts currently in the public domain suggests a conspiracy. I could try to excuse the terrible sensationalist reporting on this case on the basis that it does involve the complex operation of three different statutory jurisdictions. But I cannot grant that excuse. The underlying statutes are not difficult to understand. Decisions to admit people to hospital on the basis of a mental disorder without consent must be made under the Mental Health Act 1983, decisions taken about treatment for people lacking capacity must be made under the Mental Capacity Act 2005 and decisions made regarding the subsequent welfare of any child born as a result of those interventions must be made under the Children Act 1989.
The people who make decisions about Mental Health Act admission and treatment are psychiatrists and social workers and therefore employees of the NHS. The decisions made about the welfare of the child were made by social workers working in two different teams within Essex County Council. In the family court the judge was assisted by the evidence by P’s guardian and in the Court of Protection the mother will have been represented by the Official Solicitor. The conspiracy theorists are asking us to believe that multiple psychiatrists and social workers working for both the NHS and Essex County Council, assisted by judges sitting in two separate courts, as well as independent representatives of CAFCASS and the Official Solicitor colluded to acquire a baby. These people have clearly never tried to organise a meeting in the public sector.
There is a lot wrong with our legal system. But misrepresenting it as a closed system capable of a monumental conspiracy on this scale is not only a calumny it is dangerous. It leaves the people who have most cause to rely on it with unjustified fears – instead of focusing on the perfectly justified fears we should be addressing.
Pregnant women with mental disorders, even if currently detained, should not be given the impression that substitute decisions about their clinical care during childbirth are likely to be made on the basis of a social worker’s view about the best interests of the child, rather than what is in their clinical best interests. This is not true. Social workers were not involved in that decision.
Nor is it true that the judge made a decision to override the mother’s wishes for fear that she would stop taking her medication in the future as was reported in both the Daily Telegraph and Daily Mail. The far more profound issue was that the mother’s plans for the child involved a long period of uncertainty and the judge took the view that a stable placement through adoption was to be preferred.
There is a final question this case raises. We know that reporting judgments may be a good thing because transparency in judicial reasoning is right in principle. In the family courts and Court of Protection it may come at a cost to vulnerable participants who have no power to control the information which enters the public domain in this way.
One justification for reporting more cases is of course that we can scotch pernicious inaccurate reporting of this nature by ensuring the facts are available from the outset. But a trend worth monitoring when hysteria of this nature is so easy to whip up is the relationship the facts have to the commentary.
Call for Papers – Mental Health and Mental Capacity Law Stream Socio-Legal Studies Association Annual Conference, 9 – 11 April 2014
November 27, 2013
This years Socio-Legal Studies Association Annual Conference is to be held at Robert Gordon University, Aberdeen.
Initial Deadline for submissions: 27 January 2014
The past year has been a lively one for those interested in mental health and mental capacity law. The Supreme Court has made its first decision interpreting the Mental Capacity Act 2005 (and presumably its decision on the meaning of ‘deprivation of liberty’ will be handed down before the Conference). The Court of Protection continues to cut new ground, most notably in areas relating to best interests. We continue to see the results of how the Scots legislation and the Mental Health Act 2007 south of the border, are working in practice (CTOs, anyone?). At the international level, it is increasingly clear that the UN Convention on the Rights of Persons with Disabilities is changing what is expected of mental health and mental capacity law.
While these legal developments provide a particularly apt occasion for the stream, papers from all areas of the law relating to mental health, mental capacity and mental disability are welcome, including:
• Civil, criminal or informal mechanisms of control, in hospital or in the community
• The law relating to incapacity benefits, and other issues relating to care and programmes in the community;
• Issues relating to discrimination on the basis of mental disability (be it mental health issues, psychosocial disabilities, or learning disabilities)
• International law relating to people with mental disabilities;
• The role of administration or care-givers in the provision of services;
• The role or experience of service users in mental health care.
We impose no restriction on methodology: papers may be empirical, policy-centred, historical, analytic, traditional legal, or theoretical, in approach.
The SLSA is an interdisciplinary organization, and papers are welcome from any academic background, and from people at any stage of their career.
The stream co-ordinator is also happy to consider joint sessions with other streams in the conference where appropriate.
Please feel free to circulate this call for papers to interested scholars and other interested persons working in any discipline related to law and mental disability.
The stream co-ordinator is Peter Bartlett (firstname.lastname@example.org). Please feel free to contact him with enquiries about the stream. Proposals for papers should be submitted online through the conference website.
About the conference
The Socio-Legal Studies Conference occurs annually, in 2014 at the Department of Law at Robert Gordon University, Aberdeen. It is among the major socio-legal studies conferences internationally, attracting a wide variety of scholars, and subject streams within the conference span the range of topics in socio-legal studies.
All attendees (including presenters) must register for the conference and pay the required attendance fee. Reduced rates are available prior to 7 February 2014, and also for students and SLSA members. Scholarships are also available for students. For more information, see the conference web site.
November 25, 2013
‘…there is nothing either good or bad, but thinking makes it so. To me it is a prison.’ (Hamlet Act II, Scene II)
I taught a 2hr seminar today under the influence of a benzodiazepine. This was a good thing. I have epilepsy which is usually under control but recently I have suffered breakthrough seizures which are unpleasant and subsequently disrupt my memory, mood, behaviour and energy levels. This term I have had to rearrange classes at short notice when recovering from seizures, but thanks to an incredibly good service from my GP and consultant after suffering a minor seizure last night, I popped a new type of pill and was well enough to work this morning.
Ironically, at the moment I am writing a paper on the good of medication, or the challenging problem of defining whether it is the effectiveness of medication or the circumstances in which it is administered which make it a good intervention in some cases. But a conversation I had at the weekend where the phrase ‘chemical cosh’ was used made me realise how uncomfortable I feel about coming out about how I use medication to control my brain and psychological ‘mis’behaviour. Read the rest of this entry »
November 21, 2013
At issue in this post is the situation where a deprivation of liberty may be required for practical purposes, but is apparently precluded by the eligibility requirements contained in schedule 1A of the MCA.
This situation arose in A NHS Trust v Dr A  EWHC 2442 (COP). At the relevant time, Dr A, an Iranian doctor wishing to claim refugee status in the UK, was detained under s 3 of the Mental Health Act with a diagnosis of either paranoid personality disorder or a psychotic disorder. His passport had been confiscated by the UK Border Agency pending his enforced return to Iran, and he had commenced a hunger strike in an attempt to obtain its return. At the time of the court hearing, his weight was dangerously low. He had been force fed with a PEG for some time, but had commenced to remove it and thus actively resist the artificial feeding, resulting in a requirement of his ongoing sedation. The question was therefore whether the artificial feeding could be continued. Read the rest of this entry »
November 14, 2013
This post is about the judgment reported on the BBC yesterday concerning an application by an NHS Trust regarding their duties to resuscitate or intensively care for a Muslim man, Mr VT, who is currently in a minimally conscious state. The Trust took the view that further invasive treatment would not be in his best interests and the family opposed the application. Read the rest of this entry »
November 13, 2013
Sorry it has been a while. We’ve got some plans to migrate this blog over to a new site hosted on the Nottingham university website and generally make it bigger and better and I thought I’d add some blog posts ahead of time. I am trying to convince Peter Bartlett to share his views on the judgment in MH v UK.
In the meantime I’ve been trying to dissect the role autonomy plays in current judicial decision-making and formulate a coherent account of the role autonomy should play in how judges make substitute judgments on behalf of adults. One issue that arises remarkably infrequently in the caselaw is the relationship between autonomy and privacy… Read the rest of this entry »
October 19, 2012
The golden eggs are Bureš v The Czech Republic and Kedzior v Poland and whilst I would love to provide intelligent insightful analyses of these cases right now I’m both too pleased and too overwhelmed by teaching to do so. In two weeks a colleague takes over my EU lectures and I can come back to this. Consider this a placeholder. In the meantime anyone interested in standards of treatment for people with psychosocial disabilities, or the doublebinds created by placing someone under guardianship and leaving them no effective mechanism to challenge that guardianship should read these judgments. Read the rest of this entry »
Several weeks ago I was very kindly invited to give a paper at the Institute of Psychiatry concerning the Convention on the Rights of Persons with Disabilities and what impact it might have on treatment for disabled people. They asked me to look beyond the issues affecting people with mental health needs and consider other disabilities too. Afterwards I said I’d place the paper on this blog and then err did not.
But here it is! The paper had to be cut to make it work as a blog post and I have added some references and as many links as I can to make it useful to readers who were not present. Read the rest of this entry »