A post that is not about forced caesarean sections

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 [1996] 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.

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4 thoughts on “A post that is not about forced caesarean sections

  1. Twitter knows I have been following this story with interest! This article has prompted the following reflections.

    Caesarian without consent under Mental Health Act?

    You refer to the case of Tameside and Glossop v CH in support of the proposition that “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.”

    The case was certainly controversial, but did it go as far as this suggests? It relates to section 63 Mental Health Act, which permits treatment “for the mental disorder from which she is suffering” without consent. As the BMJ reports it http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2126494/pdf/9146395.pdf, the controversy was the weaselly way in which it was argued that the caesarian was treatment of the disorder: “Firstly, an ancillary reason for the induction and, if necessary, the caesarean section was to prevent a deterioration in CH’s mental state. Secondly, for the treatment of CH’s schizophrenia to be effective it was necessary for her to give birth to a live baby. Thirdly, the administration of antipsychotic drugs had been necessarily interrupted by pregnancy and could not be resumed until her child was born.”

    I can’t read this as authority that it could ever be enough for the mental disorder to be the reason for the absence of consent to the caesarian.

    Moreover, in the later case of ex parte S at paragraphs 75 and 76, http://www.globalhealthrights.org/wp-content/uploads/2013/03/EWCA-1998-Regina-on-application-of-S-v.-Louize-Collins-and-Ors..pdf#page=20, the Court of Appeal seems rather to assume that a caesarian is a “medical procedure unrelated to her mental condition”.

    Moreover, mental capacity at the time of both of those decisions would be assessed under common law principles which as you rightly say have been supplanted by the Mental Capacity Act 2005.

    I agree with you Tameside and Glossop should be treated with caution, but I doubt it has even the authority you allow it.

    Permitting the mother to return to Italy?

    You critique 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… 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.”

    The legal starting point, surely, is that the presumption of capacity on the part of the mother gives rise to her right to make an automomous decision even if unwise – no-one disputes what her express wishes were. I cannot see how we could – or should – have any way in which the best interests of the child enable us to prevent the mother’s return to Italy.

    The judge makes an intriguing comment at paragraph 9 that he is “critical of the doctors because it appears to me that she was dispatched (indeed escorted) from the UK with undue haste simply because she wished to go back to Italy.” If she had capacity, however “unwell” she was, what basis was there for overriding her wishes? If she was conveniently found to have had capacity for the purposes of dispatching her from the country then (a) that smacks of the conspiracy theory that your article challenges; and (b) it is an unusual conspiracy tool to grant her personal autonomy – far easier to assess that a person lacks capacity to control them…

    Adoption in 9 months in the best interests of the child?

    You explain the judge’s reasoning. Here I just want to highlight that in at least two significant respects your explanation draws on controversial principles.

    Firstly, you say that “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.”

    True, but it is contested evidence, and your readers might wish to be aware of this dialogue: http://www.14graysinnsquare.co.uk/The_childs_time_frame_%20a_neuro-scientific_perspective.pdf

    Secondly, you say that “What matters is reaching the decision which will reflect P’s best interests”. Could that possibly be controversial? Yes. Your article itself raises “serious and troubling questions about how we define best interests in cases concerning families”. European human rights jurisprudence tends to suggest that the best interests of the child are not so divorced from the best interests of the family as we in the UK tend to think. See GNAHORE v. FRANCE – 40031/98 [2000] ECHR 420 (19 September 2000)

    “The Court emphasises that in cases of this type the child’s interest must come before all other considerations. However, when properly analysed, that interest is seen to comprise two limbs.

    On the one hand, the interest clearly entails ensuring that the child develops in a sound environment and that under no circumstances can a parent be entitled under Article 8 to have measures taken that would harm the child’s health and development…

    On the other hand, it is clear that it is equally in the child’s interest for its ties with its family to be maintained, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots. It follows that the interest of the child dictates that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family.

    In the interest not only of the parent concerned, but also of the child, the ultimate aim of any “care order” must be to “reunit[e] the … parent with his or her child””

    This caselaw underlies the principles enunciated by the Supreme Court in B (a Child), Re [2013] UKSC 33 (12 June 2013) that the test for adoption without consent is not simply that it is in the best interests of the child:

    “The Supreme Court’s decision in Re B is important for this case. There is no debate about the threshold here; it was satisfied. The question is whether the judge was wrong to make a care order with a care plan for adoption and then to go on to make a placement order. Re B is a forceful reminder that such orders are “very extreme”, only made when “necessary” for the protection of the child’s interests, which means “when nothing else will do”, “when all else fails”. The court “must never lose sight of the fact that [the child’s] interests include being brought up by her natural family, ideally her parents, or at least one of them” and adoption “should only be contemplated as a last resort”.” [P (A Child) [2013] EWCA Civ 963 (30 July 2013)]

    • Thanks for this, it is really interesting.

      I am obviously trouble-making with the Tameside point, but trying to point out that the application to the CoP far from being an illicit application to a dangerous secret court is in fact good practice. Certainly when juxtaposed with some of the more troubling practice permitted under Part IV MHA. Unless we actually know the reasons for the caesarean being performed which we do not we cannot assess its relevance to this set of facts, I was only trying to highlight the disjuncture between the two jurisdictions. I hold no brief for the MCA but having a prospective hearing and applying a threshold of incapacity are safeguards for treatment under the MCA which are not available for treatment under the MHA (unless you apply for JR which is often held after the fact).

      I agree with your take on the legal starting point, and this creates a bind for decision-makers. If she had capacity and wanted to return to Italy without the child then there was no power to detain. Importantly, even though she is an EU citizen since she was presumably not a worker or work-seeker she would also not be entitled to social assistance from the UK so unless she had independent means of support I’m not sure what she would be able to live on (although this one definitely falls within the scope of the CFREU which has primacy over domestic law and I’d argue that we had a positive duty to ensure she had welfare support whilst she waited for the child to be restored to her care given that the content of Articles 7 and 9 CFREU mirror articles 8 and 12 ECHR which we already recognise domestically as creating positive duties i.e. no Protocol 30 issues should arise).

      I, personally, doubt a conspiracy theory to dispatch her from the country. But that is speculative. We know nothing about how decisions were made at that point or what evidence pointed towards her capacity. Obviously the judge at the hearing concerning the care order was not empowered to make an order concerning the mother’s capacity, so did not critically evaluate it.

      I do wonder if the complexity added to the case by her Italian nationality, uncertainty about how to secure her welfare after she was discharged from hospital, coupled with some rather rigid judgements about the best interests of the child had the cumulative effect of creating a cock-up at a point when irrespective of capacity this woman was only 7 weeks postpartum, in a foreign country, without her family, and had just been discharged from a psychiatric hospital – and thus highly vulnerable. I do not think capacity is an either/or judgment. Nor do I think assessments of capacity can easily be made without regard to their wider implications. That does not mean doctors, social workers or family members routinely override unwise decisions. But it would be more comfortable if the decision to return to Italy had also been referred to the CoP.

      I should be clear I’m not trying to evaluate the judge’s decision to allow the adoption order. I take no view on whether it was right or not. I was just trying to clarify which bits of the case we can safely give opinions on, which bits have yet to be reported and we can only speculate about, and which bits have clearly been reported wrongly. But your take on why the best interests assessment may have been wrong is fascinating, thanks for that.

  2. Pingback: Starting a family when you have a mental health diagnosis: unfit to be a mother? | Sectioned

  3. Pingback: Update on the Essex C-Section case : pinktape.co.uk

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