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.