A post which is about caesarean without consent

‘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 healthy 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.

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25 thoughts on “A post which is about caesarean without consent

  1. In reply to the question in your final paragraph, his objection wasn’t to the placement in the mother and baby unit, but to the local authority’s plan to invite the police to remove the child into police protection.

    • Yes that’s what I thought on first reading, but read in conjunction with the transcript it doesn’t make sense. The options laid out in the transcript are the local authority’s preferred option – police protection order, or the clinicians suggestion supported by the Official Solicitor of remaining in hospital and being transferred to a Mother and Baby Unit. The wording in para 7 is ‘ Mr. Lock QC questions what the risk of significant harm would be if the child was kept under supervision in a Mother and Baby unit following his or her birth…I think on the basis of what has been
      said to me that would be heavy-handed and might cause significant deterioration in the mother’s mental health in circumstances where I am required to consider her best interests.’

      I cannot understand why moving from being detained in one specialist mental health setting to another could be either heavy-handed or jeopardise the mother’s mental health. It might not be best for the baby, but that was a) not properly the subject for that hearing and b) a little implausible since the only evidence available about AA’s parenting to date was that she might be guilty of neglect which she would not be able to do as an inpatient.

      • Having read it again with the headnote the only way it makes sense is that the heavy-handed refers to the local authority plans only and Mostyn simply does not realise that the proposal to keep the mother and baby in hospital and transfer them to a specialist mental health service is a third option, outside family law which might be in their best interests. I find that prospect terrifying (the judge being that wrong) so trust I am wrong, but I find it hard to make sense of the discussion in the transcript when the Official Solicitor presses him to recommend the Mother and Baby Unit any other way.

      • It reads to me that the judge would think it unnecessarily heavy handed for the police to come along and take the child into protective custody in accordance with section 46. The judge obviously felt that it would be kinder for the mother to have her child removed by way of a section 38 order.

  2. That was swift work Nell!! I completely agree, you sense that this judgment wasn’t intended for wider consumption. The words ‘rubber stamp’ came to mind reading this: what is the point of going to the expense and effort of a COP hearing if the COP isn’t going to scrutinise the evidence on capacity and best interests in any detail? What kind of safeguard is that meant to be?! Absolute no analysis of a) capacity (what, precisely, did she not understand/use/weigh, how had she been supported to understand it?) or b) the consultation and subjective considerations of s4 MCA or c) the proportionality assessment of s6 MCA (is a 1% risk worth taking for a less traumatic birth?). I also wonder if the measures may have amounted to a deprivation of liberty, which is not even discussed, in which case the ‘eligiblity’ issue which arose for Dr A would apply as she’s detained under the MHA. Neither is there any reasoning behind the extreme measure of not notifying her about the proceedings. And given the time it took to transcribe this judgment, I think we can conclude this might be the first time she herself had access to this reasoning!

    If we were to be charitable to Mostyn, we might say that this looks like the work of an emergency hearing, where there wasn’t time to involve AA or get more evidence on her views or instruct an independent expert to examine capacity in more detail. But then we might ask… why did this end up as an emergency hearing? She had been detained for 5 weeks. The fact of her pregnancy can hardly have snuck up on them unawares, nor the likelihood of her having to give birth at some point. The St George’s guidance is clear that you have to start preparations early, that you should avoid emergency hearings so that proper evidence can be gathered and the person can be involved. It’s not the nightmare scenario that Booker imagined, but it does resemble the kinds of deferential and paternalistic judgments given in the early days of the declaratory jurisdiction.

    • I cannot be charitable to Mostyn J. Judges get paid to do a better job than this and the statute isn’t hard to understand. If the evidence isn’t available because it is an emergency he can say so. Any judge sitting in the Court of Protection should certainly be aware that there are plenty of people detained under the Mental Health Act who retain capacity.

      My only suggestion regarding the hospital is that given she had a psychotic disorder which might respond rapidly to treatment (perhaps it had in the past) they were hoping she would stabilise more quickly than she, in fact, did and would either be at home in Italy well before the birth, or at least fully capable of making treatment decisions at the time of the birth. It isn’t really an excuse, they needed to plan for the alternative. But I can see how it would arise.

      • You are quite right – the judgment doesn’t give any real awareness of its own shortcomings. I wondered if she might have grounds to have it set aside on appeal, or to JR it using s7 HRA. She’s probably out of time for an appeal, and probably out of time for the 1 year limit on HRA claims, but she might have a case for it to be extended. Failing that… ECHR, Art 6, 8, 13 and 14 claim?

      • Obviously an appeal at this stage would be academic because the procedure has been carried out already. I am however most curious about why the Children Act Proceedings weren’t appealed? It seems this lady had questionable representation in all of the proceeding. Views not sought! No challange of medical evidence! Misapplication of relevent law. Had her representatives ever met her? The questions seem never ending!

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  5. Hello,
    I agree that he is expressing concern about a possible PPO being heavy handed and is indicating to the LA that the Mother should be afforded due process in the form of a proper ICO hearing. Which jars rather with the legitimate criticism of the CoP hearing. I do think we need to recognise its an extempore judgment – as you say the paucity of reasons doesn’t mean there wasn’t evidence to support the decision on capacity or declaration but its not clear on the face of it. I’ve just posted an update on Pink Tape and will link to this.

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

  7. I haven’t had a chance to read the judgment yet, but from your analysis, it reminds me of DH NHS Trust v PS (http://www.bailii.org/ew/cases/EWHC/Fam/2010/1217.html). There, invasive treatment for uterine cancer was found to be in the individual’s best interests (she has an intellectual disability), with the capacity test of the psychiatrist accepted without discussion as to why, and next to no analysis at all as to why it was in her best interests.

    There is so much discussion at the moment as to the ‘secretive’ nature of the CoP, and while I agree with the barrister on radio 4 this morning who stated that ‘private’ was a better word, judgments such as this do nothing to support the case that privacy should be needed. If the CoP is going to remain closed-door, then it needs to be working harder to scrutinise issues of capacity and best interests; if it acts, as Lucy says, as a ‘rubber stamp’, then it is difficult to continue to argue that more transparency will cause greater harm than good.

  8. I think the judgment you link to is at least better on best interests. There the best interests assessment, whilst not explicitly linked to the proportionality assessment in s.6 MCA which Lucy mentions above is pretty straightforward – PS will definitely die if the surgery is not performed. In AA’s case there was a 1% risk of uterine rupture which I’m guessing must be appalling to experience, but will not inevitably cause the mother’s death – note I’m not by any means suggesting it was in her best interests to have a vaginal delivery, but the risk had to be weighed against the risk of forced caesarean under a general anaesthetic which might cause subsequent psychological distress.

    In addition the judgment states that a nurse had spent considerable time with PS trying to build a relationship and persuade her to attend hospital, so the use of force to carry out the surgery is being considered only after other efforts have demonstrably failed. Again this may have happened in AA’s case but it is not reported.

  9. Oh, I agree that the PS judgment is better than AA’s – and I’m not sure the ‘wrong’ decision was made in that PS – and it’s also much more heartening to see the consultation with people who have developed a relationship with the individual, but there is still too little reasoning and too much acceptance of witness statements which we don’t get to see in the judgment. The judgment in AA is much more badly reasoned, and it makes you wonder how many other decisions are being similarly decided. We are being asked to place a lot of trust in the courts to make these decisions well, for the sake of individuals’ privacy. That is important, but they have to be making these decisions well, and I was disappointed enough with PS when it was released; AA just makes my brow furrow and heart sink a little more.

  10. “We are being asked to place a lot of trust in the courts to make these decisions well, for the sake of individuals’ privacy.” I agree. I think it is helpful to remember that judges are exercising judgement about the future, so some errors are to be expected. There are some errors we can anticipate and tolerate: errors because judges fail to predict the future and errors because judges have to mediate between law and the application of values and there are differences of opinion as to how those judgments should be made (how much risk can someone who lacks capacity be exposed to for example?). Publication presents a bind, because whilst the courts self-police what gets published it is the cases where they present their best reasoning which are likely to be published and even if we disagree on outcome or the reasoning process we can at least witness that reasoning took place. But demanding that everything gets published intrudes massively on privacy.

    And if one goal is to demonstrate that the innocent have nothing to fear publishing judgments like this does not really help…

    We clearly need more imaginative solutions to this conundrum than an endless stand-off between the values of transparency versus privacy, but I am struggling to conceptualise them at the moment.

  11. My reading is that Mostyn J was trying to be helpful by dissuading the LA from seeking the PPO within the boundaries of not having jurisdiction to actually deal with the issue at the CoP hearing.

    I assume he thought that by blocking the PPO idea, there would then be a full discussion of the issue of the baby’s care at the ICO hearing. Paragraph 7 of the judgment makes it plain that he anticipated the suitability of a mother and baby unit would be debated.

    In actual fact, I think he inadvertently achieved the opposite, as I suspect the recital in the Order addressed to Essex CC (which would have been the only thing they saw) may have appeared to the DJ at Chelmsford County Court to be tantamount to a High Court approval for the issuing of an ICO.

    • Thanks – yes that reverse reading (I did say I might be being uncharitable!) is completely plausible. But as you say it perhaps had some very unfortunate unintended consequences.

  12. I also find the failure to follow the guidelines set out in the St George’s Case (which have also been adopted by the RCOG as best practice) worrying.

    The mother was under the NHS Trust’s care for 5 weeks before they sought the Order. Before the facts were made public, I’d assumed the C-section had been necessitated by some sudden pregnancy complication. But, they must have known about the previous C-sections for some time (a physical exam would have shown the scar even if the medical records hadn’t arrived from Italy) so the VBAC risk can’t have been a new fact. Why didn’t they apply earlier?

    I suppose they may have hoped she’d regain capacity in the weeks before the birth but from the NHS trust statement it was clear they were struggling to medicate her adequately because of the pregnancy so I’d have thought it should have been foreseen that this might not happen.

    Had they applied at an earlier date, the mother could have been present and the issues of both capacity and her views on the caesarean more fully explored.

    One thing that does occur to me is that under the MCA, the court only has jurisdiction to make an order in relation to a person not habitually resident in the UK where it is urgent. Would the CoP have had jurisdiction to hear the case if the application had been made earlier and was therefore not urgent?

    • I’m not sure why they didn’t apply earlier. I agree with everything you say about St George’s.

      I’m pretty hazy about schedule 63 and the Hague Convention stuff. I don’t know of any caselaw where the meaning of urgent in this context has been tested. However, both our schedule and the Convention make it clear that the point is not that contracting states can only hear cases relating to adult protection if they are urgent, but that the other contracting state may disapply a measure which they think has been applied at a hearing where the adult has not had an opportunity to be heard in contravention of natural justice and the state does not have the excuse that the matter was urgent (sorry it is late – reading it again even I can’t quite make sense of that sentence, but I think it is right).

      In any event it would be a weird inversion of the objective of the Hague Convention to use it to justify granting an Italian national protected under it a lower level of protection on the basis that her care could not be planned…?

      • I’m commenting from the perspective of a baby Scots lawyer so forgive me if I struggle to understand some of differences between the jurisdictions.

        To be possibly unfair this sounds like an public authority sitting on its hands for a long time in order to get a result that seemed the most appropriate to them rather than their patient. To me there seems to be no need to wait until a woman’s due date when you already know she has had two CS’s I say this as a hospital is not above lying in order to do as it feel’s appropriate we have the St George case as proof of that. As well as that the tests that should have been applied have not been.

        It is mentioned in the transcript that she was looking forward to holding the baby, surely that’s an indication that she knows birth is imminent and shows an element of capcity.

        I speak this way because I have an aunt that has very severe bi-polar condition and has been sectioned hospitalised multiple times because of it. While it was clear she was unwell and hallucinations at times she did have capacity and was able to understand what was being said to her about her treatment (though she did not react well to some bits of advice though perfectly well people do that as well).

        It could be that AA’s reluctant to engage with medical staff was nothing more than she wanted to give birth in her home country and not here in the UK. Unwise perhaps but not a lack of capacity. We do not know however because of the very poor way this was clapped together and it should not have been an emergency hearing given the time the trust had to prepare for a variety of scenarios. If it does take them that length of time then some questions need to be asked as to how adequate care was at the time.

        While many are seeking to justify the actions of Mostyn by saying it was a quickie decision I do think he has a fair few questions to answer mostly why wasn’t he correctly applying the tests and safeguards and why instead of actually discussing evidence the hearing seems more akin to a quick chat rather than the serious situation it was. You are talking extremely serious surgery on a woman who is already mentally vulnerable, alone in a country that has a very alien mental health system to the one she is used to. There was no thought how this might affect her for the rest of her life and given she has mental health problems this should (though this is only my opinion) have been given some consideration. This is enough to give well women nightmares so I dread to think of the effect on AA.

        While I do think Mostyn was trying to think ahead in saying that a PPO would be heavy handed I think he should have been much clearer in his advice as it seems clear that the local authority was not really thinking this through at all. Having police appear to take away a baby from the side of a very unwell, vulnerable woman who was isolated and in a strange country? That isn’t just heavy handed in my opinion but quite callous and that mindset needs some examination. I cannot fathom for a moment how that could have been considered appropriate.

        I am concerned that this woman was unable to defend herself and while in a very vulnerable state has had terrible advice left right and centre. If it can happen to her then I am sure it happens regularly and that should be frightening for all of us.

  13. I don’t agree that the innocent have nothing to fear. They may not have anything to fear from the law when it works as it is intended to, – but how was this woman supposed to find someone to defend her interests?

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  16. I was cautious on commenting about the CoP proceedings until after the judgment. Although I have spoken to Alessandra I had not got all the details immediately.

    Your post is really good, which is why I have referred to it. Addtionally the medical arguments are seriously flawed.

    Furthermore this is a decision she took when she had capacity.

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