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 Munro, Suesspicious 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!)]