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Barbecue tongs and police being given power to force entry to a home

 

Another C-section Court of Protection case. You may have seen the Daily Telegraph piece already

http://www.telegraph.co.uk/news/uknews/law-and-order/10952683/Judge-allows-police-to-break-down-womans-door-for-enforced-caesarean.html

 

The Telegraph’s reporting is very faithful to the judgment here, and it is more of a factual report than a comment piece.  The judgment itself is the Mental Health Trust and DD 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/11.html

 

This is the sixth pregnancy that DD has had. She has mild to borderline learning disability (Full scale IQ of between 67 and 75 – if you read cognitive assessments often, that’s in the bottom 1% of the general population, but in the area where USUALLY , and I stress USUALLY the person has the capacity to make decisions for themselves and conduct litigation), but this was compounded by her autistic spectrum disorder, and it was the combination of the two difficulties that led the Court to conclude that she lacked capacity for the purposes of the Mental Health Act.

 

None of the previous five children live with DD or her partner, BC  – her partner is said to have significant learning difficulties and a lower IQ than DD. The obvious compelling fact from the five previous children is this, in relation to child 3

 

In June 2010, on a home visit, DD was found cradling a baby born in her home; the baby was believed to be 5-10 days old. Child 3 (male) was at that point seriously dehydrated and undernourished (it appears that the parents had sought to feed him with cup-a-soup), with lesions on his head believed to be caused by Bar-B-Q tongs which (from information provided by DD and BC at the time) BC had used to assist in the delivery (DD denies this)

 

Added to that is that during the pregnancy of the fourth child, mother suffered an embolism, leading to increased health risks in pregnancy and labour for future children

 

  • On a routine visit to DD’s and BC’s home in July 2011, DD was observed to be very unwell; she was fitting, and unconscious. It later transpired that she had suffered an intracerebral embolism causing fitting (status epilepticus), probably brought about by the pregnancy. BC was unable to say for how long DD had been in this dire state. DD was admitted to hospital as an emergency; her fitting could not be controlled, and she was therefore given general anaesthetic and ventilated on the intensive care unit. Monitoring of the unborn baby revealed evidence of foetal bradycardia (slowing of the heart and consequent distress). In order to treat the patient (DD) and relieve the foetal distress, an emergency caesarean section was therefore performed. DD suffered significant post-partum haemorrhage, and required a 2 unit blood transfusion. Child 4 (female) was born very prematurely at 29 weeks.

 

 

 

  • Following the birth, neither parent sought to see Child 4, nor did they engage with child care proceedings. Child 4 was made the subject of a care and placement order and placed for adoption.

 

 

 

  • Significantly, DD resisted prophylactic injections to prevent further blood clots. The occurrence of the embolism means that any future pregnancy carries an increased risk of stroke and of haemorrhaging

 

 

And then child 5

 

 

  • Child 5: Later in 2012, DD became pregnant again. The pregnancy was once again concealed from the professional agencies (including social workers from the adult and child services) which were endeavouring to work with the parents. The parents withdrew from engagement with professionals, and on occasions refused entry to their home. In mid-July, an unannounced visit by child care social workers was made to the home; BC declined their request to enter. Following protracted negotiations (involving discussion of police attendance to obtain access to DD), BC relented. On entering the property, DD was seen attempting to breast feed a baby (Child 5: female), swaddled in a dirty pillow case soiled with blood. The home was dirty; there was no sign of baby clothes, blankets, bottles, nappies or anything suggesting preparation for a child. DD was evasive when asked where the afterbirth was; there was concern that it may not have been delivered. DD looked unwell. BC handed Child 5 to the social workers, and gave permission to have her examined in hospital.

 

One can understand why any professional involved with DD would be concerned about her pregnancy and anxious to ensure that the baby is not born at home without medical supervision. It appears that DD and BC withdrew from medical and other services during this pregnancy

 

 

  • Between late February and early April, twenty-five social work visits were made to DD and BC’s home. Even allowing for the fact that on occasion DD will undoubtedly have been out, the social workers were not able to obtain access on even a single occasion. Occasionally, DD and BC have been sighted at the windows within the property, but have not responded to knocking at their front door. On one occasion, BC responded to the knocking by telling the visitors (through the locked door) that DD was “not pregnant“; DD was heard shouting in the background.

 

 

 

  • Given the level of concern, and belief in the advancing pregnancy, the Adult social services sought and obtained a warrant under section 135 Mental Health Act 1983 which authorised them to enter, with police presence and if need be by force, DD’s home, and, if thought appropriate, to remove her to a place of safety with a view to making an application in respect of her under Part II of the Mental Health Act 1983. Mr. D told me that there was reasonable cause to suspect that DD (a person believed to be suffering from mental disorder) was being kept otherwise than under proper control.

 

 

 

  • On 8 April 2014, the warrant was executed. On entering the flat that evening (17:00hs), there was an overwhelming smell of cats’ urine; the home was dirty and dingy. DD and BC were initially distressed, but (according to Mr. D and Mrs. C, who were both present) the situation was soon calmed, and DD was conveyed to a mental health unit for full mental and physical assessment. DD co-operated with a physical examination, an ultrasound scan, and blood sampling.

 

 

 

  • Following this assessment, fifteen further attempts were made to see DD at home. On none of those visits did DD or BC answer the door. DD did not attend pre-booked ante-natal appointments on 23 April, or on 21 May 2014; transport had been offered and provided. The letter reminding her of the ante-natal appointment was returned with a message on the envelope ‘return to sender, moved away‘.

 

 

 

  • To add context to this level of ante-natal intervention, NICE (National Institute for Health and Care Excellence) Guidelines recommend nine appointments for a high-risk pregnancy (which this is – see §97(vii) below); by this time, DD had had one appointment, and only (as is apparent from the history above) when she had been removed from her home following court order.

 

 

 

The Trust (ie the hospital and doctors at the hospital) made an application to the Court of Protection for a number of declarations about DD

 

i) DD lacks capacity to litigate in respect of the issues below;

ii) DD lacks capacity to make decisions in respect of whether to undergo a caesarean section and to make decisions generally about her care and treatment in connection with her impending labour, including the place and mode of delivery of her unborn child;

iii) It is in DD’s best interest to undergo a planned caesarean section in hospital with all necessary ancillary treatment;

iv) DD lacks capacity to consent to be subject of an assessment of her capacity to make decisions in relation to contraception (by way of sections 48 or 15 Mental Capacity Act 2005);

v) It is in DD’s best interest to be subject of a one day assessment of her capacity to make decisions about contraception;

vi) The Applicants may take such necessary and proportionate steps to give effect to the best interests declarations above to include, forced entry, restraint and sedation.

 

The Court of Protection were not dealing with, were not asked to deal with, and have no powers to deal with, what would happen to DD’s baby once it was born. The Judge,  Cobb J, simply says this

I exhort the Council to make sure that any application for orders fully engages DD, so that she can be represented by her litigation friend, the Official Solicitor. It is plainly important, in DD’s best interests, that plans for the baby are formulated and presented to her in a way which engages her to the fullest extent.

 

 

The Court assessed DD’s capacity.  (I will set out now, because it is an issue that continues to trouble some practitioners in this field and also campaigners, that although DD was represented through the Official Solicitor, the Official Solicitor had not met with her or taken her views on the issues and did not in effect mount a challenge or defence to those declarations. The Official Solicitor’s role is to make representations to the Court about what they consider to be in DD’s best interests – in some cases that means agreeing or not opposing the declarations sought, in some cases it means a very robust opposition to the declarations sought, but there is no general principle that the Official Solicitor ought to argue against state intervention and FOR autonomy for people like DD)

 

The peculiar issue in relation to capacity was that DD in five sets of care proceedings had been adjudged to have capacity to litigate, and had NOT been represented through the Official Solicitor. That would be fairly unusual in a case where the Court was contemplating surgery against the person’s will

 

  • I am satisfied that “all practicable steps” (section 1(3) MCA 2005) have been taken to help DD to make a decision as to litigation, and mode of delivery, but that such steps have been unsuccessful – not just because of the low level of co-operation, but because she has displayed such rigid and unshakeable thinking (‘mind-blindedness’) about the information provided.

 

 

 

  • Her decision-making is undoubtedly “unwise“, but it is not, in my judgment, just “unwise“; it lacks the essential characteristic of discrimination which only comes when the relevant information is evaluated, and weighed. I am satisfied that in relation to each of the matters under consideration her impairment of mind (essentially attributable to her autistic spectrum disorder, overlaid with her learning disability) prevents her from weighing the information relevant to each decision. While anxious that in the past DD has ostensibly participated (albeit in a limited way) in public law proceedings without any finding of the court as to her capacity to do so (which causes me to reflect yet more carefully on the issue under consideration now) I must consider the issue with regard to this particular piece of litigation (Sheffield Crown Court v E & S – supra).

 

 

 

  • Moreover, on the evidence laid before me, there is reason to believe (section 48) that she lacks capacity in relation to whether to participate in an assessment of her capacity to decide on future contraception.

 

 

 

  • In these conclusions, I am fortified by the fact that the Official Solicitor, on DD’s behalf, does not seek to persuade me otherwise.

 

 

 

  • These conclusions can be drawn as declarations reached pursuant to section 15 Mental Capacity Act 2005, save for the conclusion in relation to capacity to consent to an assessment of decision-making relevant to future contraception, which will be drawn as a declaration under section 48 MCA 2005

 

 

 

The Court then went on to consider, what the best interests of DD required, given that she lacked capacity to make her own decision. The analysis that Cobb J undertakes of the various options for delivery of the child, the pros and cons of each and the balancing exercise is the best of these that I have seen, and I hope that this sort of root-and-branch analysis becomes more widely used in these cases. He reaches the conclusion that caesarean section is the best course of action, and makes the declarations that would allow the hospital to carry out that surgical procedure.

 

We then move to the headline item – in all of the other C-section Court of Protection cases the expectant mother has been in hospital, here she is at home. How is she to be conveyed to hospital?

 

Achieving the admission to hospital: Use of reasonable force & deprivation of liberty

 

  • I am conscious that steps may need to be taken to give effect to the decision which I make, if compelled attendance at hospital is required (for caesarean or induced vaginal delivery) in the face of DD’s objection. The extent of reasonable force, compulsion and/or deprivation of liberty which may become necessary can only be judged in each individual case and by the health professionals.

 

 

 

  • On two recent occasions forcible entry has had to be made to DD’s home in order to achieve some form of assessment: once with the authorisation of the lay justices (section 135 MHA 1983: 8 April 2014) and once pursuant to an order of Pauffley J (section 48 MCA 2005: 19 June 2014).

 

 

 

  • Any physical restraint or deprivation of liberty is a significant interference with DD’s rights under Articles 5 and Article 8 of the ECHR and, in my judgment, as such should only be carried out:

 

 

i) by professionals who have received training in the relevant techniques and who have reviewed the individual plan for DD;

ii) as a last resort and where less restrictive alternatives, such as verbal de-escalation and distraction techniques, have failed and only when it is necessary to do so;

iii) in the least restrictive manner, proportionate to achieving the aim, for the shortest period possible;

iv) in accordance with any agreed Care Plans, Risk Assessments and Court Orders;

 

  • On each previous occasion, after DD’s (and BC’s) understandable initial distress at the intrusion, DD has been calm and co-operative; BC less so. The presence of the police has not aggravated the situation; on the contrary, I was advised by Mr. D that DD sees the police as neutral and therefore helpful in maintaining peace. DD does not see the police as a risk; indeed, it was felt, the presence of police (in fact, uniformed police underline for the concrete thinker the visual confirmation of authority) creates a brake on her anxiety, anger, frustration and fear. The police add a ‘message’ to DD that the situation is ‘serious’ (according to Mr D) and has the effect of calming DD and BC.

 

 

 

  • In fulfilment of the plan as a whole, it is critical that the particular team of trained and briefed professionals is involved.

 

 

 

  • I recognise that sedation may be needed to ensure that DD does not cause herself harm at the time of the transfer to, and in-patient stay, in the hospital. General anaesthesia is likely to be necessary in my judgment to facilitate the caesarean section given the risks to herself if she were to interfere with the surgical procedure, or choose to be non-compliant with localised anaesthetic.

 

 

 

Finally, the Trust were proposing that DD be told of the general plan – that she would be taken to hospital and undergo a C-section, but not detail as to the date. The Judge considered the pros and cons of this here

 

 

  • The Applicants propose that neither DD nor BC should be advised of the date planned for the caesarean procedure, but should be provided with partial information: they are aware of this hearing, and it is proposed that they should be informed of the Applicants’ plan to arrange a caesarean section for her.

 

 

 

  • It should be noted that neither DD nor BC were advised in advance of the date of the localisation scan which took place two weeks ago.

 

 

 

  • There are plainly risks associated with providing DD and BC with full information (i.e. about the planned date), and, in the alternative, providing them with partial information. The professionals consider that the risks associated with providing them with full information are greater given DD’s likely raised stress and anxiety levels as the date approaches; this may have a serious impact on her mental health. This concern is underlined by the fact that she was adamant that she should not have her planned caesarean at the time of the birth of Child 2 until the exact due date.

 

 

 

  • There is a further risk that in advising DD and BC of the date of the caesarean, that they may seek to leave their home, and disappear. This in itself would create risks to DD, in that:

 

 

i) There is no guarantee that the specialist team local to her current home which has been identified to look after DD on the appointed date could be assembled on short notice, once DD and BC have been located;

ii) Health professionals in any new area would be unfamiliar with her situation, and less well equipped to deal with her, and her particular needs;

iii) Managing a safe transition from the community to hospital may be less easy or (if she is located in a public place) dignified.

iv) If she attempts a vaginal delivery at home (particularly any temporary home which is unfamiliar), she may be putting herself at additional risk.

 

  • If DD and BC are given partial information (omitting specific dates) the levels of anxiety are likely to be lessened and DD may have difficulty relating the information to herself given her autism spectrum disorder. This condition may make it difficult for DD to see how the information relates to her until concrete actions take place. Recent experience (8 April and 19 June) has demonstrated that while DD has been initially distressed, this reduces quite quickly and effectively using skilled de-escalation techniques.

 

 

 

  • I acknowledge that giving full information to DD and BC about the plans for the delivery of the baby would most fully observe their Article 8 and Article 6 ECHR rights.

 

 

 

  • However, in my judgment the provision of only partial information (i.e. that the plan is for a caesarean section, but not giving her a date) is a justified interference with her potent Article 8 rights on the facts of this case, as necessary in the interests of her health and the health of her unborn child. Moreover, I am of course satisfied that her Article 6 rights have been observed by her full and effective representation – with the fullest opportunity for her engagement – in this hearing

 

 

 

These cases, as with so much that falls to be decided by High Court judges, are extraordinarily difficult, with there being no perfect answer. Nobody can, or indeed should, feel wholly comfortable with a deeply vulnerable woman being removed from her home by police officers and taken to a hospital to have surgery performed on her against her will; not least because one can see that her prospects of remaining together with the baby are not strong given the previous history. It makes me feel squeamish and uncomfortable. But when one contemplates the alternative – that two parents of such limited abilities try to deal with a home birth unsupervised and a labour that has medical complications, given that they previously tried to use barbecue tongs as forceps and injured child 3’s head during the process, that feels terrible too.  I don’t know how we get these decisions right and do them fairly, but it would be hard for anyone who takes the time to read Cobb J’s judgment carefully to think that he didn’t try his utmost to make this difficult decision fairly.

 

My one caveat is that I think there should be someone in Court who is advocating for non-intervention, and for DD’s autonomy. If the Court don’t consider that DD’s autonomy can outweigh her wider interests and safety, then so be it, but I would feel better if someone was really arguing ‘fearlessly and without favour’ for the State to leave this woman alone. That way, all of the competing options are rigorously argued out and tested. Otherwise, that is left entirely on the shoulders of a Judge – and we may not always be as fortunate to have a Judge like Cobb J, who has the mindset, the knowledge and in this case the time, to vigorously consider the counter arguments that are not being made by the advocates.

Another C-section case

I know that these Court of Protection decisions, authorising a hospital to undertake interventions / treatment without a patient’s consent are of interest to my readers, following on from the case with the Italian mother that attracted considerable notoriety in December 2013.

This one, Re P 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/4581.html

once again involved a mother said to have mental health problems (rather than say a learning difficulty) . The media were present, and save for being able to identify the mother or the Trust, the Judge was amenable to the details of the case being made public.

If you aren’t aware, there is broadly a two stage test – firstly does the patient have capacity to take the decision for themselves (and if they do, they are entitled to make a decision which flies in the face of medical advice or even common sense) – and secondly, if not, the Judge has to apply a best interests decision – taking into account all of the circumstances and what is known about their wishes, what is in the patient’s best interests.

As a matter of particular interest in this case, the Judge raised an issue which I have debated with people before. As you may be aware, the ‘best interests’ decision relates to the patient themselves, not in the health of the child. Unlike Children Act cases where the child’s welfare is paramount, the unborn child has no legal rights to take into account. The decided C-section cases have always been that the operation avoids a risk to the mother’s health as a result of her medical situation, and the fact that a C-section might be the safest way for the child to be born has not, thus far come into the decision-making process.

The debate therefore is whether, when taking into account the mother’s best interests, one can take into account that it would be in her best interests and in accordance with her wishes if the baby were to be delivered safely and well – this being something that any mother would want for her baby.

The Judge decided that it absolutely could be taken into account.

Next, there is no doubt at all that it would be in the best interests of Mrs. P for her baby to be safely delivered. The court cannot be concerned with the interests of the unborn child, but can, and does, have regard to the extremely adverse effect on Mrs. P if unnecessarily her child was not born safely or was born with some avoidable disability as a result of a lack of obstetric care which might have been given. Furthermore, the proposal that the Trust makes offers the best chance of a secure labour and delivery for Mrs. P if it is approached in a planned way rather than awaiting the chance moment.

 

Therefore, although this decision was taken primarily on health grounds for the mother, the door is possibly opened in another case for the decision to be primarily about safely delivering the child.

The other aspects of this case were 1) that the mother was not merely not consenting to the operation (although she did not have capacity to consent), but actively hostile to it. And that was a factor that had to be taken into account when deciding the best interests element and 2) that at the time of the application the mother was described as being calm and lucid, so the declaration sought was to ensure that if things deteriorated during labour, the hospital could take action.

  The current situation is that Mrs. P is in hospital awaiting the arrival of her baby. She is relatively calm and accepting of the idea of being induced as described. However, that may change if she was to become agitated during her labour, as she has been in the recent past. There is a good chance that she will be able to give birth by normal means. That is the outcome which everybody hopes for. However, if that does not happen it is said, and I so find, to be in her interests for emergency measures to be taken for the benefit of her physical and mental health by means, as a last resort, of a Caesarean section.

It might be helpful, given that the reported cases on C-section are somewhat slight on guidance over and above the standard Mental Capacity Act tests, and the St Georges case (suggesting that the patient also ought to be helped by the Hospital to develop understanding to make an informed decision) predates the Mental Capacity Act for one of these cases to be appealed in the future. There’s perhaps not enough weight at present in these judgments as to the nature of the act being authorised and its invasiveness and any sort of  guidance as to how serious the health risks ought to be before one performs the operation on a person who is not in a position to agree to it as a result of mental illness.

(Of course, the reality of these applications are that they are done swiftly, often as an emergency, and that after the C-section is performed, it can’t exactly be undone, so a later appeal is more academic than practical)

It’s clobbering time ! Or not, as it turns out – Italian C-section case, the President’s judgment

 

Thanks to Jerry for tweeting that this was up – I didn’t even know there was an application. Okay, if you have been on a desert island in December – the Sunday Telegraph ran a story about social workers arranging a c-section for an Italian mother who had had a panic attack so they could steal her baby. A few days later, the press reported that Munby LJ (now the President of the Family Division) had called the case in, and demanding that social workers answer for their dreadful actions.

 

Over the course of a few days, we got more of the official judgments published, and one could see that although there were problems here the luridness of the reporting was not perhaps bourne out by the actual facts. (There are legitimate public debates about whether the mother’s representation in these situations is forceful enough against the State’s wishes, whether there should be a higher test for judicial declarations on c-sections, whether the placement order judgment made before Re B, Re B-S et al would now survive if we re-ran the case now, whether the State ought to have a mechanism to get the country that the mother is from to seize the case, and a few other bits and pieces) – but the press driven debate of “Should social workers be able to impose a c-section to snatch a baby” is a non-starter. The answer is an emphatic, no, they shouldn’t. Which is why they don’t.

 

Anyway, the case found its way to the President, ostensibly as a return of the Reporting Restriction Order (see last blog), although it appears that part of the thinking was that the President was about to open up a can of whoop ass on social workers.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4048.html

On 3 December 2013 a national newspaper ran a front page story under the headline ‘EXLAIN WHY YOU SNATHCHED BABY AT BIRTH’. The strapline, ‘Judge’s order to social workers behind forced caesarean’, was elaborated in the accompanying article, which stated that I had “demanded to know why the girl should not be reunited with her mother”. That was simply not so. All I had done was as I have set out above. I had directed no hearing. How could I? And I had given no directions as to the evidence that might be required at some future hearing of an application that had not yet been made. How could I? All I had done was to direct that any further application was to be heard by me. In other words, if any application was made, either in the Court of Protection or in the family court, I would hear it. That was all. Unhappily this canard has been much repeated in the media.

 

What the President does say is that the case raises important principles which are worthy of discussion, and building on his judgment in Re J, considers that transparency and being able to see the judgments and scrutinise them is a vital part of that.

 

    1. In the present case, as typically, a number of competing interests are engaged, protected by Articles 6, 8 and 10 of the Convention. Three competing interests, in particular, have to be considered here. I take them in no particular order.

 

    1. The public has an interest in knowing and discussing what has been done in this case, both in the Court of Protection and in the Chelmsford County Court. Given the circumstances of the case and the extreme gravity of the issues which here confronted the courts – whether to order an involuntary caesarean section and whether to place a child for adoption despite the protests of the mother – it is hard to imagine a case which more obviously and compellingly requires that public debate be free and unrestricted.

 

    1. The mother has an equally obvious and compelling claim to be allowed to tell her story to the world. I repeat what I have on previous occasions (see most recently Re J, para 36) about the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system and likewise being able to criticise local authorities and others. I repeat what I said last week (Re P [2013] EWHC 4037 (Fam), para 4):

 

“The mother wishes to complain publicly about the way in which the courts in this country have handled her and her daughter. The court should be very slow indeed before preventing a parent doing what the mother wishes to do in the present case.”

If ever there was a case in which that right should not be curtailed it is surely this case. To deny this mother in the circumstances of this case the right to speak out – and, I emphasise, to speak out, if this is her wish, using her own name and displaying her own image – would be affront not merely to the law but also, surely, to any remotely acceptable concept of human dignity and, indeed, humanity itself.

    1. P also, it should go without saying, has an equally compelling claim to privacy and anonymity.

 

  1. How then, in the final analysis, is the court to balance these competing demands?

 

The Judge defends, to an extent, some of the inaccurate and tendentious reporting

 

    1. Before parting from the case there are two points that require to be addressed with honesty and candour. Both relate to the fact that, when this story first ‘broke’ on 1 December 2013, none of the relevant information was in the public domain in this country.

 

    1. The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?

 

  1. The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of |High Court Judges; it applies also to the judgments of Circuit Judges.

 

It is a reasonable point. Whilst the placement order hearing had little of public import until the case broke, my view is that every Court of Protection declaration judgment ought to be published in anonymised form. Looking at the law reports, there are such few c-section cases reported since the introduction of the Mental Capacity Act, I think all of them ought to be published as a matter of routine – Mostyn J’s judgment was important and should have been published and available even before this furore. If it had been, it is likely that when the story broke, factual inaccuracies could have been put right (or heaven forbid, the journalists involved might even have tried to find the judgments)

I also happen to believe that any family court application for a Reporting Restriction Order should be published in such anonymised form as is necessary to protect the individuals privacy. We can’t have family law becoming like super-injunctions, where we don’t get told that there is something we can’t know.  (The RROs in this case were put up very promptly, which does the Court service and the judges involved a lot of credit)

 

Munby does have a word of caution for the Press, however

 

think I should repeat what I said earlier this year when addressing the Annual Conference of the Society of Editors:

 

“dare I suggest that the media should remember the great C P Scott’s famous aphorism that “Comment is free, but facts are sacred.” I recently gave a judgment that received coverage in the media. A legal commentator* suggested that readers might wish to compare and contrast what I had actually said with how it was reported: “Compare. And contrast … And weep.””

 

*Waves at Pink Tape

 

 

What IS the Court of Protection?

This is intended to be a beginner’s guide to the Court of Protection, not exclusively intended for lawyers. There are, in fact, some journalists who might benefit from it.  You may have been reading about the Italian woman who underwent a ceasarean section without her consent, and want to know how decisions like this are supposed to be made and what powers the Courts have.

To be fair to the national press, I’ve just had to expand 3000 words to absolutely race through even the basics of the Court of Protection, without even getting into the nuts and bolts of this case, so one can see why they end up saying “A secret Court” and leave it at that.   Perhaps in future, this piece might be a handy link or source for anyone who wants to understand the basics of  how that secret court is meant to operate.

I in no sense think that the Court of Protection is flawless or perfect, and it is perfectly possible for very bad decisions to be made, but at least understanding the nuts and bolts of the fact that decisions are made by a Judge, with a lot of tests and guidance might help people avoid some of the more dreadful factual errors that came about with some of the recent reporting. Otherwise you end up endlessly debating the rights and wrongs of a set of abhorrent things that DIDN’T actually happen, as opposed to very real and important rights and wrongs of a set of very troubling things that DID.

[It is like determining US and UK foreign policy post 9-11 based on Kay Burley's account on Sky News on the day that "The entire Eastern Seaboard of the United States has been decimated by terrorist attacks" rather than what actually happened, which was awful and significant enough without lurid inaccuracies *]

What is the Court of Protection, and is is a secret court?

The Court of Protection is a branch of the English and Welsh court system, dealing with cases involving people who either do not have capacity to make decisions about certain things for themselves, or to determine whether in fact they do have that capacity. The Court of Protection as we now know it was set up by the Mental Capacity Act 2005, building on the Court of Protection which had previously dealt with financial matters  (Thanks to @barbararich for pointing out my original inacuracy, now fixed, and for doing so nicely).

It is not open to the public. The Press have to make an application if they want to attend the hearing. Some decisions of the Court of Protection (judgments) are made public on law sites like Bailii

http://www.bailii.org/ew/cases/EWHC/COP/

if they contain important points of law or principles which might apply to other cases or are in the public interest, but the day to day decisions are not made public  (yet – the President of the Family Division has indicated that he intends to bring about publication as a matter of course of all decisions of the family courts and probably the Court of Protection too).  When those decisions are made public, the identity of the person concerned is usually anonymised.   (There are certain, though rare cases, where the identity is revealed, such as the Mark Nearey case http://www.independent.co.uk/news/people/profiles/mark-neary-they-didnt-understand-steven-they-saw-me-as-a-fly-in-the-ointment-2295565.html )

So the Court of Protection is certainly secretive – there are arguments that this is done to protect the vulnerable people concerned, but the President of the Family Division takes the view that the counter argument that without exposing their decisions to public scrutiny there’s a risk that the public lose confidence in the work they do and that hyperbolae is taken as gospel  (he would seem, from events this week, to be right) and it is almost irresistable now that judgments from the Court of Protection will be made routinely available, and probably that the Press attendance at Court of Protection hearings will become the default position (with the Court having to given reasons why they SHOULDN’T be there)

Why did the Court of Protection come about?

It was introduced by the UK Parliament as a result of a case that went to the European Court of Human Rights, involving a man who is known as “L”  (the case is also well known as the “Bournwood” case, after the Trust involved). L had been a day patient at a centre, and lived normally with a family. He did not have capacity to make decisions for himself, but was not mentally ill or dangerous. One day he had an episode at the centre and when his family came to collect him, they were told that he had to stay at the centre. Now, if L had been detained under the Mental Health Act, his family would have had all sorts of legal safeguards and abilities to challenge his detention. Equally, if L had had the capacity to say to the unit “I want to go home” they would have had to let him, but L fell between these two situations, and there was no proper mechanism. Many commenters and professionals working with vulnerable adults felt that it was inherently wrong that someone like L could be detained for months or years with no legal safeguards, just because he wasn’t in a position to object. The ECHR agreed.

At the same time, Parliament brought into one statute, legal provisions for some decisions that the High Court had historically made under their Inherent Jurisdiction  (Inherent Jurisdiction would require a whole other beginners guide, but if you just read Inherent Jurisdiction as “High Court superpowers” you won’t go far wrong) – for example deciding whether doctors could carry out surgery on a patient who was refusing it, dealing with marriages where people had no ability to understand the marriage vows, protecting the finances of vulnerable people, and wrapped it all up into one statute.

The thinking was to give protection and safeguards for the most vulnerable people in society, those who are not able to look out for their own interests.  (Many commenters believe that the MCA began with those noble intentions but hasn’t in practice delivered on them)

Who brings cases to the Court of Protection ?

The cases are normally brought by one of these four groups (though others are possible) : –  the health trust whose doctors are treating the person, the care home who is providing care for the person, the Local Authority who are providing services for the person, or on behalf of the person or their family.

How does the Court decide whether a person has capacity?

The Mental Capacity Act sets out a test as to the REASON why the person lacks capacity

Section 2

(1)For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)It does not matter whether the impairment or disturbance is permanent or temporary.

And then sets out a test for deciding WHETHER  a person lacks capacity

Section 3 Inability to make decisions

(1)For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a)to understand the information relevant to the decision,

(b)to retain that information,

(c)to use or weigh that information as part of the process of making the decision, or

(d)to communicate his decision (whether by talking, using sign language or any other means).

(2)A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a)deciding one way or another, or

(b)failing to make the decision.

It is VERY VERY important to note that a person is entitled in law to make a bad decision, an unwise decision, a daft decision, a decision that no other person would take; AS LONG as they understand the situation they are making the decision about.   (For example, Carla out of Corrie is entitled to marry Peter Barlow even though he is a love-rat with a history of bigamy, an alcoholic and is trying it on with Tina from the Rovers, even though many people would think she was foolish to do so. But if she does not understand that marriage is the union of one man and one woman (currently) and is intended to be for life although it can be ended through divorce, then she can’t marry him.  Just as, if he drinks and is so intoxicated that he can’t understand that, he can’t legally enter into a marriage contract  – but that is PRETTY drunk)

It is also important to note that just because a person lacks capacity to make one particular decision, it doesn’t mean that they lack capacity to make any sort of decision. Some decisions are more complicated to weigh up than others and need more capacity to understand.  Over a period of time, the Court of Protection has decided cases and set up guidelines for what sort of understanding a person has to have for certain decisions.

For example, classically, in order for a person to have the capacity to consent to sexual intercourse they have to be able to understand the following three things :-

(i) The physical mechanical act

(ii) That pregnancy can occur and what pregnancy is  (and contraception)

(iii) that you can get diseases through sex (and how to avoid that)

The person doesn’t have to understand the emotional implications (that you could get heart-broken or sad, or that the other person might) or be able to weigh up who is a good person to have sex with and who is not, just those three factors.    (For homosexual sex, the second factor is taken out)

You will see from the legal test that the person has to be helped, with explanations suitable for them, to reach the point of understanding the issues so that they can make the decision for themselves. The law WANTS people to make the decision for themselves, and it is also worth noting that the starting point is that every person HAS capacity unless evidence is provided to the contrary.

If the Court decide that a person lacks capacity, what then?

The Court then have to make what is called a “best interests” decision.  That means deciding what is in the best interests of the person. That might be what the State (the doctors or social workers) say is best, it might be what the person themselves is saying or showing that they want, or it might be something else entirely.

The legal test is set out in the Mental Capacity Act

section 4 Best interests

(1)In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of—

(a)the person’s age or appearance, or

(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2)The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3)He must consider—

(a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b)if it appears likely that he will, when that is likely to be.

(4)He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5)Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6)He must consider, so far as is reasonably ascertainable—

(a)the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)the other factors that he would be likely to consider if he were able to do so.

(7)He must take into account, if it is practicable and appropriate to consult them, the views of—

(a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b)anyone engaged in caring for the person or interested in his welfare,

(c)any donee of a lasting power of attorney granted by the person, and

(d)any deputy appointed for the person by the court,

as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).

(8)The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—

(a)are exercisable under a lasting power of attorney, or

(b)are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

(9)In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

(10)“Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11)“Relevant circumstances” are those—

(a)of which the person making the determination is aware, and

(b)which it would be reasonable to regard as relevant.

You can see that the Court are obliged to consider and take into account all that is known about what the person themselves wants, or would want, or has previously expressed about wanting (remember that a person might only temporarily lack capacity, so the Court have to take account of anything the person said or showed about the issue in the past), and also has to take into account the views of anyone who cares for the person or is interested in their welfare.

This is the difficult bit, and in most Court of Protection cases, the majority of the judgment is spent on the Judge deciding what is in the ‘best interests’ of the patient to do.  Sometimes that accords with what the patient is saying or showing they want, sometimes it does not.  It is the hardest part of the exercise, and to an extent, I agree with Lucy Series from The Small Places blog about capacity and mental health :-

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… 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. “

How does the Court ensure that it is making the decision that is right for the person, and not the decision that “seems” the right thing to do from a paternalistic “The State knows best” approach.  The Court of Protection at essence is a referee between the tension of “the State needs to decide what is best for vulnerable people” and “people should be free of State interference and make their own decisions”.  It is not easy, and it can seem to those outside that the Court of Protection doesn’t always get things right.

It is certainly a new system (in terms of law, 8 years of operation is a baby) and it would be astonishing if mistakes weren’t being made and lessons were there to be learned. So it is important to scrutinise the decisions and for the Court of Protection to be responsive and reflective to changes both in law and attitudes in society. Twenty years ago, a man saying that he intended to marry another man would have seemed peculiar to most of society, now a Conservative Prime Minister is driving that change.

But, if a person doesn’t have capacity to make a decision, how do they fight the case?

Well, this is the million dollar question. Remember firstly that just because a person lacks capacity to make one decision doesn’t mean that they lack capacity to make all decisions. So it is possible for a person to be able to instruct his lawyers to fight the case, whilst the Court decides on the real issue in question. But very often the issue of capacity will also affect the person’s capacity to instruct a solicitor.  There is firm guidance on the legal test to be able to instruct a solicitor, and where a person doesn’t meet that test, they can’t give instructions directly to a solicitor.

[A person who HAS capacity is able to tell their solicitor to do something really foolish or unwise or downright dumb - i.e Carla can tell her solicitor to put all of her assets in Peter Barlow's sole name and to sign a pre-nup saying that she has no claim on any of what is now his property. That's stupid, but if she understands the nature of what she is doing, she can do it.]

What happens ordinarily then is that an agency known as the Official Solicitor is appointed by the Court   (not by the social worker or Trust, as certain national newspapers seem to think) and the Official Solicitor will decide how the case is to be run on the persons behalf  – that might be to fight the case every inch of the way, it might be to offer no resistance, it might be to be neutral and say that the doctors or social workers have to prove their case, or it might be that some parts of the case are challenged very hard and others aren’t. It is up to the Official Solicitor)

Now, one can see where that causes a problem. The person lacks capacity, say, to make an informed decision that if surgeons don’t cut off their foot they will die of gangrene, but is very vocally saying “Don’t cut off my foot, I would rather die”.   The doctors will be able to tell their lawyers to argue all the reasons why the surgery will happen. The Judge knows what the person is saying and has to take it into account. But there could very well be no lawyer who actually argues to the Court all of the reasons why the surgery SHOULDN’T happen, they will only do that if the Official Solicitor decides that it is in the person’s best interests to fight the case.

(You may see that you end up with both the Official Solicitor and the Court making decisions about what each of them CONCLUDES is in the person’s best interests to do and that can appear to be a blurring of roles.  When a lawyer acts for someone who has capacity, she gives them ADVICE about what is in their best interests, often very strong advice, but where a person says “I hear all that, but I still want to do X instead” that lawyer goes into Court and argues fearlessly and without favour for X.  You end up with, here, a situation where the most vulnerable people in society get less protection from the lawyer charged with representing them, than they would if they had capacity)

If you want to know more about the decision of the Court of Protection in ceasarean section cases, I heartily recommend this piece , which focuses on the legal side and the tests to be met

http://thesmallplaces.blogspot.co.uk/2013/12/more-questions-than-answers-on-forced.html#more

and this piece

http://www.birthrights.org.uk/2013/12/views-on-the-forced-cesarean-judgment/

Which looks at it from the perspective of the pregnant mother

* She actually did say that. And what better reason do I need to crowbar in a “Who said this, Kay Burley or Ron Burgundy” quiz?

http://www.huffingtonpost.co.uk/2012/03/29/anchorman-2-ron-burgundy-kay-burley-quiz_n_1387332.html

Stay classy, internet

the judgment from court of protection in the caesarean section case

 

This is Mostyn J’s decision (see the two Untimely Ripped posts, and most of the press since Sunday if you don’t know the background)

 

http://www.judiciary.gov.uk/media/judgments/2013/re-aa-approved-judgement

 

I think the note from Mostyn J is important to read

 

NOTE BY MR JUSTICE MOSTYN (4 December 2013)
Although no-one has sought to appeal the judgment dated 23 August 2012 during the last 15 months, or to have it transcribed for any other purpose, I have decided to authorise its release together with
the verbatim transcript of the proceedings and the order made so as to inform and clarify recent public comments about this case.
It will be seen that the application to me was not made by the local authority or social workers.
Rather, it was an urgent application first made at 16:16 on 23 August 2012 by the NHS Trust, supported by the clear evidence of a consultant obstetrician and the patient’s
own treating consultant psychiatrist, seeking a declaration and order that it would be in the medical best interests of this seriously mentally ill and incapacitated patient, who had undergone
two previous elective caesarean sections, to have this birth, the due date of which was imminent (she was 39 weeks pregnant), in the same manner.
The patient was represented by the Official Solicitor who instructed a Queen’s Counsel on her behalf. He did not seek an adjournment and did not oppose the application, agreeing that the
proposed delivery by caesarean section was in the best interests of the patient herself who risked uterine rupture with a natural vaginal birth. I agreed that the medical evidence was clear and,
applying binding authority from the Court of Appeal concerning cases of this nature, as well as the express terms of the Mental Capacity Act 2005, made the orders and declarations that were sought.
Although I emphasised that the Court of Protection had no jurisdiction over the unborn baby, I offered advice to the local authority (which were not a party to or represented in the proceedings, or
present at the hearing) that it would be heavy-handed to invite the police to take the baby following the birth using powers under section 46 of the Children Act 1989. Instead, following the birth there
should be an application for an interim care order at the hearing of which the incapacitated mother could be represented by her litigation friend, the Official Solicitor
Okay, there’s quite a lot in that, so let’s break it down :-
1. The application for the Court to rule that the surgeons could undertake a C-section was made by the health authority, not by social workers
2. Social workers weren’t a party to the proceedings or represented
3. The mother was represented through the Official Solicitor and by Queen’s Counsel
4. The Court heard evidence that the mother was seriously mentally unwell and incapacitated  (not quite Brooker’s “panic attack”)
5. The decision about the C-section was on the basis of very clear medical evidence that it would prevent a uterine rupture
6. Mostyn J gave advice to be communicated to the local authority social workers, that any decision about removal of the baby should take place at a Court hearing with the mother represented through the Official Solicitor
 rather than the police exercising their powers to remove for a period of 72 hours and place the baby in the care of social workers
7. The decision about the C-section was made lawfully, taking the statutory matters into account and following the clear principles already established in English law   (i.e there isn’t anything dramatically new about what happened here, in relation to the Court of Protection decision)
Now, there is still a public debate here about point 3, and I am sure that John Hemming MP would still wish to have it. Although the mother was represented through the Official Solicitor and had a very very experienced and senior barrister representing her; as the mother did not have capacity to instruct a solicitor and tell them what she thought about the operation, the Official Solicitor did not oppose the application.  (I know that Mr Hemming MP taes the view that this procedure is unfair for vulnerable people and there is a disconnection between the mother and those who are purportedly representing her. It is a tricky one, and worthy of further debate. However, what was done here is the usual process with a person lacking capacity – even slightly more so, given that Queen’s Counsel was instructed.
What there ISN’T here, is the smoking gun that the Sunday Telegraph and others following in their wake were hinting at (or indeed expressly saying) that the C-section had been done at the behest of social workers to facilitate an easier time of removing the child into care.  Let’s see if the Press correct that.
There is STILL a genuine debate to be had about the circumstances in which the child was removed – but the Local Authority made an application to the Court (as Mostyn J had advised) and it seems very likely that the mother was represented through the Official Solicitor for that hearing (they already being seized of the situation).  Let’s wait and see what that judgment says – of the three judgments, that is probably the pivotal one, since it will illuminate whether the evidence and the risks involved really required this baby to be removed whilst mother was unconscious and recovering from her operation.
(I may come back to the judgment, but wanted to get it up so that people could read it for themselves)

 

 

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