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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)


I think the note from Mostyn J is important to read


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)




About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

75 responses

  1. Thanks for the welcome clarification but what intrigues me is the mother’s psychological degeneration here.

    Her perceived incapacity seems to be a direct consequence of being forcibly sectioned then detained long-term against her will, mention of which seems to be conspicuously absent – to have been abbreviated to nothing in the proceedings to date – yet has rendered HER and her connected unborn child’s family human rights invisible at a time of crucial decision-making.

    Given that having effective legal representation is pivotal to a right to a fair trial, If the Official Solicitor failed to raise this most basic argument on behalf of his client, then WHOSE interest did he, in fact, represent?

    Arguably he was batting for the OTHER SIDE – little more than a rubber-stamp for the NHS Trust!!

  2. Especially, given her rapid return to good health on being released and allowed back home!

    Some of these Judges and other practitioners really should try walking a mile in their subject’s shoes before signing-off on such draconian reports and Orders!

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

  4. I am concerned that the Italian professionals treating the Mothers condition were not sought to express their View, Mother, has not disputed that her mental health illness is Bi-Polar, if then that is the case treating someone following a wrong diagnosis would go a long way to explain the mothers erratic characteristics, Bi-Polar is not a Psychotic Disorder

    • Yes, it can be and I speak as someone diagnosed with bipolar disorder.

    • How do you know they were not? There are clear indications that extensive reports from the Italian professionals were available to the court considering the adoption, and it is very difficult to believe that the medics treating the mother would have taken no steps to obtain her medical records in the 5 weeks before the child’s birth.

  5. The major obstetric risk which seems to have influenced the judge, was the risk of rupture of the womb after two previous caesarean sections. We do not know what the reason for the previous sections were, which is one influencing factor when mothers consider their options. We know of many women who go on to have normal births – including home births – after two previous caesareans. Labour can be careful monitored to check for separation of the scar (rarely as dramatiic as “rupture”) and t he risk is much reduced if induction of labour is avoided. However, every additional caesarean increases the risk of the mother having the placenta embedded in the uterus and massive maternal haemorrhage – increasingly a cause of maternal death – and emergency hysterectomy, which in our experience has iprofoundly damaging effects on the mother’s psyche. I wonder whether the judge considered both risks?

    Jean Robinson, President, Association for Improvements in the Maternity Services

    • You can see from the published transcript that the judge considered barely anything. It comes across as a pre-ordained rubber stamp from the off.

      • Ashamed to be British

        It can ONLY have been a rubber stamp job, the mother wasn’t even aware they were in court, there is no other way of describing this

  6. The probability of uterine rupture was apparently nearly 1%. Thus there was a greater than 99% probability that it would not rupture.

    The health trust and local authority appear to have been one and the same.

    Was the order signed and sealed?

    Did the LA hold back or were the police in attendance at the birth?

    • The police were not in attendance.

      As Jean Robinson has pointed out, uterine rupture involves a serious risk of maternal death, to say nothing of the danger to the child. A friend of mine had one after only one Caesarian and came close to death; she was also extremely weak and in major pain for weeks and was wholly unable to look after her baby. If you were given the choice of risking that against having a low risk elective Caesarian, can you seriously say that you would take the risk? Bear in mind that this woman had apparently consented to two Caesarians previously and does not suggest that she was desperate to have a normal delivery.

      • akismet-eff813566684eca1ae505ee074c9efbf

        But given her comments it does seem she wanted to give birth on her terms which seems a perfectly natural thing. Something I think its reasonable any mother would want to do. Perhaps she had already found the past caesareans traumatic and never wanted to go through that again for example. I don’t think you can really get away with saying well she had two before so what’s one more? I think you do her a disservice in that respect.

    • Just noticed that reference to the health trust and local authority being one and the same. Obviously they were not. Why do you think the order would not have been sealed? It is clear that it was a legally valid order, not least because the mother’s own lawyers haven’t challenged it.

      • Ashamed to be British

        Sorry to seem rude, but I’ve just laughed at everything you’ve said, do your research on your own questions, then come back and talk, you have no clue

      • No, that is rude. People are entitled to have different views here. Nobody is a bad person or a fool for holding a different view. Play nice.

      • Ashamed to be British

        Hey I was, I started my sentenvce with an apology etc, the troubles we have with no tone of voice or facial expression eh?
        If only the Internetz would provide such things, I wouldn’t have found the poster to be ill informed and prickly 😉

  7. I am not a barrister, nor indeed do I have any legal training or qualifications, however, a number of thoughts occur to me on reading the Court of Protection order and transcript:

    1. Within the first few paragraphs there are several apologies for the state of the paperwork :

    “and indeed I apologise immediately”

    “Oh dear. I apologise”

    “My Lord, I do apologise.”

    “My Lord, again I apologise for the state of the evidence.”

    This application and hearing was at short notice, but it does worry me when I find that the professionals have not properly prepared the case, and my experience, sadly, is that this does happen more regularly than we would like to believe.

    2. “Dr. Spencer has provided a very short witness statement which is not before you at the moment simply because it was not able to be signed. I understand he annotated his witness statement but did not change very much the substance of it.” There is no signed witness statement, it is “understood” that the annotations do dot alter it much …. this seems a dangerous assumption and I would personally have wanted to see proof. It is not clear to me whether indeed the statement handed to the judge and then the Official Solicitor was indeed this statement, annotated and signed, or not.

    3. Again, re. the other children “My Lord, that is as I understand the position.” – UNDERSTAND – again rather than proof or evidence. At least there was no lie and the barrister gave an honest answer, always preferable, but there is no test being placed upon it and indeed the understanding MAY not be true.

    4. There are 2 clear and separate issues, firstly the order for the delivery and secondly the subsequent care of the baby. The Court of Protection hearing was clearly concerned about the mother’s health and well-being (her best interests) and it would appear that the Caesarean was necessary. However, why was it necessary for this hearing to be held in secret? Transparency in the courts does not mean loss of anonymity. It is only now 15 months later that this is coming to light. In spite of this hearing being about the Caesarean requested by the Health Service, it is evident that discussions are already being held in the courts regarding the care of the baby. Further to this, it is of concern that Essex County Council have (rather belatedly) applied for a reporting restriction order but without notifying the press that they are doing so – this seems to me to be legally incorrect, i.e. they need to put the press on notice that the application is being made. 2) Although this case is about the safer delivery of the baby, the judge mentions “She has been expressing the view how much she wants to hold the baby.” If she is able to express such desires it concerns me that she has not been able to express opinions over the birth, The judge raises the point that “she is not going to know about this order, is she?” – so the decision is made that the substance of the order will be communicated to the mother afer the operation. After which if she disagrees she can apply to discharge it. This is the part which loses me … what can she apply to discharge as the order has already been executed ? If she applies successfully to discharge the order does this then affect subsequent proceedings regarding the care of the child ? As I say I am not a lawyer.

    • Ashamed to be British

      Jerry and I had this conversation yesterday, you are quite right, there seems to be a lot of very flaky, wishy washy, “it seems. perhaps, maybe’s and Oh dears” which is not good enough considering the seriousness of the situation.

      We have a midwife on this thread, who has explained the dangers and non dangers (if that’s grammatically correct) the hospital would have known the same

      It IS as I repeat, all about the rubber stamp, once they have a child in care, it’s almost impossible for the parent to get them back, it’s easier (although no mean feat) to keep them out in the first place

  8. Initially I was not critical of this decision, because I did not know the reasoning. I am now critical because I happen to have spoken to the mother unlike mostyn j.

    • Should we conclude you are no longer critical of the outcome and reasoning, merely the process? Are you actually saying that if someone had wheeled in a woman who was 39 weeks pregnant you would be OK with everything?

      If you are still critical of the outcome (as opposed the process), can you highlight which parts of the judge’s reasoning do you disagree with?

      I’m quite curious as to what the mother is saying—not so much about the policy or the overall outcome but about (on questions like if she) does she say he did have capacity in August to litigate (and, as a species of that, what are her views on whether she was suffering from the psychiatric conditions that are alleged in the judgment) and make decisions re a C-Section? Equally, does she actually say she would have refused the C-Section?

      It is all very well to make sweeping statements about social workers snatching babies from wombs and all that business but it would, in my view, be far more helpful to engage in the really fine detail.

      • There is a difficulty when a decision made by someone for good reasons when they have capacity is changed by a judicial decision (or any other decision) when they don’t have capacity although the relevant circumstances have not changed.

        What was presented to Mostyn orally was in fact wrong in part and Jean Robinson’s points are important to be considered. However, I need the mother’s permission before I write any further details about her reasoning.

      • “However, I need the mother’s permission before I write any further details about her reasoning.”

        You’ve summed it up there in a sentence there, John. We both know that permission will never be forthcoming.

        When you have some facts that support your narrative—the ‘social workers are power crazed, evil megalomaniacs’ that seemed to kick off after the events in ’05—you’re the first to publish.

        When anyone asks for facts that might undermine your argument you’re suddenly very enthusiastic to respect the privacy of your sources.

        The irony is that the mere fact that this mother might not have had capacity, that she it might have been in her best interests to have the c-section, that the child was likely to suffer significant harm attributable to the care being given to him/her not being what it would be reasonable to expect a parent to give, that the child’s welfare may have actually demanded adoption and that nothing else would do and any of that, doesn’t actually detract from the fact that the principles of general application may not be the right principles.

      • Ashamed to be British

        Adoption should always be the last resort, in this case it seems, it wasn’t.
        Social Workers who are hell bent on getting a child, will rule out everyone and anyone who comes forward to care for the child, again, on ‘future risk’ flimsy excuses and all done in secrecy, it would be interesting to hear from the family as to what it was about them that just would not do
        The LA wanted that child and weren’t going to stop at anything to get it

    • Ashamed to be British

      I know you take a battering John, but i for one am very grateful to you, for many reasons, mainly for some of my parents you have personally backed. You’re getting through, keep going
      with regards

    • Dear John,

      I am genuinely interested in your take on this, I am not trying to be provocative or inflammatory or tricksy, as there are times when I share your disquiet that occasionally with an Official Solicitor being involved there ends up with a court full of people making judgments about what is in a person’s best interests and nobody actually advocating on their behalf.

      So, when a person is assessed as lacking capacity to instruct a solicitor and conduct litigation, what do you feel the system should be?

      (a) The present one, where the Official Solicitor makes representations based on what they consider to be in the best interests of the person (although that may be contrary to what the person is expressing that they want)

      (b) There is an Official Solicitor, but they should always advocate for what the persons expressed wishes are (or in a situation where there aren’t expressed wishes should advocate AGAINST State involvement, i.e resisting any application and outlining properly the reasons why such involvement would be wrong)

      (c) The Court always look to having the person represented through a person selected by the person, or if the person isn’t a position to choose someone, use the nearest relative system of the mental health act (i.e there is a prescribed formula of family relationships and one starts at what would be the highest/closest relationship), and they instruct the solicitor and decide what case is to be put

      (d) Actually just get rid of the notion of capacity, and have the person tell the solicitor what they want to happen, and the solicitor argues it without fear or favour, as happens with other clients. (I.e the person doesn’t have to understand the Court process at all, but they have to understand that the case is going to court and they can choose one of x options as to what the solicitor will argue for, even if they happen to be likely to choose unwisely or don’t understand the pros and cons of the options)

      (e) option (d) above, as long as the person has some concept of what is happening and if not, (c)

      For what it is worth, I am happier with (b) than with (a). I have had cases where a parent was clearly not capable of giving instructions but WAS able to articulate that they wanted their child, and in that sort of case, I think the arguments ought to be put fearlessly on their behalf. Sometimes they are through the Official Solicitor, but not always.

      I think it helps, in this case, to have the transcript of what was said at Court, as one can see that the QC instructed by the Official Solicitor had mother’s best interests at heart in terms of ensuring that it would be a Court, rather than the police or social workers who made a decision about removal, but it is also clear that there was limited representation about either capacity or not undertaking the operation.

      It very well may have been that the decision was the same, but one would have more confidence in it had the Judge had advocates representing both the pros AND the cons of the declaration sought, rather than the pros and no opposition.

      I think that whilst others agenda on this one might be pure social work bashing or link-bait, your interest is primarily in whether our system for representing people without capacity properly safeguards them against what can be very serious orders sought by the State. Whilst those orders are ultimately made by a Judge, few would doubt that the deliberation by the Judge is more robust if the arguments are tested properly by representations being made for and against.

      • Luicy Series has written about countries where the issue of legal capacity is being addressed, including ones where there is a view that no incapacitated person should be denied legal capacity (European Disability Rights perspectives), with their being given the right to choose someone they want to act / speak for them in conjunction with themselves.

        The MCA makes people effectively non persons with rights contingent on the ‘powers to be’ giving them any rights, even when they could with asistance assert well rights others enjoy.

        The MCA and CoP and similar have spawned a vast employment industry for a host of different professions to act, so hardly would be expected to act to give legal rights to the incapacitated. Other countries are being less primitive and coercive/ patronising in how they are trying to look at legal capacity for those who have difficulty in this area.

      • Dear Edna,

        Lucy’s piece is indeed excellent, and I would recommend it to anyone who is interested in how the Court of Protection deals with cases of this type. Lucy makes some wonderful points, which it seems chime with your view and indeed mine, about whether our Mental Capacity Act system is really just a patrician way of the State taking autonomy away from vulnerable people.

        Whilst I think Booker did this particular mother no favours with his lurid and inaccurate reporting, there are genuine issues here over the interaction between State and individual, and in particular whether people lacking capacity are robustly represented through our current system of Official Solicitor (see my earlier discussion with John Hemming – we do both share the view that the patient’s voice is not getting heard)

        I will add this link – it is very critical of the decision, but it makes that criticism without lurid sensationalism, and is very well put together

      • Thanks for this link –

        I’m not going to repeat the article but basically it sums up all the issues I have with this case and am disturbed at the fact that Locke seemed to simply roll over and accept it. With a 1% risk I would expect him to at least do some independent investigation as to whether it really was as necessary as it was being made out to be. That’s a risk I would be willing to take to avoid a CS (or any medical procedure) given the potential problems that can occur.

        While I can understand the case was hastily put together I find it bizarre given the length of time she was in the trusts care. Heavily pregnant women are predictable in one way at least- they will give birth at some point so why was this left so late?

        Over all if I presented a moot the same way this actual case was presented in court the judge would bollock me about the room for not presenting any authority adequately, not knowing my cases (Burnham’s surprise that the child being outwith the courts protection for example)

        Overall I don’t think this woman was adequately defended and as a result it has done her no favours. If if happened to me I think it would honestly destroy me so I am not surprised she was a mess after wards when she was despatched from the country post birth.

        I also have concerns about Essex council still given that the intention to take P was mentioned before the birth had even taken place. That to me seems jumping the gun a bit and if a judge has to weigh in and say something is heavy handed then thats not a good indicator of good practice.

    • akismet-eff813566684eca1ae505ee074c9efbf

      While I do not like the way you have done about this, I do not think we would be in the position we are in now unless you had gone overboard.That doesn’t make me happy I must say as I like to believe there is a rational response to most things. I certainly do not like your implication that it was though that AA was “too stupid” to understand when it seems she is a perfectly intelligent woman who requires help to keep her condition under control. I do feel you are right that in cases like this -where serious surgery is being considered without the consent of the person in question – then a judge has a duty to meet said person and actually speak to them not just go on the basis of what is given to them. That’s why the St George case was so important in my eyes. My preference however is that if a person refuses to consent even if they are suffering a mental condition then it must be respected even if it does mean their potential death or injury

      So there even a broken clock is right twice a day.

  9. Ashamed to be British

    Thanks for the background, although I’d only believe 1% of what any of them say

    Rubber stamping – ’nuff said

  10. Interesting how the NHS trust concerned acted in order to UNDERMINE the mother’s consent as it still is a ‘public authority’ for the purposes of the Human Rights Act and so can only act proportionally, given the primacy of ‘respect’ for established family life which must balanced against risk of possible future harm, albeit only surmised – same goes for the Official Solicitor.

    Smacks to me of acting ultra vires as well as undue influence, through and through. Time for a judicial review, albeit belatedly, as well as a HRA challenge.

    Even more telling are the obfuscations of those who spring to USURP INNOCENCE from the real victims of this tragedy – the poor child about to be irreversibly adopted, it’s bereft mother and birth family ALL BECAUSE OF THE MISCHIEF THESE USURPERS HAVE CAUSED by their EXAGGERATIONS and now obfuscations.

    Funny thing is … it’s so easy to spot those who know which side their bread’s buttered on!

  11. Pingback: Update on the Essex C-Section case :

  12. Major squirming here to try and exonerate social services which, I suspect, is a bit cloak and daggers – they were clearly playing a part here. Her Italian solicitor has stated this evening on BBC Essex that her mental illness was at worst ‘minor’. This still also doesn not explain the forced repatriation of the child and the forced adoption. Best result here is give the child back before the social workers are exposed. Social media is swarming with their names.

    • It really is very clear indeed that the mental illness was not “minor”. She had had three previous hospitalisations when she stopped taking medication, and she admits she had also stopped taking them on this occasion. She was manic and suffering from intrusive delusions, and her older child had been traumatised as a result of seeing her in that state. The Italian authorities viewed her as incapable of looking after her older children, and it is stated that she was clearly still in a bad state when she was in court two months after the birth and on her subsequent arrival in Italy. Bipolar disorder is, quite simply, not a minor mental illness.

      • Ashamed to be British

        Do you KNOW this, did you witness it, or are you going on the opinion of social services, because I can assure you right now, nothing they say will be fact

      • akismet-eff813566684eca1ae505ee074c9efbf

        It might be worth reading this statement by the trust that seems to infer the pregnancy was the reason she could take medication.

        Again I worry that the trust was erring by thinking of the best interests of the child when she hadn’t been born yet at the expense of the mother and was outwith a courts jurisdiction from the wording of the statement and phrases such as this.

        “When someone lacks capacity to make decisions of this magnitude for themselves (the C-Section) it becomes a matter for the Courts, who supported the application.

        We can see why this is such a troubling case but it hinges on the difficult balance of the best interests of the mother and baby.”

      • akismet-eff813566684eca1ae505ee074c9efbf

        It might be worth reading this statement by the trust that seems to infer the pregnancy was the reason she couldn’t take medication.

        Again I worry that the trust was erring by thinking of the best interests of the child when she hadn’t been born yet at the expense of the mother and was outwith a courts jurisdiction from the wording of the statement and phrases such as this.

        “The application for the C-section was made to the Court of Protection by the Obstetricians to ensure the safety and well-being of both mother and baby.”

        and this

        “When someone lacks capacity to make decisions of this magnitude for themselves (the C-Section) it becomes a matter for the Courts, who supported the application.

        We can see why this is such a troubling case but it hinges on the difficult balance of the best interests of the mother and baby.”

      • Badly worded, yes, but when you read the judgment it is absolutely plain that the Court was taken to plain authority that the interests of the unborn child played no part in the decision that the Court had to make. There’s the other argument that Lucy Series makes at the Small Places blog that the Court didn’t seem to be taken to a legal authority (St Georges) that puts a rightly high burden on the Trust to show how they have helped the patient to try to make an informed decision before seeking such a declaration from the Court.

        Like others, from the outside looking in, it appears that the Trust ought to have had a window of time to properly and fully prepare the application (mother being detained under the MHA weeks earlier and it being obvious that she was in late pregnancy) – but without seeing the full facts, it would be wrong for me to try to guess why that didn’t happen here and the application was on an emergency basis. It could be as basic as the MH team and obstetric team not properly talking to each other, it could be a deterioration in either mental health or the obstetric situation that meant that a c-section was felt medically necessary.

        (Of course, it is very hard to put that entirely out of your mind – hypothetically, if a person lacked consent and a c-section had no medical benefits for them but would ensure the baby could be born alive, I strongly suspect that the best interests decision would be “If mother had capacity, she would want her baby to live, so it is in her best interests to have the operation” – it becomes quite a semantic distinction; although if there were a choice between a course of action which would save one and not the other, the unborn child would lose out)

      • There is a learning curve. Her older child had been traumatised. Perhaps. And she had gone on to learn lessons. – not like the learning done by Local Authorities, whether minor or not. When she stopped her medication, for the sake of her unborn child, she became manic. Perhaps. After the awful treatment of her in the British NHS it was admitted that she was clearly in a bad state. WELL DONE the NHS! Bipolar disorder is, quite simply, not a minor mental illness. – Perhaps. But it certainly can be managed. WELL DONE NHS for not dealing with it.

  13. You should read the actual judgment dear Mind, if you haven’t already done so. In it is clearly documented that Social Services were involved in the case from the onset and Judge Mostyn was well aware of the planned care order.

    Commenting on all the “booboos” in your entry I spare you, myself and your audience. You may talk legal sense, but in your own way you talk just as inhumane as all the judges and other beasts of “the system” – which is what describes best the UK Legal System and it’s track record in human rights abuses. You only make sense to each other. For that poor woman and her child you surely didn’t make sense and it is rather Mostyn and the likes of him who is “incapacitated” but this woman who was “legally” snatched, locked up, force medicated and cut open.

    • Ashamed to be British

      Assuming (and there seems to be a lot of that from the outset by all, including the judge, solicitors, doctors et al) she was locked up under an S2, she cannot refuse medication. It would be interesting to know if she saw two doctors within 5 days of each other, or a relative agreed to her being sectioned BEFORE the sectioning.

      An application for admission to hospital under a s2 must be made by an Approved Mental Health Professional (AMHP) or your nearest relative. They must have seen you within 14 days of making the application. In addition you must be seen by two separate doctors, one of whom has been approved under the Mental Health Act. The doctors must have seen you within 5 days of each other. Admission to hospital must be arranged within 14 days of the last medical examination.

  14. The woman had stopped her medication, probably because of the pregnancy, and suffered some form of relapse for her bipolar condition. This is quite common but not irreversible once medication is restored. Given her brutal treatment in a strange place at the hands of the NHS and the forced separation from her baby, she must have been traumatised on top of everything else. How does this become a matter of forced adoption?

    It does not matter how the various agencies spin this, it does not look right but I am sure there is more to come.

  15. One flew over the cuckoo’s nest! This mother was incarcerated in a mental hospital by trickery and lies telling her it was to see if the baby was ok. She was isolated from family and friends and forbidden to communicate with the outside world.She refused to answer questions by doctors and pays without a solicitor present so they sectioned her! There is no evidence from anyone sympathetic to her that she lacked capacity to instruct a barrister of her choice rather than one who represented the NHS and never bothered to see her to verify whether she could instruct him or not. What a horrible carve up! Ian

    Sent from my iPad

    • You are taking at face value here the account of a woman who at the relevant time is described as being in a bipolar crisis with schizophrenic features and intrusive delusions. It appears that her own mother alerted the police to her condition. The barrister she had was not instructed by the NHS, nor did he represent them. Anyone who knows him would attest to the fact that he would have acted solely in his client’s interests and would not have hesitated to oppose the order for a Caesarian strongly if there had been any evidence that it was not in her best interests or that she would not have consented to it if she had capacity: bear in mind that she had consented to two previous Caesarians.

      • akismet-eff813566684eca1ae505ee074c9efbf

        Just because she had two Caesareans before doesn’t necessarily mean she was up for a third. Perhaps they had been two extremely frightening experiences for her that she had no wish to repeat it. You can’t just brush aside someone’s wishes because in their past they had it before. I also don’t think you can just say, Oh she was mad so you can’t rely on that now can you which is the line you are dangerously close to crossing there,

  16. I think that a lot of these issues might have been resolved if the starting point for the Official Solicitor was to oppose the application, argue it out and let the Judge decide. There was, of course, nobody presenting a counter view to the application. That’s the process that we have, but it is fair to examine if it is flawed.

    • Open-minded examination of the emerging factual basis leads to but one conclusion.

      Root and branch reform is long overdue to balance the pendulum of unwarranted state interventionism.

    • akismet-eff813566684eca1ae505ee074c9efbf

      If you have a patient that wants an alternative course of action from what’s proposed then surely the OS should be beholden to actually argue the patients position rather than simply accepting it. I understand that the COP is meant to be inquisitorial rather than adversarial but surely that becomes a problem in cases such as these?

      • I don’t disagree – the problem is that the very heart of the issue is whether the person is actually able to make that decision for themselves, but I would feel much happier if the default position was that the Official Solicitor had to argue (1) For what the person’s most obvious or recent expressed wishes were or (2) in the absence of any expressed wish, to argue AGAINST the intervention sought by the State. The Judge can decide what is in the person’s best interests, but it is a fairer decision if there is someone advocating for and someone against the declaration sought.

      • akismet-eff813566684eca1ae505ee074c9efbf

        I do think it would be better, but I would also rather have the judge actually meet the person in question before making a decision in addition to that.

  17. It is well known that mental capacity can be diminished when people are put under severe emotional stress. I think the newspapers may not have been entirely wrong, just because the ‘offical record’ gives an account (second hand) of events. Bi-polar disease and its manifestations are not new to the woman and she was already under a system in her own country. I can well imagine when your first language is not English how suddenly being taken to a psychiatric unit and incarcerated, not understaning what is going on, will make you mentally incoherrent and you will them be assessed as lacking mental capacity.

    Suesspicious Minds I have personal experience from direct care of others how badly mental capacity assesments are made. So although you might give an account which seems to suggest the media misrepresented the situation, the fact that social services themselves seem not to accept that Italy was the place for the mother and child to be dealt with according to Italian laws should worry anyone. The child was born in the UK unintentionally- it would have been in Italy had the events that occured not taken place.

    Back covering is rife in health and social care- it is not about best interests and there may be issues of adoption targets if the wider family are being denied the right to care.

    I will always believe the client– she has already lost, fight back though she might, her child will suffer from lack of contact with mother and being placed with some family of a different culture.. Those in power and jobs are not going to want to loose them so they are not going to tell you what they actually did / decided, only what they want you to think they did..

    • akismet-eff813566684eca1ae505ee074c9efbf

      When my partner suffered a psychotic episode in a public place. (he had been under severe stress and had been without sleep due to insomnia for nearly 3 weeks) he was told by a special mental health nurse that he was lucky that I had been with him at the time to defend him and explain his disturbing behaviour to both the police and the PU he was taken to. I still remember the remarks of the police officers to this day who made comments such as “he’s faking it” when he went catatonic to “why are you with him?” and “will you stay with him after this?” all within the hearing of my partner so I know that the authorities are sometimes god awful when dealing with mental illness.

      Thankfully in Scotland we seem to be distancing ourselves from sectioning and its becoming an increasingly rare occurrence even for those at risk of suicide as its deemed better for their recovery to remain at home under treatment. His section was quite quickly lifted once an advocate got involved and it was shown that he was perfectly capable.

      He was sectioned and then he was followed constantly by a man who could only be described as a bouncer. He couldn’t go to the toilet alone, while he slept the man was in the room with him it was bizarre and very frightening for him and for us. So I can only imagine how terrifying this must have been for a visitor to the country

  18. I am really concerned about the involvement of the newspapers here. It has now been demonstrated over and over again that their original reporting was, quite simply, factually incorrect. In particular, it has now become incorrectly imbedded in the public’s minds that it was Social Services who applied for the order for a Caesarian so that they could effectively steal the child from her mother’s womb, and this has led to major hysterical over-reaction.. They suggested that the mother’s family were prepared to look after the baby when the facts demonstrate that they were not. They are cynically exploiting a woman who has been very ill, together with her children, mainly because it suits their agenda. They are almost certainly giving her false hope and putting massive pressures on her which may harm her mental health yet further.

    I hold no brief for local authorities and their social services departments, who I know from experience are capable of making some appalling decisions. But it does seem to me that this was an extremely difficult and tragic case where all concerned had to make decisions at very short notice in relation to a changing situation. We really have to be careful not to view this through hindsight, and in particular we have to bear in mind that the priority here has to be the welfare of the baby.

    • akismet-eff813566684eca1ae505ee074c9efbf

      The priority prior to birth was not the welfare of the baby but the welfare of the mother. I do not seriously think you can say you can act as you like prior to the birth towards the mother because you are thinking of the welfare of a child that is out-width the jurisdiction of the courts.

      I am going to repost a comment I left at Neil Munro’s blog.

      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.

  19. I was originally repulsed by this case because of the forced adoption aspect of it and the reasons for the forced adoption. A baby removed from the mother forever because she has a mental health condition, which could possibly fluctuate in the future. To me that is no reason to separate a parent and child forever, there are alternatives. Although I did have thoughts on the forced caesarean section.

    The hearing is appalling, everybody from the state giving them selves a huge pat on the back,their arrogance shines through. its not even walking through the motions to pretend there could be an alternative outcome and to defend the mothers rights. With the SS obviously in the background pressurising,as in many cases.

    Its very obvious that the caesarean section was not about the “best interests” of the mother or child, they may as well have taken her outside put her against the wall and put a bullet through her head and then carved the baby from her womb with a meat cleaver.

    It was not a life or death situation for the mother or child.

    Health visitors (and other health care professionals) will tell mothers who have had a caesarean section to avoid becoming pregnant again for at least a year, giving the body time to recover and heal, to avoid complications in the birth of the next child. All who have had caesarean sections are at a small risk in the future like this mother, does that mean they should all have forced caesarean sections ? taking away their choice.

    This forced caesarean section was more about their time table and available beds, than the “best interests” of the mother or child, like it is with many caesarean sections carried out in the NHS.

    How anybody thinks this helps the states case is beyond me.

    • Ashamed to be British

      “they may as well have taken her outside put her against the wall and put a bullet through her head and then carved the baby from her womb with a meat cleaver.”

      That’s how I felt about it, it all seemed very … nazi Germany?

      • Some may think its sexing it up (like social workers do, while accusing parents of minimising issues), but that depends on their philosophy of human rights and their view of their fellow human beings. If you violate a persons human rights or fail to defend them, then you dehumanize them and deprive them of positive human attributes , you put your self above them and deny their humanity perceiving them to be less human or not human compared to your self and that is when abuse occurs . That is exactly what has happened at this hearing and subsequently in the hospital, they denied her as being equal to them selves , that’s exactly what happened in nazi germany.

        my description is basically the way they perceived her and treated her mentally, the actual physical operation that they performed on her and the way they performed it, is not far off the description either, they didn’t put a physical bullet in her head but they certainly did mentally and emotionally.

  20. I wonder if the Judge had a copy of the NICE Caesarean Guideline ( which is supposed to be used to guide practice within the NHS and says on page 28

    1.8.1 When advising about the mode of birth after a previous CS consider:
    maternal preferences and priorities
    the risks and benefits of repeat CS
    the risks and benefits of planned vaginal birth after CS, including the risk of unplanned CS. [new 2011]

    1.8.2 Inform women who have had up to and including four CS that the risk of fever, bladder injuries and surgical injuries does not vary with planned mode of birth and that the risk of uterine rupture, although higher for planned vaginal birth, is rare. [new 2011]

  21. “5. The decision about the C-section was on the basis of very clear medical evidence that it would prevent a uterine rupture” NO, this is simply incorrect. The statistical risk of rupture is 0.21%, meaning that for every 1000 vaginal births after a previous section, 998 births will be just fine, and two may lead to the scar separating – which can happen slowly and undramatically and be dealt with easily enough.

    Compare this with the serious risks to a baby of a caesarian birth such as very significant increased risks of asthma and life long gut problems, and risks to the mother of haemorrage, post surgical complications and many other problems and suddenly the “very clear medical evidence” is actually very, very unclear.

    • akismet-eff813566684eca1ae505ee074c9efbf

      That’s what was given to me by a time served mid wife who has been aghast at this story and is no happier since I showed her the transcripts. She can’t believe that a midwife at some-point let this go ahead and then regaled rather disturbing tales to me about her time as a midwife in Glasgow. There she said it was quite a regular occurrence for doctors to attempt to prove certain women had a lack of capacity due to various conditions (alcoholism/drug abuse, mental health, cancer) simply because the doctor felt they were making a wrong decision and the midwives had to step in to stop this proceeding.

      Other than a week long first aid course with the Royal Navy years ago I have no medical experience so have to defer to others. To me a risk of less than 1% means that really the higher probability is that a natural birth is just fine so long as that’s what the patient wants in the end. Its a risk that I would be comfortable weighing up the overall risks of major surgery.

      The medical evidence seems shaky at best given that the other probability was that things would proceed just fine. There seems to be no evidence the NHS trust attempted to engage with AA and that to me is disturbing given that it is clear from the Mostyn transcript AA was given no opportunity to defend herself as it were. I think the St George case should have taught us that simply taking doctors at face value is not appropriate in cases such as this and if you are going to compel someone to have surgery due to lack of capacity then you have a duty to meet the person in question.

  22. Official solicitor? Since when did they start acting in the interests of their clients who are children? The evidence coming forward from parents and children who have been gagged (remember Jack Straw and his gagging of children .?) is that the OFFICIAL SOLICITOR acts in the interests of the Local Authority or Trust.

    • Ashamed to be British

      Considering the LA give service users a list of solicitors when going to PLO, you’d have thunk people would have caught on to the fact they are not going to provide a list of solicitors who are going to lose them a case, wouldn’t you

      • The LA give people a list of all the solicitors in the area who do children work and do it for free (as the parent is entitled to have – the Government pays for the legal advice parents get in care proceedings). I suppose they could just photocopy the solicitors section out of the yellow pages and let parents, who now maybe have two or three hours to find a solicitor who can represent them and give them advice, ring each of them to find out “We don’t know much about this work, but our rates are £200 an hour” or “I only do probate work”.

      • Ashamed to be British

        Hmmm, I don’t think so, they are very carefully selected, usually, the LA will leave out the solicitors who refuse to sit in their pockets. For example, i don’t know of any LA (Birmingham) who have Brendan Flemming on their list of great solicitors.
        Perhaps that would be that he is a great solicitor, but also a rotweiller against a LA who wnat to remove children on flimsy excuses

      • I haven’t worked for Birmingham, but I’ve worked for ten local authorities and every single one of those uses the approach I describe – every solicitor’s firm in the area that does children work and does it on legal aid. You won’t believe this, but I far prefer a parent to be represented by someone who fights very hard for them, that’s the check and balance that the system needs. If that legal advice and representation keeps the child at home, or allows a Court to decide to send the child home, that’s a good outcome.

      • Ashamed to be British

        That’s the problem, legal aid is virtually finished, many parents are turning to MKF’s because the solicitors wont toiuch them, the ones that do refuse to take insruction from their clinets and don’t work for them, they very often work against them, I have witnessed this many times and hear the same complaint several times a day “How do I report a solicitor”
        Nearly all solicitors refuse to hand over the bundles once the funds have run out, leaving the LIP without a case, it’s shameful.
        Maybe it’s worth getting some research together and doing a seperate blog on this very subject? Your thoughts?

      • Ashamed to be British

        To add … the Local Authority usually take children at the close of business on a Friday night, leaving the parents not only emotionally battered, confused and distraught, but also without a solicitor and no way of getting one, it’s shocking

  23. Look at the facts revealed by this judgement not theories:_
    An Italian woman visiting this country was before judge Mostyn represented by a lawyer who had never met her;She was on the judge’s instructions forced to have an operation against her will ,Her baby was removed and it was also on the judges instructions that she was not told of the intention to take the baby under an interim care order giving Essex Council authority over the child .This authority they misused , (flouting the advice of the hospital doctors that this lady go with her child into a mother and baby unit) by putting the baby first into foster care and then with adoptive parents From start to finish this Italian lady begged only to return to her family in her native Italy to give birth there and when that was denied to her to return there with the baby.extracted from her by force.
    Why,why, was she prevented from returning to her own country where an Italian hospital could have supervised the birth and Italian social services could have dealt with any health or other issues?

    • Ashamed to be British

      Adoption makes big bucks

    • Some of your facts are theories.

      • Ashamed to be British

        Educate me, you don’t think the adoption agencies make big bucks?

      • This Italian lady came to UK on a temporary visit,She repeatedly asked her doctors to be allowed to return to Italy for the birth where the Italian social services,her own doctors, and/or hospitals could have dealt with her problems, This request was refused and instead her baby was taken by Essex social services for forced adoption by strangers,She then returned (escorted) back to Italy no longer pregnant but without her baby !
        Which of these facts do you claim to be an opinion ?????

  24. As for the explanation of the duties etc of the Court of Protection.The only factor of importance is that relatives can be separated by force,houses sold,and bank accounts emptied ,all to pay unwanted and expensive care homes.Worse still any relative revealing names to the media in protest at what they perceive as outrageous treatment by the court will face jail for breaking confidentiality and any enquirers will be silenced by a gagging injunction! That is what we mean when we talk of” protection”!

  25. As well as the NICE guideline on caesarean section, it may be helpful to look at their Guideline on Bipolar Disorder

    Click to access 30193.pdf

    including the section on pregnancy, which shows the difficulties of prescribing and taking medication at this time. Like other NICE guidelines, it also places great emphasis on understanding and respecting the views of the patient – but, as my granny used to say, “Fine words butter no parsnips.”
    I wonder also if the expert advice given to the judge in the Court of Protection included the increased risk of post-natal post traumatic stress disorder after treatment given without valid consent. A perinatal psychiatrist, though not perhaps a general psychiatrist, would be more familiar with the literature on this, which shows it is a specific risk factor for PTSD.
    Birth choices after previous caesarean are a common subject in calls to our helpline, and many women have strong preferences – hence the impossibility of doing a large randomised trial (gold standard research) to measure outcomes with greater accuracy. After a traumatic emergency caesarean, some choose a planned caesarean. However many choose a vaginal birth. This choice is now supported by both the American and British colleges of gynaecology after too many obstetricians had tried to rescue women from the massive haemorrhaging caused by removal of embedded placentas from a previous caesarean. We did ask the Confidential Enquiries into Maternal Deaths to look at the degree of necessity for the previous operations , but failed.
    What comes across strongly in our calls is the depth and intensity of feeling many women have about achieving a vaginal birth, and how effective such an achievement is in healing previous trauma and improving mental health and family wellbeing. Even women who laboured and finally needed intervention, are glad that they tried. Our problems arise when women choose home birth, believing that they will then have a greater chance of success than in high-interventionist obstetric units. Under Department of Health Guidelines on consent, and doctors’ and midwives’ codes of conduct, they have every right to make such a choice. However, increasingly referral to social services is being used by health care professionals as a threat to bring non “compliant” women who have no mental illness into line, with hugely damaging results.
    Unfortunately many social workers not only know little or nothing about maternity care, and frequently misunderstand medical terminology, but they are actually mis-educated into thinking that pregnant women who opt out of any form of care are committing an offence they have created called “antenatal neglect”. They assume that any officially recommended intervention must be beneficial – obviously never having read the literature on the thousands of babies killed by medical advice to place the infant prone to sleep, or the controversies on safety of antenatal ultrasound. Moreover we have seen many cases where social workers have interfered in medical diagnosis, prescribing and decision making – often creating risks to patients. In many cases, they urge, without medical cause, hospitalisation for birth and encourage caesarean section where they intend to remove the baby.
    Whatever the High Court decision, the current public debate should be understood within the context of what has been happening to social work culture, the erosion of its professionalism and ethical standards through unquestioningly obeying government targets and guidelines on adoption, and how “multi-agency” working has affected other professions.
    Jean Robinson, President, Association for Improvements in the Maternity Services

    • Ashamed to be British

      You are so right Jean. My Daughter in Law was acused of neglect over a pregnancy she didn’t even know about, she got medical attention as soon as we found out, I even have the chair on recording stating that some women don’t know until they give birth, yet she chose to put neglect down as a reason for a child protection plan :/

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