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)
suesspiciousminds 
They just love to tell parents and old people “you have no capacity !” and base this on social worker’s reports which are studied by a hired gun psy before they see the “patient” (if they bother to see the patient at all !).
In one case, I helped a girl who was earing £450/day as a compliance officer for a bank and her “barrister” who had never met her but had read the social worker’s reports greeted her with her first words “you have no capacity so I shall ask the official solicitor to represent you !”This was on a Friday so I managed to get her thoroughly tested by an eminent psychologist who saw her as a favour to me on a Sunday for court that week and pronounced her of well above average intelligence and capacity.;The judge was furious and said the psy had not read the social worker’s reports and therefore could not give an unbiased report !He also said she should have asked permission of the court when there was no time to do it and it would have been refused anyway !
Luckily the psycholgist could not be shaken under questions from the judge so the mother was allowed to represent herself with a lot of wit and intelligence and she still has her children !
Anyone accused of having no capacity should be allowed to call their own GP to intervene but that alas is rarely allowed……..
In the Italian case the wishes of the mother in the hearing are never taken into account nor was there any citing of legal test such as RE:C in order to determine if she had the right to refuse. While the Mostyn stated that the mother’s right came first he didn’t bother to weigh the emotional and psychological risk to the patient. The one thing he did keep referring to was the safety of the unborn baby and the possible less than 1% risk of rupture to the mother, yet I know from personal experience that c-sections carry a number of risk which were never mentioned in the hearing.
I believe this was a much better judgement in light of the Italian case in that the court seemed more thorough in considering the concerns and rights of the patient.
The question is … how do we prevent what we know is coming, ‘you have no mental capacity’? There seems to be no precendent set/case law to rely on, as Ian says, just hired guns who trot along with what the LA want
If you have capacity and suspect that you might lose it (either by way of dementia, or a cyclical mental illness) then a Living Will, is probably the best way forward – setting out what your views are about treatment and consent.
Crossed wires … I meant we as in society, to prevent the LA just deciding people have MH issues, I honestly do not know one parent who hasn’t been diagnosed by the social worker and I know far too many who have actually been thrown into mental institutions, it is a great way to shut them up when they have a good case to fight for their children
Ah, we as Society. Unusually here, I sort of agree with Forced Adoption Ian. If there’s a legal presumption of capacity (and there is, in the Mental Capacity Act 2005) then perhaps when a person is diagnosed with not having capacity and there’s an expert report saying that, the person ought to be able to tell solicitors to challenge that diagnosis fearlessly – and then the evidence is properly tested before the Judge makes a decision, rather than the expert report saying “no capacity” being something of a fait accompli.
‘One Flew Over The Cuckoo’s Nest’ applies to the behaviours of LA staff- The Nurse in the book who controlled and was cruel is very much alive in the behaviour of LA/ social work.
In my experience of court judges (very brief as I was the plaintiff and ltigant in person) their thinking and knowledge of real lives of ordinary citizens is not great. One tends to hear hings regurgitated from ‘training / oft hearing’ rather than personal knowledge or experience of situations they are called to make judgement upon. I was made to feel guilty for a perfectly legal action..
Off topic on the c-sect, but might be a case to blog about.
http://www.bailii.org/ew/cases/EWHC/Fam/2014/58.html
The judge seems to believe that amniotomy alone is likely to be an efficient method of induction. Unless the mother is almost ready to give birth (in which case why not wait?) this is unlikely, and normally the next procedure would be use of prostaglandins to open the cervix and start labour – a procedure which would increase the risk of scar rupture. So was the judge fully informed as to how likely induction would be to fail by the proposed method and that swift recourse to caesarean would almost certainly follow?
We are not told how the anaesthetist would proceed, although the judge was. If general anaesthetic was proposed to make her more “manageable”, this carries greater risk for the mother, not only physically but probably almost certainly mentally. And in view of the mental health of the mother and her past history of child removal, social workers will almost certainly be standing by to remove the child immediately. One risk not mentioned was post-natal suicide, which is increased during the year after childbirth and remains one of the commonest causes of maternal death.
Our help line deals frequently with calls from distressed mothers who are trying to come to terms with caesarean births instead of the vaginal births they wanted, and their assertions that earlier avoidable obstetric interventions led to these. We have a number of cases where women have been so traumatised by emergency caesareans that they have the next baby at home, saying that they would rather die in childbirth than risk intensification of the post-traumatic stress disorder from their previous experience.
We realise that this mother has a complex set of problems, but if her welfare was prioritised, we would suggest that continuous case during pregnancy, birth, and post-natally from one midwife – which has shown to have beneficial outcomes – would perhaps have helped both her mental health and enabled her to contribute to decision making. There is no reason why such care should not be combined with obstetric care. At least one area is now training specialist mental health midwives.
Alas the argument that “the mother will be more damaged if she gives birth to a dead or damaged child” can be used to impose surgery on any pregnant woman with mental problems in late pregnancy, and doubtless we shall see its re-appearance.
Jean Robinson
President
Association for Improvements in the Maternity Services
I so agree with every word you’ve written
Reblogged this on Parents Against Injustice..
YOU DO NOT HAVE THE CAPACITY TO DECIDE and this is decided by a Judge – unbelievable – what do they know given their training in guilt or innocence. What does that really mean? (CAPACITY) I DON`T WANT THIS. I DON`T WANT THIS. – It means Government Agents will decide for you. BECAUSE THEY SAY THEY KNOW BEST. The law on Capacity should not exist, in my opnion. – IF YOU CAN EXPRESS IT at all, no state agent should come in and object – all else, is abuse by the State and the pharmaceutical industries in league with psychiatrists. Why do people not see the dangers?
There is not one of us who could not be judged by someone else in terms of our capacity. Even the judges can be judged in those same terms. I would call into question anybody`s capacity who would go along wih this rubbish. US and THEM. Do you really think so? Well, prove it, through somebody else`s assessment.
Rubbish, isn` it?
At the very least anyone said to lack capacity should be allowed to argue in person in court that they do have the capacity to decide for themselves whether they can look after their children,return home abroad,refuse an operation etc .As it is a doctor and social worker can section you even if you run a business turning over millions and have an IQ at near genius level !
the judge’s comment on it being in the mother’s best interests not to have a handicapped child resonate with me. I have a handicapped child with a considerable disability. This was certainly not in my own personal best interests.
It has reduced my earnings to virtually nil over the past 20 years and will leave me totally dependent on the state pension in my old age. Besides the personal grief which having a handicapped child might be expected to cause the parent to feel — bereavement at the loss of the child you expected, might be a way to summarise it and loss of a normal relationship with that child — there is also the difficulty caused to family relationships (less time to develop relationships with siblings) and the trials and tribulations of trying to arrange the upbringing of a person whose every aspect does not fit into the everyday world. Even with the best will in the world, which LAs sometimes do have but it is not generally supported by all the money in the world, the burdens of a handicapped person are colossal.
Not too sure of what difficulty with family relationships would arise as of the 3 older children 2 are in care the other overseas, more than likely number 4 would be also taken into care due to her difficulties. Whether adoption or foster care contact would be minimal or nonexistent between the older siblings.
My question would be if death or injury stemming from the forced operation were to occur who would be at fault if anyone? An example would be be if the court ordered c-sect were to cause a rupture on a subsequent pregnancy causing death, how would that be handled.
Sorry your child left you potless, maybe the local authority should have forcibly adopted him/her, then you could have had the life you wnated
My own son with his disability is my world, i couldn’t care less if I’m left as poor as a church mouse, at least I have him
The judge in this case took into account the disadvantages of having a handicapped child. There was some debate as to whether this was a legitimate disadvantage to the mother. Obviously it would be a considerable disadvantage to the child but since it was yet unborn this could not be considered. I think that it is indisputably disadvantageous to have a handicapped child for the reasons I gave.
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The investigative report by the house of lords on the MCA 2005 and its implementation has been released. http://www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/139.pdf
I believe this to be on topic to this discussion. It certainly does raise some questions about some of these court orders.