The judgment and a transcript of the hearing in the court-ordered cesarean case, known by the woman’s anonymised initials ‘AA’, has been published, so we now know how the court reached its decision. There has been some excellent legal commentary on the case. Here’s a round-up of the best blogs, followed by my thoughts on the judgment:
• Mental Health and Mental Capacity Law: Caesearean without consent
• Pink Tape: Update on the Essex C-section Case
• Head of Legal: Booker, Hemming and the “forced caesarian” case: a masterclass in Flat Earth news
The court proceedings
At the time of the court hearing, on 23 August 2012, AA was 39 weeks pregnant. She suffered from a ‘schizophrenic disorder which was psychotic in nature’. She had been detained in hospital under s.3 of the Mental Health Act. Her two previous children had been born by ‘elective’ cesarean section (the court was not informed of the circumstances of her previous births or her previous birth choices, see further below). Her obstetrician gave evidence that as a result of the earlier c-sections the risk of a uterine rupture during her third birth was around 1%.
The NHS Trust made the application (and not social services, as initially reported) to the Court of Protection for an order permitting them to perform the c-section and to use reasonable force to do so in the event that AA was not compliant. Essex local authority were not represented and did not play any part in the hearing. AA was represented, as is normal in Court of Protection cases, by the Official Solicitor. Both the lawyers for the Trust and the Official Solicitor agreed that as a consequence of her mental disorder AA lacked mental capacity to make decisions about her maternity treatment for herself.
The hearing was urgently convened and the judgment was ‘extempore’, i.e. the judge read out his decision at the end of the hearing, rather than reserving it for a later date. It was therefore a decision made in great haste. There is always a temptation in cases concerning pregnancy and childbirth to believe that the baby might emerge at any second and that decisions therefore have to be rushed. This will not always be the case. AA was 39 weeks pregnant. She almost certainly was not about to go into labour within the next few days (or at the least some thought could have been given to whether she was showing signs of imminent labour) and more care could have been taken over the evidence and AA’s involvement in the decision-making.
The main concern that I have seen expressed in the maternity community is that the court must have prioritised the interests of the fetus over that of the mother. It is clear from the judgment that this was not the case. The judge was at pains to make it clear that he was legally obliged, as a consequence of the Court of Appeal decision in Re MB (1997), only to consider the mother’s interests.
Some commentators have suggested that consent ought always to be required for a cesarean section, regardless of the mother’s mental health condition and mental capacity. I disagree with this suggestion. As long as the mental capacity and best interests assessment are properly informed and performed carefully and sensitively, it ought to be possible for a court to resolve treatment cases such as this appropriately. However, it is now clear from the judgment in this case that the capacity and best interests assessment were far from informed or careful.
These are my criticims, there are doubtless many more that those more expert in mental health and family law can make:
– AA’s own views and feelings about how she wished to give birth were entirely absent from the court’s discussion during the hearing or in the judgment. There was no reference anywhere in the transcript of the proceedings or the court’s judgment to any conversation with AA about her intentions for the birth, her previous birth experiences or any discussion with her family about how she might wish to give birth. Remarkably, it appears that her treating clinicians had not discussed with her whether she wished to have a vaginal birth or a repeat c-section. The fact she suffered from a mental disorder did not mean that she would not have been able to express her views about how she wished to give birth. This lack of consultation with AA is astounding and reflects very poor practice on the part of both her clinicians and the court. It also supports AA’s account that she woke one morning to be told that she was to be taken to hospital without any prior warning. The profoundly distressing effect of such an experience is reflected in AA’s obvious continuing trauma and anger about the way she was treated. It prompts the feminist in me to ask whether an incapacitated man facing surgery would have been treated in the same way…
– This lack of consultation had serious implications for the court’s assessment of her mental capacity. A person lacks mental capacity if they are unable to make a decision for themselves because they suffer from a mental impairment (s.2 of the Mental Capacity Act 2005) AND they are unable to understand, retain, use or weigh or communicate their decision even after all necessary practical assistance has been provided to them (s.3 of the Act). AA clearly suffered from a mental impairment sufficient to satisfy s.2 but there is no consideration whatsoever of whether she was able to understand, retain, use, weigh or communicate a decision about her birth choice, apparently because she was not asked about it. The court’s decision (and sadly AA’s own lawyer’s submissions) about her mental capacity were wholly inadequate to the seriousness of the decision that the court was making.
– The court failed to undertake any real consideration of the risk of scar rupture. Her doctors may have described it as ‘very significant’, but it is incumbent on the court to test that evidence. A 1% risk means that it was 99% likely that her uterus would not rupture. A 1% risk is equivalent to many other obstetric risks that would not be used to justify invasive surgery. The NICE Guidelines, which I suspect were not cited in evidence, state that women who had up to four previous c-sections should be advised that uterine rupture is rare and offered the choice of vaginal birth. The Royal College of Obstetricians and Gynaecologists recommends a repeat c-section after 3 previous c-sections. If the woman was requesting a vaginal birth (and we do not know what she wanted, because her voice is entirely absent from the evidence), she would have been making a perfectly reasonable choice.
– The notion that AA might ‘dissemble’ or become ‘uncooperative’ and refuse electronic monitoring during her labour so that the doctors were unable to tell whether she or the baby were becoming unwell reveals the profound lack of confidence that modern obstetrics has in its understanding of women during childbirth. Any woman in labour, regardless of whether they have a mental disorder, may appear to be acting ‘irrationally’ or ‘dissembling’. It is her attendants duty to watch her carefully and look for signs of distress that manifest themselves regardless of or in addition to how the woman might be behaving. But that requires doctors who will sit patiently with a woman during her labour and who do not rely simply on machines to give them an answer.
– The medical evidence suggested that AA and her baby ought to be placed in a mother and baby unit after the birth. It is unclear from the judgment why this did not happen. The first judgment in the care proceedings has not yet been released, but it ought to reveal the reasons why the baby was removed so soon after birth.
All in all, a depressing case for anyone concerned with modern maternity care and the rights of people with mental illness. The comment by Lucy Series on twitter best sums up my reaction: “If you were trying to convince somebody the Mental Capacity Act was progressive, empowering, person-centred, the caesarean judgment would not help you.”
Elizabeth Prochaska, Birthrights