Hearing today in Foetal Alcohol Syndrome case

The Court of Appeal hears the case of CP v Criminal Injuries Compensation Authority today. It will be considering whether consumption of alcohol during pregnancy can constitute the crime of poisoning. Birthrights and the British Pregnancy Advisory Service (bpas) have provided written submissions to the Court to highlight the serious potential consequences for women’s health and autonomy.

You can read our submission to the court here: BPAS-Birthrights CP v CICA Intervention

In the case, a council in the North-West of England is seeking to prove that the mother of a six-year-old girl born with Foetal Alcohol Syndrome (FAS) committed a crime under the Offences Against the Persons Act 1861 by drinking during pregnancy. The case is of profound social significance, as if the court were to interpret the law as requested by the council, it would establish a legal precedent which could be used to prosecute women who drink while pregnant.

Similar developments in U.S. have resulted in the incarceration of women. Consequently, the American organisation National Advocates for Pregnant Women (NAPW) have called on the court to ‘reject efforts to create criminal penalties as a mechanism for addressing health problems women may face during pregnancy.’

FAS is a complex condition, denoting a collection of features including retarded growth, facial abnormalities and intellectual impairment, and there is continuing uncertainty in the medical community over the relationship between alcohol consumption and harm tpregnant_alcoholo the foetus. While it occurs in babies born to alcoholic women, most babies of alcoholic women will not be affected, as other factors – including nutritional status, genetic make-up of mother and foetus, age and general health – are also believed to play a role. There were 252 diagnoses of the syndrome in England in 2012-2013.

Pregnant women with addiction problems need rapid access to specialist support services, as do children born with disability caused by drug or alcohol abuse. Birthrights and bpas do not believe that mothers and their babies will be best served by treating pregnant women who need help as criminals.

“Viewing these cases as potential criminal offences will do nothing for the health of women and their babies. There is a strong public interest in promoting the good health of pregnant women and babies, but, as long-standing government policy recognises, this interest is best served by treating addiction and substance abuse in pregnancy as a public health, not criminal, issue,” said Ann Furedi, chief executive of bpas and Rebecca Schiller, co-chair of Birthrights.

“As well as undermining women’s ability to make their own choices while pregnant, women with substance addictions may avoid engaging with health services or feel compelled to terminate their pregnancy rather than continue and face criminal sanctions. It could also make health professionals responsible for reporting women in their care to the police.”

“Both the immediate and broader implications of this case are troubling.  Making one particular form of behaviour during pregnancy into a criminal offence would lay the ground for criminalising a wide range of other behaviours because they may too pose a risk to the health of the baby. When we consider that the taking of necessary medication, such as treatment for epilepsy or depression, or the refusal of a caesarean section could be seen to fall into the category of maternal behaviours that may damage the foetus, the trajectory of such an approach is deeply worrying.”

“We should take very seriously any legal developments which call into question pregnant women’s fundamental right to bodily autonomy and right to make their own decisions. Pregnant women deserve support and respect, not the prospect of criminal sanction for behaviour which would not be illegal for anyone else.”

More details about the case are available in our previous post.

Birthrights applies to Court of Appeal to intervene in fetal alcohol case

A forthcoming court case on criminal injuries compensation for a child whose mother drank during pregnancy could pave the way to the criminalisation of pregnant women’s behaviour, Birthrights and
the British Pregnancy Advisory Service (bpas) warned today.

We have applied with bpas to address the court on the case, which we believe could seriously undermine women’s autonomy while pregnant and their freedom to make decisions for themselves.

A council in the North-West of England is seeking to prove that the mother of a six-year-old girl born with Foetal Alcohol Syndrome (FAS) committed a crime under the Offences Against the Persons Act 1861 by drinking during pregnancy. If the court were to interpret the law as requested by the council, it would establish a legal precedent which could be used to prosecute women who drink while pregnant. Similar developments in the US have resulted in the incarceration of women. The case is due to be heard at the Court of Appeal later this year.

Birthrights has previously blogged about the case here.

FAS is a complex condition, denoting a collection of features including retarded growth, facial abnormalities and intellectual impairment. While it occurs in babies born to alcoholic women, most babies of alcoholic women will not be affected, as other factors – including nutritional status, genetic make-up of mother and foetus, age and general health – are also believed to play a role. There were 252 diagnoses of the syndrome in England in 2012-2013 – a prevalence rate of 0.36 per 1,000 live births (based on 694,241 births in England in 2012).

Pregnant women with addiction problems need rapid access to specialist support services, as do children born with disability caused by drug or alcohol abuse. Birthrights and bpas do not believe that mothers and their babies will be best served by treating pregnant women who need help as criminals.

Viewing these cases as potentially criminal offences will do nothing for the health of women or their babies. As well as undermining women’s ability to make their own choices while pregnant, it is likely to deter those women who do need support from seeking it and put health professionals under pressure to report women to the police. Both the immediate and broader implications of this case are troubling. We should take very seriously any legal developments which call into question the autonomy of pregnant women and right to make their own decisions. Pregnant women deserve support and respect, not the prospect of criminal sanction for behaviour which would not be illegal for anyone else.

Views on the forced cesarean judgment

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.

Concerns

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

When maternity doesn’t matter – new report shows how badly we are failing vulnerable pregnant women

We are failing the most vulnerable pregnant women in our society. Women who have experienced serious trauma and abuse in their home countries, who often have underlying health conditions, and who are in the UK seeking refuge and protection. The report published today by the Refugee Council and Maternity Action explains how we take these women and “disperse” them around the country during their pregnancy. Women within days of giving birth are uprooted from the communities who support them, from the fathers of their children, and from the health professionals who have cared for them. The UK Border Agency policy that permits such mistreatment is a national disgrace.

Maternity_front_cover_medium

At the launch of the report tonight in the Houses of Parliament, Sethu, one of the women featured in the report, spoke about how she had been sent from Leeds, her home of 8 years, across the country shortly before she gave birth, away from her partner, her specialist midwife, her charitable support worker and her NCT classes. She managed to return to Leeds to give birth but under pressure from UKBA she discharged herself early to return to her new accommodation. She contracted an infection and was admitted to a local hospital which refused to allow her to see her newborn baby except during prescribed visiting hours.

The report is full of similar stories. It helps us understand how it is that refugee women are 6 times more likely to die in childbirth than British women. And as obstetrician Daghni Rajasingham said at the event tonight, there is simply no reason for such an arbitrary dispersal policy that has clear economic as well as human costs.

It should galvanise every one of us who cares about women’s rights to take action to change UKBA policy. Join the campaign.

Victory for pregnant claimant in use of force case

Following previous posts on this issue, we are very pleased to hear that UKBA has conceded that it, and its private contractors, cannot use force against children and pregnant women in the absence of a policy on the use of force.

Four Claimants – a pregnant woman and three children – brought a judicial review on behalf of all children and pregnant women within the immigration system, challenging the legality of the UKBA’s practice of using force against these them in the absence of any clear policy limiting its use.
Shortly before the hearing for an injunction in the High Court on Friday, the UKBA re-published an old policy addressing the use of force against pregnant women and children. That policy prohibits the use of force save where absolutely necessary to prevent harm.

The Royal College of Midwives gave a witness statement in the legal proceedings. They said: “The Royal College of Midwives believes the restraint of pregnant women and children is an antiquated practice that shames us all. Midwives must serve all mothers and babies regardless of their immigration status.”

UKBA’s climb-down avoided the need for the court to extend an injunction which the Claimants had obtained in early February from Mr Justice Collins which prevented the use of force save to prevent harm occurring. In court before Mr Justice Turner on Friday, UKBA accepted that it is necessary for a policy to be in place and announced that they had published a policy today on UKBA’s website. Mr Justice Turner stated that there needed to be an immediate consultation on the terms of the policy applying to children and pregnant women.

High Court prevents use of force against pregnant immigration detainee

We are pleased to report that a legal challenge has been brought to the use of force against pregnant women and children in immigration detention by UKBA and private security contractors. The High Court granted an interim injunction preventing force from being used against the claimants (a woman 30 weeks pregnant and her small children) in the case until their claim is determined.

The Home Secretary has failed to put in place a policy regulating the use of force following her rejection of the Prison Inspector’s recommendation that force can only be used where there is a risk of harm to self or another.

The judge, Mr Justice Collins, expressed grave concern about the Home Secretary’s decision to continue to the use of force against pregnant women and children without a policy in place. The full judicial review will be heard soon.

You can read about the background to the case in this Guardian article.

Midwives to ask women about FGM

Interesting story yesterday about plans for midwives to ask routine questions about female genital mutilation in ante-natal appointments. Generally women will not have vaginal examinations during their pregnancies, so unless the question is asked (and answered honestly) it’s impossible to know whether they have suffered FGM until they are examined during or after childbirth.

It’s not quite clear whether the main purpose of the new question is to identify women who might need additional support during childbirth (FGM can lead to complications) or whether it is to identify baby girls who may be at risk because they are born into families who have practiced FGM. Either way, midwives will need robust training and support to deal with the issue sensitively and ensure that women do not feel stigmatised and shut out from maternity care.

US research reveals widespread mistreatment of pregnant women

A study just published in the USA finds horrifying mistreatment of pregnant women based on misguided application of ‘pro-life’ laws.

The groundbreaking research reveals how attempts to create a separate legal entity for fetuses have led to arrests, detentions, and forced medical interventions on pregnant women.

Co-authored by Lynn Paltrow at National Advocates for Pregnant Women, an inspirational organisation fighting hard to resist the rising incursions on pregnant women’s autonomy in the name of their unborn child.

Shocking report into use of force on pregnant immigration detainees

The Guardian has reported today on the UK Borders Agency refusal to stop its security contractors (the notorious G4S) using force to remove pregnant women from the UK. Pregnant women have reported being mistreated by G4S staff – including being pushed in the stomach and dragged around the floor.

The Prison Inspectorate reported on mistreatment in October and recommended that the use of force ceased.

Medical Justice, a charity investigating healthcare abuses in immigration detention, is doing great work about the treatment of pregnant women detainees.

High Court decision on mental capacity of pregnant women

Pregnant women with severe learning difficulties “may very well retain capacity to make deeply personal decisions about their own medical care”. A great decision from Mr Justice Hedley sitting in the Court of Protection.

The woman, who is unnamed for legal reasons, has very severe learning difficulties and is said to be in the bottom 1% of the population for cognitive ability. Her doctors approached the court to ask whether she had the mental capacity to decide whether to continue with her pregnancy. The judge made the very important legal point that those who lack the mental capacity to make decisions about key areas such as money and living arrangements may nonetheless be able to make deeply personal decisions about sex, relationships and giving birth. She is entitled to make her own decision about whether to have an abortion.

You can see a report of the judgment in the Independent.

Birthrights factsheet on consenting to treatment explains the law on mental capacity and pregnancy.