Reports over the weekend revealed that the Court of Protection last year authorised the performance of a cesarean section on a woman without her consent. The woman was reported to be an Italian national detained under the Mental Health Act 1983. If accurate, and without access to the court’s judgment it’s wise to be wary of media reports, the circumstances of her detention raise concerns about the appropriate use of Mental Health Act powers against pregnant foreign nationals visiting the UK. Putting those concerns to one side and focusing on the authorisation of the operation, what was the legal basis for the court ordering a cesarean?
Women’s decisions about childbirth are fiercely protected by the law. In S v St George’s NHS Trust (1997), the Court of Appeal made it plain that pregnant women retain the same autonomy over their bodies as any other person. They can refuse medical treatment regardless of the danger to themselves or their child. There is one exception: pregnant women who lack the mental capacity to make decisions about their medical treatment can be treated against their will under section 16 of the Mental Capacity Act 2005 so long as the treatment is in their ‘best interests’. A person who is detained under the Mental Health Act 1983 can only be treated without their consent for their mental disorder and cannot be compelled to accept treatment for unrelated conditions (such as pregnancy). There is no legal provision for the interests of an unborn fetus to be considered in the best interests assessment, though the court might assume that an incapacitated mother desires the best outcome for her child.
There is a very high threshold for establishing that a person lacks mental capacity to make decisions about medical treatment, particularly when it concerns their fundamental reproductive rights. Simply because a person has been diagnosed with a mental health disorder does not mean that they lack mental capacity – the two concepts are distinct. In May this year the High Court held that a woman with severe bipolar disorder was capable of deciding for herself whether to have an abortion. The decision in that case was published, so we know the judge’s reasons, but the judgment in this case appears not to have been made public. We are left to speculate about why the woman was deemed incapable of making a decision for herself and why a cesarean was believed to be necessary. Needless to say, there ought to be greater transparency from the judges in the Court of Protection and judgments (appropriately anonymised) should be published as a matter of course.
The news reports suggest that the application to the Court was made by Essex Social Services and not by an NHS Trust. If correct, this would be very unusual – you would expect the woman’s treating obstetrician to initiate any application for a c-section and at the very least to have provided evidence to the court about the necessity for the operation. If social services made the application, it fuels speculation about the real purpose of the operation and whether it was in the woman’s best interests. We do not know if the woman was under the care of a perinatal psychiatrist, who would have given evidence on this question.
Why the woman could not give birth normally, and without the serious invasion of her bodily privacy and integrity that a c-section performed without consent entails, is a question we cannot answer without access to more information. If the NHS Trust was not involved in the court procedure, the doctors and midwives have an independent legal and professional obligation to assure themselves that a woman cannot give her consent to treatment before performing a c-section. If they had concerns about the basis for the court order, they ought to have raised those concerns before the operation.
It is also worth asking why mother and baby weren’t accommodated in a specialist unit for mothers with mental health disorders pending assessment of her mental state post-birth. It is well known that pregnancy can cause a relapse in psychiatric conditions and immediate removal of a child from its mother on the grounds of the mother’s mental health condition requires very careful assessment and justification (which would have been made harder by her distance from home and usual treating physicians).
There will be circumstances in which a court-ordered c-section is appropriate and in an incapacitated mother’s best interests. It is incumbent on our courts that they give a full and public explanation when those cases arise.
Elizabeth Prochaska, Birthrights
Update
The Guardian now reports that it was the NHS Trust which applied to the Court on the basis of ‘risks to mother and baby’. The nature of those risks has not yet been explained.
The adoption judgment has now been made available, which gives greater context for the social care decision-making.
You can read some excellent blogging on the case by Lucy Series on Pink Tape and Adam Wagner on UK Human Rights Blog.