Dr Sara Fovargue
Towards the end of 2013 it was reported in the media that a declaration had been issued by the Court of Protection on 23 August 2012 (transcript published on 4 December 2013) that it was lawful for a caesarean section to be performed on a 35 year old Italian citizen against her will, and a care order regarding the baby was subsequently obtained by the local authority. Headline writers had a field day; ‘Child taken from womb by social services’, ‘Please don’t take my baby: Agony of mother whose baby was put up for adoption after secret court judge forced her to have a caesarean’, ‘Forced caesarean case: Italian woman “suffering like an animal”’. The judgment and transcript of the caesarean case and the case report concerning the adoption tell a slightly different story (as I discuss below and in Part II), and the reporting of the story has subsequently been questioned by some, including Sir James Munby, President of the Family Division.
Transcript: Re AA  EWHC 4378 (COP)
The facts of the caesarean section case – Re AA (2012)
The judgment in Re AA is just over two pages long and contains little factual information, with the attached 10 page transcript containing slightly more. Nevertheless, in the media reports of the case a number of facts were unanimously reported, and I have included these below along with those provided by Sir James Munby in In the matter of P (A Child)  EWHC 4048 (Fam).
AA was a pregnant 35 year old Italian national, and a mother of two children both born by caesarean section. During June 2012 she came to England for a training course, and was being looked after by Mid-Essex NHS Trust following a panic attack, and refusal to take her regular bipolar medication. She was compulsorily detained under section 3 of the Mental Health Act (MHA) 1983 suffering from a significant mental disorder; a schizophrenic disorder with psychotic episodes and delusional beliefs. AA was deemed to lack capacity under section 2(1) of the Mental Capacity Act (MCA) 2005, and the Official Solicitor was appointed to represent her.
On 23 August 2012 Mid-Essex NHS Trust brought an application to the Court of Protection that it would be lawful to perform a caesarean section without AA’s consent in her best interests, and sought authorisation to use reasonable and proportionate force if necessary. The caesarean section was planned for 24 August 2012.
The court heard that as AA had already had two caesarean sections, the Royal College of Obstetrics and Gynaecology guidelines (Birth After Previous Caesarean Section (2007)) advised an elective planned caesarean to avoid the approximately 1% risk of her womb rupturing if there was a vaginal delivery, and also risks to the foetus. Additionally, psychiatric evidence supported a caesarean section as being in AA’s best interests.
Mr Justice Mostyn stated that the case fell within the Court of Appeal’s guidelines set out in Re MB  EWCA Civ 3093, and that ‘harsh though it is, the interests of this unborn child are not the concern of this court as the child has no legal existence until he or she is born’ . Following Re MB’s guidelines and the provisions of the MCA 2005, it was for the court to make decisions in AA’s best interests. The question was thus, was it in AA’s best interests for a caesarean to be performed, section 1 (5)? In deciding this, regard must be had to the least restrictive principle; can the same outcome be achieved via an alternative which is less restrictive of the person’s rights and freedom of action, section 1(6)?
It was in AA’s ‘mental health best interests, that her child should be born alive and healthy and that such result should be, if possible achieved, and such risks attendant should be avoided’ . Indeed, there was a ‘significant mental health advantage to her unborn child not being exposed to risk during his or her birth’ .
Thus, Mr Justice Mostyn declared that:
- AA lacked capacity under the MCA 2005 to make decisions regarding consenting to the delivery method, ante- and post-natal treatment, a birth plan, and ‘related clinical matters’, and also this litigation [p.3, declaration].
- An elective or planned caesarean section was in AA’s best interests (‘manifestly in her interests’ ), and ‘the use of reasonable restraint’ was authorised ‘in order to achieve that operation safely and successfully’ .
The situation post-delivery
The Official Solicitor noted that AA’s two existing children had been taken into care in Italy and raised the possibility of the local authority (LA) asking the police to remove the baby into police protection (section 46 of the Children Act 1989) if the caesarean was performed, as the LA would have reasonable cause to believe that the baby would be likely to suffer significant harm.
Mr Justice Mostyn stated that this would be ‘heavy-handed and might cause significant deterioration in the mother’s mental health’; rather, an interim care order under section 38 of the 1989 Act would be more appropriate . On 24 August 2012 care proceedings were issued by the LA.
1. It is interesting that, once again, a judge hearing a non-consensual caesarean section case felt it necessary to declare that the ‘unborn child’ had no legal status and rights and thus no bearing on the decision in the case, but then went on to consider that unborn child further in the judgment [4 – 5].
2. Unfortunately, there is nothing in the judgment regarding how it was determined that AA lacked capacity under the MCA 2005; although, Mr Justice Mostyn did recognise that just because AA was compulsorily detained under section 3 of the MHA 1983 that did not necessarily mean that she lacked capacity under the 2005 Act. Rather, a separate determination of capacity was required. Having said that, the Official Solicitor said that ‘plainly’ AA did not have capacity ‘because there is evidence of delusional beliefs’ (p. 4 transcript). The Official Solicitor drew on the evidence of the treating psychiatrist who had been treating AA since June 2012, and so an adjournment to consider capacity further was not sought because there was ‘a reasoned report based on good knowledge of the patient’ (p.4, transcript). While we do not have access to that report, the Official Solicitor’s comments are surprising given the decision in Re C (Adult: Refusal of Treatment)  1 WLR 290. It would thus have been useful to know a little more about the nature and extent of AA’s condition.
3. There is no indication of the stage of pregnancy AA had attained. Given that when discussing whether a natural delivery was possible, with a section performed if required, the Official Solicitor talked of that occurring in two or three weeks, it seems that this was not an emergency situation where delivery was imminent. If this is so, it is disappointing that time was not taken for AA’s capacity to be considered further (as noted above), given that (in)capacity is not static and AA could have regained capacity in the ensuing weeks. It would have been good to know how frequently her delusional psychotic episodes occurred, and their duration, as that might have indicated whether she was likely to regain capacity in the intervening period.
4. Counsel for the Trust declared at the outset of the application that ‘everything had to be done at some considerable speed’ (p.1, transcript). The urgency of the application is unclear, given the above, but the application was made late on Thursday 23 August 2012 (p.9, transcript) with the caesarean section planned for the morning of Friday 24 August 2012 (p.7, transcript). Emergency applications were a common feature in other non-consensual caesarean section cases (see Norfolk v Norwich Healthcare (NHS) Trust v W  2 FLR 613, Rochdale Healthcare (NHS) Trust v C  1 FCR 274, and Re MB  EWCA Civ 3093), and the Court of Appeal’s guidelines in both Re MB and St George’s NHS Trust v S; R v Collins and others, ex parte S  3 All ER 673, CA,  EWCA Civ 1349, addressed the emergency situation.
5. Where is AA’s voice? As with some of the previous cases above, and also Re S (Adult Refusal of Medical Treatment)  4 All ER 671, there is a sense that AA is peripheral to the decision-making process, talked about but not involved or communicated with. This can be contrasted with the position of the foetus (as noted in 1 above). Under section 4 of the MCA 2005, AA’s wishes and feelings should be considered, and she should also be included in the decision as much as possible, section 4(4). It is unclear whether, if at all, this occurred. Indeed, there is no mention in the judgment of a best interests assessment under the 2005 Act being performed. It has long been established that best interests are more extensive than just medical interests (as in Re A (Medical Treatment Male Sterilisation) and Re S (Adult Patient: Sterilisation)  Fam 15, CA, and NHS Trust v MB, but the court here appears to focus purely on those interests and, included in that, the best interests of the foetus – to be born alive.
The second part of this note, which concerns the care of AA’s child (Re P (A Child)  EW Misc 20 (CC)), will be published on Monday 20 November 2013.
Sara Fovargue is a Senior Lecturer in Law at Lancaster. She researches in the areas of health care law and ethics, and family law. She has written widely in the field of health care law and ethics, including Xenotransplantation and Risk: Regulating A Developing Biotechnology, and has written on other non-consensual caesarean section cases including ‘Policing Pregnancy: Implications of the Attorney-General’s Reference (No. 3 of 1994)’ (1998) 6 Medical Law Review 265-296, with J. Miola, and ‘Re MB  8 Med. LR 217’ (1998) 20 Journal of Social Welfare and Family Law 427-437.
You can find out more about Sara’s research at: http://www.lancaster.ac.uk/fass/law/profiles/Sara-Fovargue