Last week the press reported the Court of Protection case where an NHS Trust was authorised to carry out a caesarean section on a 32 year old mentally ill woman. You can read a couple of those reports here and here.
I was pleased that such a case had been commented on almost immediately, and the reporter acknowledged that whilst this was a draconian step, it was on the basis that it was in the woman’s best interests. This is a notable shift in the language being used by reporters, particularly since the Court of Protection was accused of approving a baby to be forcibly removed from a womb of an Italian mother after it had authorised a caesarean section This also shows an improving understanding of the legal tests being applied by judges in making difficult decisions.
This improved reporting could be because cases are now being published where important and serious decisions are being made. I have discussed this issue before on this blog. Since I wrote that piece, the draft Guidance has come into force.
More Court of Protection and family cases will now be published with a view to increasing transparency and improve the public understanding of the difficult decisions being made. If the rationale behind the decisions is understood, this could dispel the myth that all decisions are draconian and made in secret.
I have just read the judgment of another case decided by the same Judge, at around the same time and on the same issue (whether an NHS Trust could be permitted, if necessary, to perform an emergency caesarean section on a mentally ill woman, who was refusing to cooperate with any efforts to prepare for labour and who, at 38 weeks, suffered a seizure and ruptured membranes).
I had initially thought that this might be the same case, with the press getting some of the details wrong, but on closer inspection, it was just a huge coincidence that Mr Justice Haydon determined two cases involving an application for forced caesarean section in the same week. The interesting difference is the hat that the Judge was wearing. The first case involved a straight forward decision of the Court of Protection in P’s best interests, but the second was not so simple. In my view, this judgment provides a clear summary of the current legal position in cases where an individual is detained under provision of the Mental Health Act (as was the woman in the second case) and an intervention involving a deprivation of liberty is sought.
I won’t set out the facts of the case in this piece as I encourage everyone to read it. The judgment succinctly identifies the facts, the concerns of the womanâ€™s family and professionals and the applicable law.
Forcibly imposing a caesarean section on an individual without consent involves a deprivation of liberty. It is not within the power of the Court of Protection judges to make decisions about this type of treatment to the extent that it deprives someone of their liberty when they are detained under section of the Mental Health Act (MHA), as was the pregnant woman in this case. Because she is subject to a detaining provision of the MHA she is “ineligible” to be subject of the deprivation of liberty provisions under the Mental Capacity Act (MCA). The Judge was unable to make decisions under the MCA and the correct way forward was to use the “inherent jurisdiction” of the High Court. Legal Jargon aside, the Judge explains this clearly in paragraph 21 of the judgment:
“21. It is necessary to add a few further remarks about the appropriate legal framework for this application, the Trust recognising that the treatment envisaged involves a facilitative deprivation of liberty.
The power under the Mental Capacity Act 2005 for the Court to make orders for AA’s welfare [the declarations sought under s.16(20(a) and 17(1)(d)] include the power to make an order that deprives her of her liberty, subject to the qualifications set out in s.16A, entitled ‘Section 16 powers: Mental Heath Act patients etc’. In short, a welfare order cannot authorise a deprivation of liberty if AA is ineligible to be deprived of her liberty under paragraph 17 of Schedule A1 of the MCA. That provision stipulates that Schedule 1A of the MCA applies for the purpose of determining whether or not she is ineligible.
The treating team view the obstetric care not as treatment for AA’s mental illness, which could be provided under the MHA, but as physical treatment. Paragraph 2 is the central provision in determining whether ‘P’ is ineligible. Because she is detained under s.2 of the MHA, AA falls within Case A of paragraph 2 as she is both subject to and detained under a hospital treatment regime.
In A NHS Trust v Dr A  EWCH2442 (COP), Baker J endorsed the view that “Case A is clear indication of the primacy of the MHA 1983 when a person is detained in hospital under the hospital treatment regime and it would seem that when it applies P cannot be deprived of liberty under the MCA in a hospital for any purpose.” (s.87) and held that force feeding (which was not treatment for P’s mental disorder) could not be ordered under the MHA or MCA. The inherent jurisdiction provided the route by which treatment in the patients best interest should be authorised. The Applicant Nhs Trust contends that the same analysis applies here. The Official Solicitor agrees and so do I.”
Under the “˜inherent jurisdiction” a High Court Judge is able to make a best interests decision on behalf of the patient and he agreed that if necessary, an emergency caesarean could be performed without the patient’s consent. He also gave guidance on the type of restrictions he would permit the Trust to use in carrying out that procedure.
There has been a run of cases concerning serious medical treatment, the interplay between the Mental Health Act and Mental Capacity Act, and the inherent jurisdiction of the High Court. Given the uncertainty around this issue recently, I believe this new analysis will provide a useful clarification for practitioners and individuals supporting those who lack capacity to consent to this type of serious medical treatment.
This is an area where we are receiving many more enquiries and we can advise if you have any concerns with these types of issues. Please contact Jess Flanagan for further information.