It was overridden, presumably because she lost capacity. For good and well-explained medical reasons.
You clearly haven't read the linked blogs.
I will post the key elements here:
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
A post which is about caesarean without consent
December 4, 2013
‘I might, if it is published, deplore Mostyn J’s reasoning about the mother’s best interests or her capacity…’
Showing uncanny prescience Mostyn J’s judgment and the transcript of the case of Re AA have now been published and I deplore them (warning pdf).
I wanted them to be better than this. But the judgment does not really explain how the test of capacity in s. 2 Mental Capacity Act applies to AA and reading the transcript my suspicion is that he has not assessed AA’s capacity properly, and may even have confused it with her best interests.
What did the judge know at the point he made his judgment?
AA was detained in hospital under s.3 of the Mental Health Act. She had a ‘schizophrenic disorder which was psychotic in nature’, and she was experiencing delusions.
She had had two previous births by caesarean section increasing the risk of a uterine rupture in this pregnancy to something close to 1%.
At the time of the hearing she was 39 weeks pregnant and it was proposed that the caesarean be performed the following day.
Her doctors favoured a planned caesarean performed under a general anaesthetic because they feared that if she was allowed to go into labour spontaneously she might lie about the onset of labour and interfere with efforts made to help her. Planned caesarean would allow them total control of the process and thus make the process maximally physically safe.
The finding of lack of capacity
In the judgment Mostyn J. tells us that he finds AA lacks capacity ‘within the meaning of s.2(1) MCA. But s.2(1) MCA only tells us that for a person to lack mental capacity in English law they must have a ‘an impairment of, or a disturbance in the functioning of, the mind or brain.’
AA certainly met this requirement. But the judgment does not tell us why she met the further requirements of being unable to make a decision under s.3 MCA. To be unable to make a decision a person must be unable to understand, retain, use or weigh or communicate their decision even after all necessary practical assistance has been provided to them. The judgment contains no discussion of what efforts have been made to discuss birth planning with AA, nor of whether she understands the consequences of refusing a caesarean section.
This does not mean AA had capacity at the time. Only that the judgment does not communicate that she did not.
The finding that a caesarean was in AA’s best interests
He further fails to apply the best interests test in s.4 correctly. He correctly identifies that the interests he is meant to take into account are primarily those of the mother and not those of the child who is, as yet, unborn. This is clearly a difficult task since in late pregnancy the interests of most women are intimately intertwined with those of their baby. There is a suggestion this was true for AA, because it is recorded in the transcript that she wants to see and hold her baby after it is born. Nevertheless the position in law is that we cannot start from the position of health baby = happy mother and work backwards to establish what the mother’s interests are.
We can however, identify in some cases that the mother’s best interests will prospectively be achieved through a healthy delivery and take that into account when making a best interests assessment. This is true when giving birth to a healthy child will be critical to the mother’s mental health for example. Unfortunately, Mostyn J. places a high value on this point but fails to consider any other evidence concerning the mothers past wishes, feelings, beliefs or values. Nor is any evidence from her family concerning her views on childbirth cited. Of course, this may not have been available, but its absence should have been noted and strongly regretted since it makes the decision reached under s.4 MCA largely artificial.
The actual best interests assessment to be reached here was a subtle one. Vaginal birth after caesarean is a normal practice and the risks of uterine rupture cited in the judgment are those given in standard literature given to women considering this. So if AA was refusing a caesarean this did not by itself indicate anything amiss. Many women with capacity with a history of previous caesareans choose to give birth vaginally every day. The case also reinforces the view that adults lacking capacity are not allowed to make the same risky decisions that are permitted to the rest of society.
As Lucy Series predicted, if AA had been present a better judgment might have been reached. There might have been practical difficulties in securing the physical presence of a woman with serious mental distress, currently detained who was also 39 weeks pregnant at this hearing. But the sheer absence of her voice in the decision being reached about her life is utterly inexcusable. We must do better than this.
Finally, the thing that utterly baffles me about this judgment is Mostyn J’s objection to the placement in a Mother and Baby Unit, which is what her treating clinician had recommended and which would have been by far the best option for her since it would have respected the one wish we know her to have had – to have contact with her baby. I cannot make head nor tail of paragraph 7 of the judgment and can only identify uncharitable (to Mostyn J.) interpretations to place upon it. If anyone could help me out I’d be grateful.