Mental health law briefing 203 – Mental health patient undergoes forced caesarean section
It is well recognised that the law does not give protection to the unborn child; this has had important implications for a number of cases that came before the Court in the 1990s, where pregnant women refused caesarean sections despite the risks to their unborn child.
In the case of St George’s Healthcare NHS Trust v S , a pregnant woman had refused advice and medical treatment for eclampsia and despite the opinion of doctors that a caesarean section was necessary to prevent damage to her unborn child she refused that procedure. The hospital responded by admitting her under the Mental Health Act (MHA), and a caesarean section was performed without Court authorisation, supposedly with the authorisation of the MHA. In that case, the Court held that there were no grounds for the patient’s admission under Section 2 of the Mental Health Act, and her detention under the Act was held unlawful. The reason for her detention, although potentially lifesaving, was not related to her alleged mental disorder.
The circumstances of the St George’s case contrast with a much-publicised case that recently came before the Court of Protection, concerning a pregnant patient who we now know as Alessandra Pacchieri. Ms Pacchieri suffered from bipolar disorder and had become very unwell during a work related visit to England, whilst she was pregnant. On 13 June 2012, she was detained under Section 2, and subsequently Section 3, of the Mental Health Act; the case attracted some “shock horror” headlines, but much of the reporting in the media contained inaccurate information, the relevant details had not then been in the public domain.
Whilst the patient was detained under the Mental Health Act, the Court considered the issue of whether the caesarean should be carried out on Ms Pacchieri in terms of the criteria in the Mental Capacity Act 2005.
The Court was faced with an urgent application by the NHS Trust, who was proposing to undertake a caesarean section. The application was supported by clear evidence of a Consultant Obstetrician, and the patient’s own treating Consultant Psychiatrist, and an order was sought that it would be in the medical best interests of the patient, who had previously undergone two elective caesarean sections, to have the operation, her due date being imminent (she was 39 weeks pregnant). The interests of the patient were represented by the Official Solicitor.
The patient suffered from a significant mental disorder, psychotic in nature; the evidence from the medical witnesses was that she suffered from psychotic episodes and delusional beliefs. The Official Solicitor made it clear that just because she was detained under Section 3 of the Mental Health Act, it did not necessarily follow that the patient lacked capacity within the terms of the Mental Capacity Act 2005. However, there was evidence that she did lack capacity.
Under Section 1(5) of the Mental Capacity Act 2005, the Judge stated that he needed to make a decision in the patient’s best interests. The Judge referred to the evidence of the patient’s obstetrician concerning the risks, given that the patient had had two caesarean sections previously; he considered that the patient should have an elective/ planned caesarean in order to avoid not only the risks to the child, but the risk of a ruptured womb for the patient herself. There was a significant risk of such a ruptured womb, perhaps as much as 1%, were she to have had a natural vaginal delivery. It was therefore clear in the evidence from the obstetrician that it was in her best interests that she should have the procedure. This was also supported by the evidence given by the psychiatrist, supporting the obstetrician’s view that it was in her best interests to undergo the caesarean section.
The Judge commented that he considered that the patient’s best interests accorded with her mental health best interests that dictated that her child should be born alive and healthy, and any risks should be avoided. He concluded that if looked at from her point of view, there was a significant mental health advantage in her unborn child not being exposed to risk during the birth. In those circumstances, the Judge concluded that the procedure proposed was manifestly in the interests of Ms Paccieri.
The Judge made the order authorising the planned caesarean in accordance with the patient’s best interests, and authorising the use of reasonable restraint in order to achieve the operation safely and successfully.
It is perhaps surprising that the application to the Court was made on an urgent basis, given that one would have thought that it would have been clear to those who had been treating the patient for some time that this problem was going to arise! The Court of Protection has previously emphasised the importance of bringing applications of this kind to Court in a timely manner. It is also unclear from the Judgment whether any attempt was made to seek the patient’s views about the caesarean, in accordance with the requirements of Section 4 of the Mental Capacity Act that requires a person who lacks capacity to be assisted to participate as freely as possible in any decision affecting that person.
It is suggested that if mental health professionals are involved in the treatment of a heavily pregnant patient who may require a caesarean section, consideration should be given to ascertain their views on the proposed procedure, and ascertain whether the patient has made any relevant advance decision that should be taken into account. If it is thought that the Court’s authorisation may be required then legal advice should be sought without delay.
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This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.