Judge: Mostyn J
Citation:  EWHC 4378 (COP)
Summary: The judgment in the ‘forced C-section’ case has now been published, and reveals what many suspected at the time of the media storm that we touched on in our December issue, namely that the facts were very far from those which were reported. As Sir James Munby P has noted, however, in the decision upon reporting restrictions in the proceedings relating to the child  EWHC 4048 (Fam):
“43. … there are two points that require to be addressed with honesty and candour. Both relate to the fact that, when this story first ‘broke’ on 1 December 2013, none of the relevant information was in the public domain in this country.
44. The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?
45. The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of |High Court Judges; it applies also to the judgments of Circuit Judges.
Returning to the proceedings in August 2012 before Mostyn J, however, it is of some note that – for the first time in the editors’ recollection – the transcript of the ex tempore judgment was accompanied by the transcript of the urgent application hearing itself. Readers will recall from our coverage in the previous issue that the mother was Italian, with two previous children. We now know that she is (and can be named as) Alessandra Pacchieri. Ms Pacchieri had had problems with her mental health since 2007, and there were admissions to psychiatric hospitals in Italy. As of 2011, her two children were in the care of their grandmother, and proceedings relating to the children were on foot in 2012 when the mother came to England. The woman, who suffered from bi-polar disorder, became very unwell during a work-related visit to England in 2012, a visit she undertook whilst pregnant. On 13 June 2012 she was detained under s.2 and subsequently s.3 of the Mental Health Act, and was profoundly unwell.
From the transcript and the judgment delivered at the hearing on 23 August 2013 (together with the unusual covering note drawn up by Mostyn J on 4 December 2013), the following further information becomes clear:
- It was an urgent application first made at 16:16 on 23 August 2012 by the NHS Trust with responsibility for Ms Pacchieri, supported by the evidence of a consultant obstetrician and the patient’s own treating consultant psychiatrist, seeking a declaration and order that it would be in her medical best interests that Ms Pacchieri, who had undergone two previous elective caesarean sections, but was incapable of making decisions about the birth method, to have this birth, the due date of which was imminent (she was 39 weeks pregnant), in the same manner on the next day;
- The primary risk identified by the NHS Trust was that of uterine rupture with a natural vaginal birth. Mostyn J identified the risk – put at as much as 1% – as ‘significant.’ Mostyn J also took into account that he considered that it would be in the ‘mental health best interests’ of the mother that her child be born alive and healthy, and that it not be exposed to risk during his or her birth;
- In holding that it was in AA’s best interests to undergo a Caesarian section (including by use of reasonable force if required), Mostyn J considered that he was applying conventional principles set down by the Court of Appeal in the case of Re MB (Medical Treatment)  2 FLR 426;
- Essex County Council were not represented before the Court, but it appeared that the Trust understood that the Council intended to invite the police, under s.46 Children Act 1989 to exercise their powers to remove the child into police protection for a period not exceeding 72 hours, as the Act provides, on the basis that the police would, by virtue of information supplied by the local authority, have reasonable cause to believe that the child, once born, would be likely to suffer significant harm. The Official Solicitor raised his concerns via Counsel about this course of action; Mostyn J agreed that it would be ‘heavy handed,’ and instead required that the local authority be advised by way of preamble to the order made to make an application on notice to the Official Solicitor to him for an interim care order. It appears that, in fact, an interim care order was applied for in the Chelmsford County Court on 24 August, immediately after the baby was born; Mostyn J then consented to the application being dealt with by the relevant Circuit Judge in Chelmsford. The proceedings concerning the baby (known thereafter as ‘P’) are beyond our remit to cover.
Comment: In Sir James Munby P’s judgment upon the reporting restrictions application noted above there appears the following slightly Delphic passage (at paragraph 22) in relation to the Court of Protection proceedings: “there is interesting comment by various legal commentators on the blogosphere, including suggestions that some of the orders made might be vulnerable to legal challenge. Since these matters may yet require judicial determination I say nothing more.”
It is perhaps too easy to identify in retrospect matters that should have been done differently, and we would emphasise that there is nothing in the judgment or the surrounding material that necessarily suggests that the decision of Mostyn J would be appealable on the basis set down in Aintree: (i.e, following Re B (A Child) (Care Proceedings: Appeal)  UKSC 33,  1 WLR 1911) that, where a judge of the Court of Protection has correctly directed himself as to the law, an appellate Court can only interfere with his decision as to the evaluation of best interests if satisfied that it was wrong). Nonetheless, we would identify the following matters of significance and/or possible concern by way of practice points for the future:
- To the best of our knowledge, this is the first reported (or – to be more precise – published) judgment of the Court of Protection approving a caesarean section since the coming into force of the MCA 2005. It is therefore of some importance in confirming (albeit at the end of what was clearly a short hearing arranged at very short notice) that the principles set down in Re MB (Medical Treatment)  2 FLR 426 remain good law. As a side-note, another similar case was decided very shortly after the media storm broke in this case – as yet, no transcript is available but – perhaps unsurprisingly in the circumstances, the hearing and judgment itself were reported contemporaneously; we will note this further when a transcript is published;
- In our previous issue we identified one point that Alex – in particular – was interested to see discussion regarding in the judgment, namely the fact that Ms Pacchieri was at the material time clearly habitually resident in Italy but yet being the potential subject of an order of the Court of Protection. Nothing in the judgment in JO v GO discussed elsewhere in this newsletter casts doubt upon the proposition that Ms Pacchieri was habitually resident in Italy, and in the cold light of day, it is perhaps of some note that there was apparently no discussion during the hearing of whether the Court had jurisdiction at all to make an order of the nature sought. By virtue of paragraph 7(1)(c) of Schedule 3 to the MCA 2005, the Court of Protection only has jurisdiction on the basis of presence alone if the matter is ‘urgent.’ This word derives from the 2000 Hague Convention on the International Protection of Adults, mirrored by Schedule 3. The approach of the Court of Protection has been to seek to interpret the provisions of Schedule 3 compatibly with the Convention, and to have to regard to the Explanatory Report thereto (see Re M  EWHC 3590 (COP)). From that Explanatory Report, it is clear that ‘urgency’ for purposes of the Hague Convention, and hence Schedule 3, should be interpreted strictly in the medical context. Ms Pacchieri’s position as at the time that it came before the Court might quite properly be described as urgent given that the procedure was scheduled for the next day (although this gives rise to a separate question discussed below); in future cases, we would perhaps expect to see the judge recording in a preamble that they were satisfied that they had jurisdiction on the basis that paragraph 7(1)(c) of Schedule 3 to the MCA 2005 was met;
- Perhaps more troublingly, it is not clear on the face of the transcript of the judgment why it was that the application was only made the day before the procedure was scheduled. After all, it was presumably evident to the NHS Trust – who had been caring for Ms Pacchieri for several weeks under the provisions of the MHA 1983 – that (a) she was in the later stages of pregnancy; and (b) she had had at least one previous Caesarean section. Given that the primary basis upon which the procedure was said to be in her best interests was the risk of uterine rupture if she underwent a vaginal birth following her previous Caesarean sections, it would therefore on one view seem rather obvious that the Trust should have moved with greater speed to bring the matter to Court in advance of the procedure. The Court of Appeal in Re MB and – even more emphatically – in St George’s Healthcare NHS Trust v S  Fam 26 stressed the importance of bringing applications regarding Caesarean sections to Court in a timely fashion. Assuming (if such is a correct assumption) that the procedure had to take place on 24 August, and hence the proceedings could not be adjourned, the fact that the application was only issued the day before radically limited the ability of the Official Solicitor to take steps to investigate and (if appropriate) consult with Ms Pacchieri to obtain her views;
- Leading on from this, it is not entirely clear from the transcript whether the fact that Ms Pacchieri appears not to have been consulted in advance (and was not to be informed subsequently) was the result of a considered decision that such was not in her best interests. If it were – and it is quite possible to envisage why that might have been so – then one would perhaps have expected to see this recorded in the judgment. If not, then some potentially difficult questions arise as to whether the decision could be said to have complied with s.4(4) MCA 2005.
We do not comment further here upon the potential impact that this case (and the associated proceedings relating to Ms Pacchieri’s child) will have upon the reporting of proceedings before and the publishing of judgments of the Court of Protection, save to note that we understand that the draft Guidance upon transparency promulgated by Sir James Munby will be out early in the New Year; as matters stand, we would be surprised if it were to be watered down at all.
We also note, finally, that this is the second case to have been reported in recent months concerning a pregnant sufferer from bi-polar disorder. The first was Re SB  EWHC 1417 (COP), in which a sufferer from bi-polar disorder was found (in the face of the expert evidence) to have had capacity to decide to terminate her pregnancy. Such cases pose particularly difficult acute questions, not least because of the correlation (that was very clearly apparent in Re SB and may – we think – potentially be inferred from Ms Pacchieri’s case) between pregnancy, ceasing compliance with medication (in SB’s case out of a concern for the impact of the side-effects upon the foetus) and then an onset of severe symptoms. Ms Pacchieri’s case is extremely unusual legally because of its foreign element, but is not, sadly, altogether unusual from a clinical perspective. We venture to suggest that these cases can and should serve as prompts to professionals to consider better ways in which to assist women suffering from bi-polar disorder to make plans in advance to secure respect for their wishes in the event that their mental health deteriorates during the course of their pregnancy, whether by way of advance decisions or otherwise.