LONDON, December 9, 2013 (LifeSiteNews.com) – The British press exploded last week with the story of a woman who, at 39 weeks pregnant and on the orders of a court, was forcibly anesthetized and had her child removed by C-section and seized by social services. The woman, a visiting Italian national who receives treatment for bipolar disorder, had been committed to a psychiatric hospital after a “breakdown” that she suffered when she either forgot or stopped taking her regular medication.
It has since come to light that, although the court says the woman was legally represented, neither she nor any member of her family were consulted or even informed of the decision in advance. The surgery took place the day after the court issued its decision, in a closed courtroom that is not open to public scrutiny.
Under the terms of the Mental Capacity Act 2005, the secretive Court of Protection is authorized to make such decisions and responded to the request from doctors who contended it would be in her “best interests” if the child were forcibly removed.
After the surgery, the woman, who cannot be named for legal reasons but was designated as “AA” by court documents, was deported back to Italy without her newborn daughter. Social services in Essex seized the child, who is now 15 months old, against the advice of the court, and are still refusing to return her to her family. Essex authorities, the Court of Protection said, applied instead to District Judge Parnell of the Chelmsford County Court to begin “care proceedings” the day after the child was born.
The Court of Protection, bowing to pressure from Parliament and the media, has taken the unusual step of publishing a transcript of the hearing in which the woman was declared incapacitated. Mr. Justice Mostyn wrote in a forward to the document that he had allowed its release “so as to inform and clarify recent public comments about this case.”
Justice Mostyn ruled that, having stopped taking her medication, the woman was not capable of making decisions in her own best interests. AA reportedly suffered a panic attack while visiting Britain on a training course with Ryanair and the court was told by psychiatrists that she was suffering from a “schizophrenic disorder, which is psychotic in nature” and causes “psychotic episodes and delusional beliefs.”
“In those circumstances it seems – and I hope very much that restraint will not be necessary – that the procedure that is proposed is manifestly in her interests,” Mostyn wrote.
Justice Mostyn added that while the local social services authority was not formally represented at the hearing, he nevertheless “offered advice… that it would be heavy-handed to invite the police to take the baby following the birth.”
In his official ruling, the judge noted “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.”
The incident is being raised in Parliament by John Hemming, a Liberal Democrat MP who called it a case to “shock people out of their complacency about the corrupt practices in the family court.” Hemming said he has since contacted the Italian Embassy in London seeking legal assistance for the woman and her family.
Hemming told The Independent, “I think this has a fair chance of being the worst case of human-rights abuse I’ve ever seen. She wasn’t treated as a human being.”
“In previous cases the Polish, Czech and Slovak embassies have all been very supportive of their citizens facing unjust proceedings in the family division in England and Wales,” Hemming said.
“The Italian authorities have argued that the mother in Italy should have been allowed to make her own decision and not have a caesarean. However, it appears that she was not even allowed to know that this was proposed and express a view,” he said.
On his blog, Hemming published comments from an Italian court which said in October 2013 that it “cannot recognise the ruling of the English court because it is contrary to Italian and international norms of public order.”
Hemming has also demanded of the Essex social services office why “no attempt was made to allow the father to participate in the court case” and why the child’s grandmother, while she “is deemed capable of looking after two children … could not look after the third.” In the court’s document, Mostyn only recommends a hearing after the birth to decide whether to impose “an interim care order under section 38 of the Children Act 1989.”
“On that occasion the mother would be represented by the Official Solicitor and debate would take place as to whether the child’s welfare demanded his or her removal and if so when and on what terms.”
The consulting obstetrician, citing medical guidance from the Royal College of Gynaecology, had advised the court that the woman, after a previous C-section, faced a 1% chance of uterine rupture if she were to give birth vaginally. This information, it was later revealed, was not based on an examination of AA, but was the standard medical risk assessment given to all women in similar circumstances deciding on birth methods, many of whom opt for and safely achieve a natural birth.
The request, Justice Mostyn wrote, was “supported by the clear evidence of a consultant obstetrician and the patient’s own treating consultant psychiatrist, seeking a declaration and order that it would be in the medical best interests of this seriously mentally ill and incapacitated patient, who had undergone two previous elective caesarean sections, to have this birth, the due date of which was imminent (she was 39 weeks pregnant), in the same manner.”
The Court of Protection, has come under fire in recent years for its secrecy and for issuing judgments without public scrutiny or chance of appeal. Created under the Mental Capacity Act 2005 – that pro-life advocates have said also established the right of doctors to euthanize patients – the Court of Protection issues judgments on medical treatment and care and the property of adult patients deemed “mentally incapacitated.” Numerous cases have come to the media in which subjects of the court have complained that they have been treated without consultation or legal representation.
AA, Justice Mostyn said, had been represented “by the Official Solicitor who instructed a Queen’s Counsel on her behalf.” However, Hemming said he is worried that at no time was the woman herself or her family in Italy consulted. He wrote that he remains “concerned” at the way mental incapacity is decided in Britain, noting that “it does not appear that she was told that [the C-section] was being proposed.”
“If it is true that she had previously elected to have a Caesarean then it sounds odd that she was not asked on this occasion, but instead driven through a legal and medical procedure in which she had no input,” he said. “I remain worried about how mental capacity is removed and it does not appear that the representative of the official solicitor who was ‘representing her interests’ actually spoke to her.”
Hemming also noted the case of Sarah Matthews, a British mother who has been ordered by Justice Mostyn not to speak to the press about her case. Matthews has submitted a petition to Parliament to ask for an appeals process to be put in place by people the Court of Protection has declared mentally incapacitated.
The petition states that Matthews’ solicitor, “without having met or being formally appointed” and “merely on reading documents created by London Borough of Sutton applied to the court to have her mental capacity to instruct a solicitor removed because the barrister believed she was subject to querulous paranoia.”
“Her solicitors Russell & Co informed her prior to her meeting her barrister that they had jointly decided that she did not have capacity. Furthermore the solicitors refused to be instructed at this point,” the petition’s Parliamentary record in Hansard says.
Matthews contacted Hemming who put her in touch with a lawyer who specialized in such cases, and the previous declaration of incapacity was reversed, but not before Matthews had spent £3150 in legal fees, which Legal Aid then refused to pay. Matthews’ petition says that she is still being refused access to her legal files by the London Borough of Sutton. “Records appear to have been altered with the intention of preventing disclosure under s77 of the Freedom of Information Act and without these she is unable to correct inaccurate information held.”
Matthews’ petition complained to MPs that “there is no legal support for those people who wish to argue against a removal of capacity and believes that there is a conflict of interest when legal advisors can apply to remove the capacity of their own client whilst retaining the matter when a litigation friend is appointed.”
She said it is “difficult to believe” what can happen “when a litigant’s own legal advisors start acting against a litigant until they have experienced this.”
Hemming noted that the diagnosis of “querulous paranoia” is not found in medical lexicons but is a legal expression for someone who does not trust “the system.” “Well frankly after the things that go on I don't trust the system,” he wrote.
“The petition shows how the deck is stacked against people who wish to keep their rights to make decisions.”