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Family Law

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Court of Protection Practice and Procedure Conference 2016

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10 DEC 2013

ENFORCED CAESAREAN/MENTAL CAPACITY: Re AA (Mental Capacity: Enforced Caesarean) [2012] EWHC 4378 (COP)

(Court of Protection, Mostyn J, 23 August 2012)

The Italian mother visited the UK while heavily pregnant. She had a history of mental health difficulties and suffered from bipolar disorder but was inconsistent in taking her medication. While in the UK she experienced a sharp decline in her mental health, necessitating detention under s 2 and later, s 3 of the Mental Health Act 1983.

After 5 weeks' detention the NHS Trust applied to the Court of Protection for a declaration that it would be lawful and in the woman's best interests to deliver the baby via caesarean section. Medical evidence of a consultant obstetrician and the woman's treating psychiatrist was supportive of the application particularly as the mother had undergone two previous elective caesarean sections and that she was at risk of uterine rupture if she had a vaginal delivery.

The case fell squarely within the guidelines of Re MB (Medical Treatment) [1997] 2 FLR 426. The interests of the unborn child were of no concern of the court as it had no legal existence until birth. A decision had to be made within the parameters of the Mental Capacity Act 2005.

It was accepted by all parties that the mother lacked capacity within the terms of s 2(1) of the Mental Capacity Act 2005. In circumstances where the mother's medical and mental health best interests would be met by a caesarean being performed in addition to the fact that it would be in her best interests for the child to be born alive and healthy, a declaration was granted.

Given the media interest in the proceedings Mostyn J published a full transcript of the proceedings which included consideration of the local authority plans following the birth. He advised that it would be heavy handed for the police to remove the baby at birth under their protective jurisdiction and rather an application for an interim care order should be made with the mother represented by the Official Solicitor.


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