One Flew Over The Hemming’s Nest

Before getting into this I should explain that this particular article was to have been on the subject of the so-called ‘forced caesarian section’ case, which has of course been one of the more prominent news stories of the last few days, and the article was to have focussed on a number of matters I’ve been discussing on Twitter with various people, notably The Heresiarch, in regards to what some may see an discrepancies and/or inconsistencies in the information contained in the two legal rulings relating to this case that have been published to date*.

*See Re: AA: Approved judgment of Mr Justice Mostyn (PDF 99kb) and P (A Child) [2013] EW Misc 20 (CC) (01 February 2013)

In regards to the role played by Christopher Booker and John Hemming MP in pushing this complex and difficult case into the media spotlight I had intended only to link to this exemplary article by Carl Gardner over at Head of Legal, which covers all the relevant ground in this case, including the glaring factual discrepancies between what has been widely reported in the media and the facts as set out in the above rulings, in addition to offering a number of necessary and important reflections on in previous cases which Booker and Hemming have chosen to involve themselves.

Than was the plan up to the point that, out of simple curiosity, I decided to call in at John Hemming’s personal blog for the first time in ages, just to gauge his reaction to the publication of Mostyn J’s ruling and the transcript of the proceeding that led to it.

What I read, as you’ll see very shortly, angered me sufficiently to engender a change of plan.

The careful unpicking of a number of key issues and questions arising from the content of the two published judgements in this case will be the next article to appear at the Ministry. For this one I’ll will be mostly ripping John Hemming yet another new arsehole…

…people of a nervous disposition should go find something else to read.

So here’s Hemming’s brief commentary with, of course, my own annotations

[Engaging Fisk Mode]

The judiciary have now published the judgment in respect of the Caesarean. It is here.

I’ve already linked to the judgement above.

I remain concerned that it does not appear that she was told that this was being proposed.

If you’ve read both judgement you’ll know that contrary to the claim made by Christopher Booker is the Telegraph article which kicked off this entire story, the woman at the centre of this case was not admitted to a psychiatric hospital for assessment under s2 of the Mental Health Act 1983 because she has ‘something of a panic attack’ but because, when the police attended her hotel room, they found her to be in the grip of a psychotic episode in which she was experiencing, in the words of Judge Newton, ‘very intrusive paranoid delusions’. [Para 7]

She was, as Newton J also observed, ‘profoundly unwell’. [Also Para 7]

What we don’t know, of course, is the exact nature and extent of those delusions. This information will undoubtedly be recorded in her medical records and will have been available to the court but, for obvious reasons, they have not and will not be made public.

In the circumstances, she may very well not have not been told that the NHS was considering an application to the Court of Protection for permission to deliver her child by planned caesarian section but, given her mental condition at the time there are likely to a number of very good reasons for this. At the very least her state of mind may have been such that a discussion of her delivery options would have an entirely futile exercise as she was in no fit state to understand what she was being told let alone make any choices about her treatment options.

However, given the nature of her condition there would also have been a significant risk that any discussion about the impending birth of her child, her delivery options and the possibility of undergoing a caesarian section might very easily have been incorporated into her delusions in a wholly unpredictable and uncontrollable manner that might easily exacerbate her condition.

Or, to use a somewhat crude and stereotypical analogy purely for illustrative purpose, if you were treating a patient who was suffering for the delusion that they were constantly being watched or spied upon by the government/men in black helicopters/aliens – whatever – the one thing you absolute wouldn’t do is tell them that you intend to use, or indeed have been using, a hidden CCTV camera in their room to monitor their condition. It’s just not going to help their condition one iota, in fact such a conversation would almost certainly leave our hypothetical patient in an even more agitated state than they were to begin with.

You don’t need to be an expert in psychiatric medicine to realise that scaring the living bejeebus out of a patient who experiencing powerful paranoid delusion is an absolutely fucking terrible idea, yet this is clear a concept that Hemming either finds impossible to comprehend or simply does not wish to contemplate because it would clearly, if not fatally, undermine his own position on this case.

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.

At this point, we know nothing at all from the judicial paperwork about the exact circumstances under which the woman’s two other children were beyond the fact that they were both born by caesarian section. These may very well have been planned elective procedures but its also possible that one of both may have been non-elective emergency procedures carried out due to complications arising in childbirth.

[Correction: Mostyn J’s prefatory note to his ruling and the hearing transcript, dated 4 December 2012, indicated that both previous caesarian sections were elective. That said, whether this was simply matter of personal preference or whether there was any specific clinical reason for these procedures is not made explicit.]

That said, the point already made about this unfortunate woman’s mental state at the time remains entirely valid. There is nothing the least bit odd about not asking the woman whether she wanted the delivery of her child to undertaken by caesarian section or not if she was no fit state make such a decision or, most especially, if there was a substantial risk that any such discussion might actually make her condition even worse than it already was.

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.

No, it would appear that the representative of the Official Solicitor who appeared before Mostyn J deferred to the considered professional judgment of the psychiatrist who had been treating the woman since her admission and the obstetrician who had carried out a thorough assessment of both her own physical condition and that of her then unborn child and concluded, based on the clinical evidence took the view that his duty to act in the best interest of his client would be best discharged be not opposing the application for permission to carry out the caesarian section:

This is from the transcript of the hearing before Mostyn J in which Mr Lock acts as the representative of the official solicitor.

MR. JUSTICE MOSTYN: Who represents her in the mental health proceedings, as a matter of interest? Some advocate, I expect.

MR. LOCK: My Lord, I am sure a very responsible and experienced mental health solicitor, but I am not able to assist your Lordship. We invite your Lordship to approach it in this way. First of all the question is: does she have capacity? She plainly does not, because there is evidence of delusional beliefs. We have thought carefully as to whether we ought to ask your Lordship to adjourn this so that we can get further into capacity, but given that this is the treating psychiatrist and she has been in his care since at least June of this year, there appears to be evidence, therefore, based on a fair amount of background information; not like a psychiatrist who has seen a patient on one occasion and just gives a view where there is always a concern that there may be some background that the psychiatrist was not fully aware of. This appears to be a reasoned report based on a good knowledge of the patient. Therefore we do not propose to ask your Lordship to adjourn.

There then follows a somewhat technical discussion on the correct interpretation and application of sections 1(5) and 1(6) of the Mental Capacity Act before Mr Lock goes on to add:

MR. LOCK: My Lord, that is the point I was going to come on to. In fact, what is in her best interests may not be the least restrictive because in this case it appears to us that the psychiatric evidence on page 2 of Dr. Adimulam and the evidence of the obstetrician is that it is in her best interests, if she is going to have a caesarean, for it to be in a planned way with the right amount of staff to support her and the right structure, rather than being done at a time that nobody could predict (some time over the next two or three weeks) when you have absolutely no idea whether you are going to have the right staff or not, and whether it is going to be safe or not. So, my Lord, to that extent, even though it is not at first blush the most restrictive option, it would appear, on the evidence, to be the option that is in her best interests.

I should point that the alternative to a planned c-section, which was discussed during the hearing, was to allow the woman to attempt to give birth naturally with doctors stepping in to perform an emergency c-section should the birth run into difficulties. Not withstanding Mr Lock’s sensible comments about staffing requirements the key reasons why the natural birth option was rejected were that there would be both a significant risk to mother of a uterine rupture due to her previous children having been delivered by c-section and a substantial risk that, were the woman to become severely distressed or agitated during the birth, this would interfere with the doctor/midwife’s ability to monitor the progress of the birth, placing both the mother and child at risk of serious harm should any complications arise.

One thing that is plainly evident in the ruling and hearing transcript in Mostyn J is that the best interests of the woman were absolutely the paramount consideration of all the medical professionals involved at this, and indeed the paramount consideration of the court.

One would think that if she had been asked she would have agreed given that she agreed previously.

She may very well have done had she have been in any fit state to be consulted on the matter, but as I think I’ve already safely established, Hemming’s idle speculations on what this unfortunate woman may or may not have done had she actually possessed the capacity to determine her own best interests at the time, are of no relevance whatsoever and serve to illustrate one thing, and one thing alone –

– that even with all the evidence staring him in the face, Hemming still hasn’t got the first fucking clue what he’s talking about and, indeed, seems to be entirely incapable of demonstrating even the least bit of understanding of the woman’s condition at the time, hence his next, utterly asinine and – frankly – wholly delusional remark.

Reading between the lines of the judgment the main issue appears to have been that she did not want to give birth in England. (understandably in retrospect)

It doesn’t matter whether you read the lines of the judgement or between the line or above them or below them or whether you read them forwards or backward or even whether your choose to translate them into Bantu and perform them at Glyndebourne to the tune of Wagner’s Ride of the Fucking Valkyries, the MAIN ISSUE in this case is the fact that the woman was admitted to a psychiatric hospital in the grips of psychotic episode in which she was experiencing intrusive paranoid delusions to the extent that she lacked the capacity to make any kind of decisions in her own best interests.

Everything else, at least at this stage in the case, proceeds from the fact that she was ‘profoundly unwell’ and there is absolutely nothing in Mostyn J to indicate that the woman had expressed any views whatsoever on whether or not she wished to give birth in England nor anything to indicate that she was even capable of expressing such an opinion at the time.

What the Mostyn J’s ruling and the accompanying hearing transcript demonstrate is nothing more nor less than the fact that entire ‘forced caesarian’ narrative that Hemming and Christopher Booker have busily promoting for the last few days in demonstrably false in every single key detail, from the circumstances under which this unfortunate woman came to be admitted to a psychiatric hospital for assessment and then detained for treatment under s3 of the Mental Health Act to the reasons that permission to deliver her child by way of a planned caesarian section was sought from and granted by the Court of Protection.

Anyone else in such a situation would have the good grace to simply admit that they had got it badly wrong but evidently Hemming’s own ego is such that he cannot even manage contemplate such a simple and obvious admission.

There are a number of questions about the details of the judgment. (such as what her condition actually was, whether she was being treated for the wrong disorder and the true risks of the situation) All of these issues will take some time to sort out. The wrong disorder is the most concerning as this would be the reason why she would not have been recovering (and did recover in Italy) because the treatment would have made her worse.

I don’t want to get into this issue in too much detail here, as this is something I will be exploring at some length in my next post but I feel I should clarify that, having been admitted to an NHS psychiatric hospital in the throes of a psychotic episode in which she was experiencing intrusive paranoid delusions, the hospital’s preliminary diagnosis of the woman’s condition was that she was suffering from a schizophrenic disorder which was psychotic in nature, and given that this was made on the basis of the woman’s observable condition at the time and in the absence of her personal medical records and history, which would of course have been held by her doctor(s) in Italy, this was a perfectly reasonable diagnosis for the hospital to arrive at, as may become clear from this basic guidance on the diagnosis of what now appears to be her actual condition, bipolar affective disorder.

The essential feature of Bipolar I Disorder is a clinical course that is characterized by the occurrence of one or more Manic Episodes or Mixed Episodes. Often individuals have also had one or more Major Depressive Episodes. Episodes of Substance-Induced Mood Disorder (due to the direct effects of a medication, or other somatic treatments for depression, a drug of abuse, or toxin exposure) or of Mood Disorder Due to a General Medical Condition do not count toward a diagnosis of Bipolar I Disorder. In addition, the episodes are not better accounted for by Schizoaffective Disorder and are not superimposed on Schizophrenia, Schizophreniform Disorder, Delusional Disorder, or Psychotic Disorder Not Otherwise Specified.

As should hopefully be apparent from this information, her main symptoms at the time – intrusive paranoid delusions – are potentially diagnosis of several different psychiatric conditions and it only by way of evaluation of her condition over a significant period of time, or with the assistance of a full medical history to provide that information, that it would be possible to positively identify her condition as being bipolar affective disorder and not one of the other conditions listed above.

In the circumstances, the woman presented with consistent with several different conditions but which are most often seen in patients with a schizophrenic disorder, hence this became her initial diagnosis as without further detailed information from her medical records or long term evaluation, this would be consider the most likely reason for her experiencing a psychotic episode.

Crucially, at this stage, the uncertainty surrounding her diagnosis would have had no impact whatsoever on her treatment. Irrespective of whether or not the cause of a psychotic episode is attributed to schizophrenia or bipolar disorder or any of the other condition listed above, the standard treatment for psychosis is the same and she would be prescribed anti-psychotic medication.

However, what may very well have created complications in this case is the fact that the woman was also pregnant and this may easily have served to limit the treatment options open to the hospital if the drugs they would normally prescribe to bring her psychosis under control are contraindicated for use in pregnancy. There’s nothing in papers released so far to indicate that this was the case but equally also nothing to indicate that it wasn’t, but it remains a possibility and may help to explain why she ultimately spent around four months in hospital in the UK before she was transferred, at her own request, back to Italy.

For now I’ll leave it there on this issue, as it is something I intend to delve into in more detail in my next post, but to finish up what I will say is that the issues surrounding the diagnosis and treatment of her condition are considerably more complex than the simply binary presented by Hemming in regards to the extent of her recovery in the UK relative to her progress after she returned to Italy while cautioning you, again, that Hemming has in the past demonstrated on numerous occasions that his personal knowledge and understanding of mental health issues is both woefully deficient and riddled with crude biases and, as such, should not be relied upon without independent corroboration from an informed and, preferably, suitably qualified source.

After all that we come, finally, to Hemming’s closing remarks, which supplied the motivation for this article because of their crass insensitivity.

However, the question as to how people who are deemed “too stupid” to make decisions for themselves are treated in the process of deciding whether or not they are indeed “too stupid” (ie lack capacity) or indeed what the decision should be remains open.

For Hemming to characterise the complex issues that the Court of Protection, and indeed the Family Court Division, as a matter to deciding who may or may not be ‘too stupid’ to make decisions in their own interests, even for rhetorical purposes, is a course of action that is not only dishonest in the extreme but also utterly beneath contempt.

If it is not already patently obvious, this is not a case in which the intelligence of woman at the centre of it is, or ever has been, an issue.

The temporary loss of capacity that led to her being hospitalised and which eventually compelled an NHS Trust to seek the leave of the Court of Protection to perform a planned caesarian section is due not to lack of intelligence on this woman’s but to a severe psychiatric condition over which she has no control, other by means of taking medication, and one which, if left untreated, leaves her prone to severe psychotic episodes that are characterised by intrusive paranoid delusions.

She is NOT stupid, nor indeed should the term ‘stupid’ to this or indeed any case that finds it way before the Court of Protection. What she is, when one of these episodes overtakes her, is profoundly unwell and in need of care, support and, perhaps above all, compassion and understanding.

Sadly this is far from being the first occasion on which Hemming has chosen to resort to such disreputable rhetoric as can been seen in this extract from the second reading debate on his own [unsuccessful] Family Justice (Transparency, Accountability and Cost of Living) Bill:

Clause 9 is on the activities of the Official Solicitor. As it stands, the Official Solicitor is accountable merely to secret court proceedings. I know of a number of cases in which people have wrongly had their mental capacity removed—they are then submitted to the decisions of the Official Solicitor. RP v. UK*—I made an application to the European Court of Human Rights to assist RP and her brother—demonstrates how cataclysmic a wrongful removal of mental capacity can be. RP’s GP and a second expert have indicated that she had mental capacity and was not too stupid to instruct a solicitor, but the system—all the way through—wrongly treated her as somebody who did not have mental capacity.

The case to which he refers in this passage from the debate is one I covered in considerable depth back in May 2008 and one, also, in which Hemming’s own antics in court earned him several stinging rebukes from judge presiding over this case, Sir Nicholas Wall.

Unlike this case, RP v Nottingham City Council and the Official Solicitor, as it was at time, did deal specifically with capacity issues relating to an individual with severe learning difficulties of which the most significant, in terms of both the conduct of the case and central issue to which it related, that of whether this individual possessed the capacity to safely raise a child, were cognitive impairments which severely limited the plaintiff’s abstract/conceptual reasoning abilities.

This is again not something that either merits or deserves the label ‘stupidity’. RP was, on assessment, found to lack to a considerable degree and through no fault of her own, an ability that we all take very much for granted, that of being able to conceptualise our past experiences and learning in terms which enable us to cope independently and successfully with novel situations. That Hemming failed utterly to understand the significance of this impairment in the context of this case is perhaps best evidenced not by his tendentious claim that a court had concluded that RP was ‘too stupid’ to instruct a solicitor but rather by his assertion, some months after the original case, that proof that the court had been mistaken in his assessment of her mental capacity was to be in the fact that she had since learned to read.

Needless to say, a newly developed command of the works of Dr Seuss is no reliable guide to anyone’s abstract and conceptual reasoning abilities.

*As regards the ECHR case, RP v UK, referred to above, ECtHR found that, contrary to the arguments advanced by Hemming, no violation of RPs rights under articles 6, 8 & 13 had taken place.

To conclude I’d like to remind everyone of perhaps the most telling rebuke visited on Hemming by Sir Nicholas Wall back in 2008 [Para 164]:

The only postscript I would wish to add to my substantive judgment on this point is that at the heart of this case, as with so many family cases, lies a human tragedy: the premature and unconsidered birth of a disabled child, and a mother who is plainly incapable of caring for her, however much she may want to. However, the danger of the mother’s approach, reinforced as it has been, in my judgment, by Mr Hemming’s partial and tendentious advice, is that it has been entirely adult focused. Not once in his argument did he mention the welfare of KP. His emphasis, and that of RP was entirely on her rights and the alleged wrongs which had been done to her.

Sadly, subsequent experience of Hemming’s antics in the case of Vicky Haigh and in this present case tends to suggest that even this withering assessment of Hemming’s primary concerns when dealing with matters relating the family court system and, more recent, the Court of Protection, is overly generous as it seems to me, at least, that any concerns he may profess to have for the rights and well-being of the individuals he purports to advocate for are wholly secondary to his greatest passion in life – his own ego.

  • Great stuff, Unity. You’re right: it beggars belief that he’s cast this, even in rhetorical terms, as having been about whether A was “too stupid” to consent to surgery. Of course coining handy slogans can be useful in campaigning (as we’ve seen with “forced caesarian”), so maybe he thinks using the “too stupid” tag will assist his cause.

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  • Justin Horton

    throes

  • Jean Robinson

    You mention that the two previous caesarean sections were “elective”, suggesting that the term means the mother may have chosen such deliveries. “Elective” in most cases simply means that the operation has been planned, and was not an emergency. It may be relevant that Italy notoriously has the highest caesarean section rate in Europe (39%) but a survey of women’s views showed that 80% would prefer a vaginal birth.

    http://www.biomedcentral.com/1471-2393/13/78
    Jean Robinson, President ,Association for Improvements in the Maternity Services

    • unity_ministry

      Mmm… interesting.

      In terms of the this case I think her prior history of having had 2 c-sections is relevant only to the extent that these would have increased the risk of complications arising had a natural birth been attempted.

      From that point of view the fact that both were elective suggests that both would by way of a lateral lower uterine segment section rather than an emergency classical section, where the risks of uterine rupture had a natural birth been attempted could well have been even greater.

      • Claire Bullows

        In any other birth a VBA2C would not be that great an issue. I myself have had two and I also have what is called a “special scar”, that is one that is not the standard horizontal cut just above the pubic bone which creates a much higher risk. However, it is very important in a VBAC that the mother has the ability to speak up when something out of the ordinary is happening as the first sign of a rupture is pain between contractions and pain that is different to normal contraction pain. They can also tell a lot from monitoring. Doctors need to know that they can move you as soon as something happens.

        From my understanding of the transcript they were concerned she wouldn’t tell them she was in labour (I guess her paranoia of her baby being taken would be why they were concerned about that), wouldn’t be able to monitor the baby effectively and she wouldn’t speak up or be able to speak up about things being out of the ordinary. As you’ve pointed out, they also mention that they wouldn’t necessarily have the staff available to convert in anger.

        As a doula and a VBACer I am a great believer in natural birth and a supporter of VBAC where the mother wishes a TOL but this is definitely a case where it was not a good idea.

        • unity_ministry

          One thing I have noticed since the publication of Mostyn J’s ruling is that it seems to mostly men who’re still banging on about how absolutely terrible this all is, while women who’ve looked at what the ruling actually says about her condition at the time and the risks that the medical staff were concerned about are pretty much settled with the idea that the court made the best of a bad situation and made the right call.

          Funny that, isn’t it?

          • Claire Bullows

            I’ve seen it both ways but I think mostly where people are willing to believe that this is travesty they aren’t willing to look at the other side that this was done for the best.

            I read the original article and saw through it straight away when I saw the names John Hemming and Brendan Fleming. Sadly not enough people have managed to do that. I hope your article does have that effect on people.

          • Mrs Grimble

            I saw through the article as soon as the idiots started banging on about how she had been sectioned over a mere “panic attack”.

            Several members of my family have suffered from various types of mental illness and I can assure you that it is quite difficult to get somebody section in the UK. When one family member had a psychotic episode, they were seem twice by a doctor in five days; despite the family member expressing paranoid and delusional thoughts, the doctor would recommend sectioning since the family member was being looked after safely.
            It was only when the family member climbed out of a window and disappeared into the night clad only in thin sleepwear that the sectioning process was set into motion. Another family member expressed delusional thinking and exhibited erratic and frightening behaviour for years; they were only sectioned when they tried to destroy a church.
            So, as you can see, sectioning is very much a last resort.

          • Justin Horton

            “I can assure you that it is quite difficult to get somebody sectioned in the UK”

            Having been on the sharp end of the sectioning process, I am in a well-informed position to say that this is not necessarily true.