Judge misled over call for caesarean operation

Lawyers acting for an NHS trust seeking authorisation to perform a forced caesarean operation misled the High Court judge, three appeal court judges were told last week.

A 30 year old single mother, named as Ms S, claims that two trusts, Pathfinder Mental Health Services NHS Trust and St George's NHS Trust, acted unlawfully in sectioning and detaining her under the Mental Health Act and carrying out the operation. Judgment was reserved to a later date.

Richard Gordon QC, for the woman, said that her detention was defective because she had not been properly diagnosed as suffering from mental disorder, as required by the act.

Ms S was eight months pregnant when she visited a GP to register as a patient. The GP told her that she had pre-eclampsia and should go into hospital to have the baby delivered immediately. Ms S, a healthcare worker, who objects to invasive procedures in pregnancy and had planned a home birth, refused. The GP called a social worker, who arranged for her to be sectioned under the Mental Health Act and taken to Springfield Hospital. From there she was transferred to St George's Hospital, where her baby daughter was delivered by caesarean after a High Court judge, Mrs Justice Hogg, sanctioned the operation in an emergency lunchtime hearing.

The case was one of a series in which NHS trusts won court orders sanctioning forced caesareans on women to protect their fetuses. These have stopped since the appeal court made it clear in a case last year that women who are mentally competent to refuse treatment have a right to do so, even if the result is certain death for them or the fetus.

Mr Gordon said that Springfield Hospital had no power to admit or detain Ms S and no authority to transport her to St George's. Philip Havers QC, for the two trusts, accepted that the formalities were not properly completed for the transfer to St George's, making her detention there unlawful. Mr Gordon said St George's acted unlawfully in denying Ms S access to the court and a fair trial. Even though she had consulted lawyers and had three times refused her consent to the operation in writing, this was not brought to the attention of the court.

Neither Ms S nor the official solicitor was told that the court order was being sought. Mr Gordon said that the trust had evidence that Ms S was competent to refuse treatment, but this was not put before the court. Counsel for St George's had told the judge that Ms S had been in labour for 24 hours and it was a life or death situation with minutes to spare.

But it was not such a situation, said Mr Gordon. Ms S was only eight months pregnant and was not in labour. Mr Havers said: “We submit that if the full facts had been presented to the judge, the judge would still have granted the declaration because she would still have been faced with a life or death situation.”