The Mental Health Trust & Anor v DD & Anor (No 3)

I do not propose to give a detailed judgment in this case today in light of the large measure of agreement. However, I want to make some comments about the proposed draft order. This draft order has been prepared and presented to the court against a lengthy background history, which I have set out in the two judgments which I delivered in July (see The Mental Health Trust, The Acute Trust & The Council v DD (by her litigation friend, the Official Solicitor) and BC [2014] EWCOP 11 (4.7.14), and The Mental Health Trust, The Acute Trust & The Council v DD (by her litigation friend, the Official Solicitor) and BC [2014] EWCOP 13 (15.7.14)).

I mention for the record that on 17^th July 2014, baby C was delivered to DD by caesarean section. After some limited contact with her parents, C is now in the interim care of the relevant local authority and the subject of an application under Part IV of the Children Act 1989.

In preparation for this four day hearing, in which I was to be considering questions of long-term contraception or sterilisation of DD, I have read with care the witness statements prepared on behalf of the Applicant and a witness statement from the Official Solicitor’s representative, with attendance notes of her attempts to have constructive discussions with DD. I have also read the further reports of Dr F and also of EF, a community midwife.

The history since the matter was last before me shows a mixed picture which includes periods of co-operation and of a lack of co-operation on DD’s part with the relevant authority’s representatives. There have been some positive developments, including her constructive discussions at times with Mrs C (the safeguarding midwife), her visit to the general practitioner’s, Dr E’s, surgery and her registration with the surgery. There appears to have been a constructive meeting with general practitioner Dr. K on 11^th August, in which, although he allowed her to do much of the talking, it appears he felt that DD had begun to form a helpful professional relationship with him.

The attempts to convey DD to the community clinic on 13^th August for the purposes of education and assessment in relation to contraception were less successful. Those attempts have put back a little of the progress which had otherwise been made in securing DD’s co-operation.

Notwithstanding that setback, during the period since the matter was last before me, DD has, perhaps unexpectedly, engaged in meaningful discussion with the professionals about contraception and sterilisation. Although she has not maintained a consistent position on her future childbearing intentions, it is a source of some reassurance to me, and no doubt a source of some optimism on the part of the professionals, that she is at least able to and willing to have that sort of discussion about contraception and sterilisation.

A large number of the professional witnesses who have been working on this case have attended at court today for the purposes of giving evidence at this hearing, which, as I say, was originally listed for four days. To some extent, I regret that their journeys have been wasted because the parties have, more or less, come to an agreement about the way forward. However, their presence in court does give me the opportunity to pay the highest tribute to them for the very considerable care and sensitivity which they have, each in their own respects, exercised in managing what has been an extraordinarily difficult case. Therefore, whilst they have been relieved of the responsibility or obligation to give evidence before me, and will return to their ordinary clinical duties tomorrow without having done so, I hope that by being able to receive my credit to them directly their journey has not been entirely wasted.

Without elaborating further or at length about the events which have occurred since the matter was last before me on 11^th July, two particular points deserve mention. The first is that my anxiety, which I expressed in my first judgment, about the effect on DD of repeated forced entries to DD’s home, have, to some extent, been realised; the removal of DD from her home on 13^th August was considerably more difficult than that on 16^th July. It was precisely the repetition of that sort of incident which had caused me to refuse the Applicant’s application for the earlier proposed forced removal from the home on 7^th July, prior to the caesarean section. As Mr McKendrick has pointed out, and Mr Horne agrees (and I concur), the scope for repeating this sort of procedure hereafter is now very considerably limited.

The second point which justifies comment at this point is to be drawn from the evidence of Mr A (consultant gynaecologist), who, in his third witness statement, draws together a number of the key developments in the case, but specifically (and uniquely from his position) describes the caesarean section which he performed on 17^th July. He describes the lower segment of the uterus being very thin like tissue paper, with the baby being visible through it (before he performed the incision), which is highly unusual. With such a thin lower segment being present, it would suggest that future pregnancies would be at particular risk of uterine rupture, especially if DD went into natural labour.

Mr A’s evidence goes on to highlight the very precarious medical situation which would have arisen had the baby not been delivered by caesarean section on the 17^th, with possibly fatal consequences for both mother and child. That, in its own way, provides for us all - lawyers and medics, Judge and parties - a valuable insight into the outcomes of the processes in which we have been engaged and which have caused us all much anxious consideration.

Those general comments are made simply to bring matters up to date. There has been presented to me this afternoon a proposed draft order, which is, albeit not by consent, not materially opposed by the Official Solicitor as litigation friend for DD. The Second Respondent, BC, who is aware of the hearing today, I am satisfied is neither here nor represented and is not making any representations about the proposed terms of the order.

The structure of the order, I am entirely satisfied, is faithful to the principles of the Mental Capacity Act 2005, in particular in adhering to the expectation of least intervention in section 1(6), the ability of DD to participate in processes which are designed for her best interests under section 4(4) and accommodating her own wishes and feelings under section 4(6).

I have already, for reasons which I have discussed at some length in my second judgment, declared, certainly for the purposes of section 48, that DD lacks capacity to make decisions in relation to contraception. I do not in any sense consider that the evidence which I have now received casts any doubt upon those earlier comments. I restate them for present purposes and I am content to make the declaration set out at paragraph 1 of the proposed draft.

I go on to consider at paragraphs 2 and 3 the declarations relevant to DD’s best interests. As I say, adhering to the principles of the Mental Capacity Act, I consider it entirely right that DD should be given the opportunity voluntarily to attend her general practice on 18^th September in fulfilment of the appointment which she herself has made to receive the Depo-Provera injection. However, I recognise that it is in her best interests that a contingency plan is put in place by my order, in the event (a) that she does not, without good reason, attend on 18^th September and consequently (b) more coercive steps need to be taken to administer that vital contraception injection.

The issue of forced entry to her home and restrictions on her freedom of movement arise again today as they have arisen on previous occasions. Again, not without considerable reservation, I do nonetheless consider it in DD’s best interests that I give authorisation to the Applicant to exercise physical restraint for the purposes of giving DD the relevant contraception injection, by professionals who have received training in the relevant techniques and only as a last resort, where less restrictive alternatives have failed; it is important that at all times the professionals should maintain DD’s dignity.

I take the view that, even if for a brief period DD’s liberty would be deprived by virtue of the restraints which are proposed for the purposes of administering the Depo-Provera injection, and having regard to the Supreme Court decision in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor [2014] UKSC 19, I propose to authorise under section 4A and section 16 of the 2005 Act the relevant limited deprivation of liberty.

Directions are then sought, in order to give effect to the care plan, to enable the professionals to share relevant information with each other; all of these provisions have been designed to ensure that the treatment which is given to DD is done in the most effective, least restrictive way. In the first instance, I give the Applicant and the Official Solicitor permission to disclose documents produced within these proceedings (and to discuss issues arising within the proceedings) with the health professionals at DD’s general practice. The concern I have expressed in court, about limiting the extent of disclosure of documents, I believe has been taken on board by both the Applicant and the Official Solicitor.

I take Mr Horne’s point that one important way of limiting the extent of disclosure is to incorporate some test of relevance, and I agree with that approach in relation to disclosure to third parties. However, it may be difficult to isolate out at this stage that which is closely associated with the specific questions relevant to DD’s capacity to consent to contraception from the wider evidence about the implications for her of a repeat pregnancy. Therefore, I leave it to the judgment of those who are on the ground to decide what is and what is not relevant and necessary for disclosure to the professionals at DD’s general practice. However, I repeat my exhortation to them, please, not to overburden the practice with more documentation than is necessary.

There are no other points of particular controversy or challenge. Paragraph 8 has been refined through discussion and is a paragraph which is now agreed between all parties, or at least not opposed. In its revised form, I myself approve it. The care plan, which I have seen in draft, is to be disclosed to the Official Solicitor by 5^th September and a copy should be lodged with the court on or about the same day.

I will invite the parties to go to the Clerk of the Rules at the end of this hearing to fix a directions hearing before me, with a time estimate of an hour on the first available date after 6^th October, in order that we can once again take stock of where we are with this particularly difficult case, and with a view then to considering the future listing of the case. As I have earlier discussed with Mr McKendrick, I propose to specify now, if it has not been done already, that all future applications should be reserved to me and only released in consultation with me.

Mr Horne has floated for my consideration whether or not this order, which is in its own way to be redacted in any event, should not at this stage be served on BC, for fear that it may alert BC to the coercive nature of the steps which are proposed in the event that DD does not co-operate; service of the order on BC may have a counterproductive effect on what is at the moment a fragile level of co-operation between DD and her new GP. I consider that the alternative possibility if BC is shown the order (to the effect that BC sees that unless DD co-operates then that is the outcome and thus it is better for her to co-operate), may indeed be just as likely. In those circumstances, I do not feel that the extraordinary step of not serving BC with this order until after 18^th September is justified. Therefore, I do not propose to make any direction about delay in service on him.

Mr McKendrick will, I understand, identify very quickly the relevant persons who are responsible for the implementation of this order at the general practitioner’s Surgery. He says that they can be specifically identified on the face of this order in both paragraphs 7 and 14 and that that name should be incorporated into the draft before it is submitted to me via my clerk, Mr Beris, for my ultimate approval.

That is all I propose to say by way of judgment.