© 2009
Thursday, 26 June 2014
© 2009
Health & Relationship Law
o  The facts and myths
o  The court’s decision with regards to
c-section
o  The court’s d...
© 2009
Health & relationship law
•  Pregnant woman has her baby forcibly removed by caesarean
section by social workers
• ...
© 2009
Health & relationship law
Application under the Mental Capacity Act 2005 for
a declaration that an expectant mother...
© 2009
Health & relationship law
•  Ms Pacchieri was:
•  35 years old;
•  An Italian national;
•  compulsorily detained un...
© 2009
Health & relationship law
Myth	
   Fact	
  
Social workers applied for the order	
   NHS Trust applied	
  
Panic at...
© 2009
Health & relationship law
•  Ms Pacchieri should have an elective planned caesarean
in order to avoid the risk of u...
© 2009
Health & relationship law
•  Ms Pacchieri suffered from a significant mental
disorder involving psychotic episodes ...
© 2009
Health & relationship law
•  Did not oppose the application
•  Agreed that the proposed delivery by caesarean secti...
© 2009
Health & relationship law
• “the interests of this unborn child are not the concern of
this court as the child has ...
© 2009
Health & relationship law
• Ms Pacchieri lacked capacity to consent to medical
treatment relating to the delivery m...
© 2009
Health & relationship law
it would be ‘heavy handed’ for the Local Authority to invite
the police to remove the bab...
© 2009
Health & relationship law
•  On the birth of the baby the Local Authority
applied for and was granted interim care ...
© 2009
Health & relationship law
•  The mother was referred to as A.
•  The father was referred to as B.
•  The child was ...
© 2009
Health & relationship law
•  The mother indicated in her evidence that she had had
mental health problems since 200...
© 2009
Health & relationship law
•  The mother contended strongly that she was well and
taking her medication.
•  She begg...
© 2009
Health & relationship law
•  There were reports from the Italian Social Services
which indicated that the mother ha...
© 2009
Health & relationship law
• at the time the Local Authority intervened and instituted
proceedings P either was suff...
© 2009
Health & relationship law
“I am sorry to say it but the way in which the case has
unfurled is that I am not able to...
© 2009
Health & relationship law
“Identifying that P’s welfare throughout her life is my
paramount consideration the prior...
© 2009
Health & relationship law
1.  Care order
2.  Dispense with the parents’ consent
3.  Placement order
© 2009
Health & relationship law
•  The mother has not sought to challenge any of the
decisions in the UK courts.
•  Subse...
© 2009
Health & relationship law
•  The story broke in the UK on 1 December 2013.
•  Justice Mostyn authorised the release...
© 2009
Health & relationship law
•  In each Australian jurisdiction there is a Mental Health Act
which permits involuntary...
© 2009
Health & relationship law
•  Zoe’s law
•  Parental Responsibility Contracts
© 2009
Health & relationship law
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Janine McIlwraith - Catherine Henry Partners - Case Review: The Forced Caesarean & Adoption Case

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Janine McIlwraith delivered the presentation at the 2014 Obstetric Malpractice Conference.

The Obstetric Malpractice Conference is only national conference for the prevention, management and defense of obstetric negligence claims.

For more information about the event, please visit: http://www.informa.com.au/obstetricmalpractice14

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Janine McIlwraith - Catherine Henry Partners - Case Review: The Forced Caesarean & Adoption Case

  1. 1. © 2009 Thursday, 26 June 2014
  2. 2. © 2009 Health & Relationship Law o  The facts and myths o  The court’s decision with regards to c-section o  The court’s decision with regards to placement of the child o  How might the case have transpired in Australia? o  Is there a growing momentum for foetal rights?
  3. 3. © 2009 Health & relationship law •  Pregnant woman has her baby forcibly removed by caesarean section by social workers •  “Forced Caesarean’: Italian Woman Begged to keep Baby •  Forced C Section was ‘stuff of nightmares’: social services condemned for forcibly removing unborn child from woman • Operate on this mother so we can take her baby •  Baby forcibly removed by c-section from Italian mother visiting Britain ‘the stuff of Hitler’s regime
  4. 4. © 2009 Health & relationship law Application under the Mental Capacity Act 2005 for a declaration that an expectant mother lacked capacity to consent to medical treatment relating to the delivery method of her baby, as well as in relation to her ante-natal and post-natal treatment.
  5. 5. © 2009 Health & relationship law •  Ms Pacchieri was: •  35 years old; •  An Italian national; •  compulsorily detained under the Mental Health Act suffering from significant mental illness; •  39 weeks pregnant at the time; and •  in detention for 5 weeks prior to the application being made. •  She had previously had 2 children by caesarean section.
  6. 6. © 2009 Health & relationship law Myth   Fact   Social workers applied for the order   NHS Trust applied   Panic attack   Manic episoded   Inadequate timeframe for mother to comply with medication routine   Order applied for after 5 weeks in detention   Baby taken from mother after 1 application to the court   4 separate applications: 1. For treatment order; 2. Interim care order; 3. Placement order; 4. Adoption order   The mother had no voice   The mother was represented by the Official Solicitor  
  7. 7. © 2009 Health & relationship law •  Ms Pacchieri should have an elective planned caesarean in order to avoid the risk of uterine rupture. •  Because of Ms Pacchieri’s mental state, if she were dissembling or otherwise being uncooperative, they would not be able to adequately monitor the baby’s heartbeat.
  8. 8. © 2009 Health & relationship law •  Ms Pacchieri suffered from a significant mental disorder involving psychotic episodes and delusional beliefs. •  Justice Mostyn accepted the psychiatric evidence that as she was suffering delusional beliefs she did not have capacity.
  9. 9. © 2009 Health & relationship law •  Did not oppose the application •  Agreed that the proposed delivery by caesarean section was in Ms Pacchieri’s best interests. •  The QC was of the opinion that it was in Ms Pacchieri’s best interests if she was to have a caesarean for it to be undertaken in a planned way with the right amount of staff support and the right structure.
  10. 10. © 2009 Health & relationship law • “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, other than in respect of tortious acts committed on him or her”. • the risk of harm consequent upon uterine rupture was relevant to both the mother and the child. • “I would have thought it was in her best interests, that is, her mental health best interests, that her child should be born alive and healthy and that such a result should be, if possible achieved, and such risks attendant should be avoided”
  11. 11. © 2009 Health & relationship law • Ms Pacchieri lacked capacity to consent to medical treatment relating to the delivery method of her baby and to make decisions in relation to the litigation. • Elective or planned caesarean was in her best interests and should be conducted the following day under GA if deemed appropriate. • Authorised the use of reasonable restraint • Terms of the order not be disclosed to Ms Pacchieri until after the procedure
  12. 12. © 2009 Health & relationship law it would be ‘heavy handed’ for the Local Authority to invite the police to remove the baby from the mother using powers under the Children Act and that instead it should apply for an interim care order at a hearing where the mother could be represented by the Official Solicitor.
  13. 13. © 2009 Health & relationship law •  On the birth of the baby the Local Authority applied for and was granted interim care orders. •  The mother was allowed to see the baby on the day it was born and the following day •  The baby was the placed in foster care •  Ms Pacchieri returned to Italy on 21 Oct 2012 •  The order was renewed up to the time proceedings were brought for placement order •  The Local Authority applied for placement order on 17 Jan 2013 and the matter was heard on 1 February 2013
  14. 14. © 2009 Health & relationship law •  The mother was referred to as A. •  The father was referred to as B. •  The child was referred to as P. •  The previous 2 children were dubbed C & D both under care of the grandmother since 2011. •  There was a long period of restricted contact between the mother and C & D.
  15. 15. © 2009 Health & relationship law •  The mother indicated in her evidence that she had had mental health problems since 2007. •  The mother had had little or no contact with P.
  16. 16. © 2009 Health & relationship law •  The mother contended strongly that she was well and taking her medication. •  She begged that care and placement orders not be made. •  The father met with the social worker and Guardian and wrote to the court indicating he opposed the application.
  17. 17. © 2009 Health & relationship law •  There were reports from the Italian Social Services which indicated that the mother had a sincere affection for C & D and a desire to care for them. •  However she was not able to do so in a suitable way because of her condition which was said to interfere with her ability to maintain her own life and those of her children. Evidence – Social Services
  18. 18. © 2009 Health & relationship law • at the time the Local Authority intervened and instituted proceedings P either was suffering or was likely to suffer significant harm because of the mother’s very ill health at the time • central issue was whether P could in a foreseeable and planned way be placed with her family or whether the only realistic and safe option was that she be placed for adoption
  19. 19. © 2009 Health & relationship law “I am sorry to say it but the way in which the case has unfurled is that I am not able to say that P can return to the care of her mother today. It is not a case where I can accede to the mother’s wishes even though I understand, as the Guardian indicated also, not just the strength of feeling that she has, but actually as I said to her it is rare to have it articulated in such a forceful and coherent form. There is no-one within the wider family who today can look after P even though the father attempts to put himself forward but it is not, if I may say so, a starter.”
  20. 20. © 2009 Health & relationship law “Identifying that P’s welfare throughout her life is my paramount consideration the priority is to identify and secure a permanent, predictable and stable home for P. In my judgment . . . that on balance can best be achieved by way of adoption and I am satisfied that is the best course.”
  21. 21. © 2009 Health & relationship law 1.  Care order 2.  Dispense with the parents’ consent 3.  Placement order
  22. 22. © 2009 Health & relationship law •  The mother has not sought to challenge any of the decisions in the UK courts. •  Subsequently the Local Authority applied to Chelmsford County Court for an order giving it leave to place P for adoption. •  That order was made by Judge Newton on 25 October 2013. •  Not long after P was placed with prospective adopters.
  23. 23. © 2009 Health & relationship law •  The story broke in the UK on 1 December 2013. •  Justice Mostyn authorised the release of his judgment dated 23 August 2012 on 4 December 2013 •  On 5 December 2013 the mother’s lawyer indicated she would challenge the adoption order and disclosed her name to the press. •  On 17 December 2013 the Local Authority applied for a reporting restriction.
  24. 24. © 2009 Health & relationship law •  In each Australian jurisdiction there is a Mental Health Act which permits involuntary detention of those suffering a mental disorder •  The various State and Territory Supreme Courts have parens patriae jurisdiction over adults who are not competent •  Care decision – perhaps more leeway in Australia, courts seem to accept a later age as crucial in relation to permanency planning date
  25. 25. © 2009 Health & relationship law •  Zoe’s law •  Parental Responsibility Contracts
  26. 26. © 2009 Health & relationship law

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