Education and debate

CH was a 41 year old woman who suffered from paranoid schizophrenia. She was detained under section 3 of the Mental Health Act 1983 and was subsequently found to be pregnant. She had previously shown pathological reactions to major tranquillisers, and it was feared that their use would be injurious to the fetus; thus, during pregnancy she was given only minor tranquillisers. Her psychiatrists stated that were she not pregnant she would be given strong antipsychotic drugs. At 31 weeks into the pregnancy it was established that intrauterine growth was retarded because of a poorly functioning placenta. By 37 weeks, there were concerns that if the pregnancy continued the fetus would die in utero. The obstetrician considered that it was necessary to deliver the baby as soon as possible and planned to induce labour, but there was a possibility that fetal distress could occur during labour and, if so, an immediate caesarean section would be required. It was agreed that the death of the baby in utero would not cause any physical harm to the mother, but the psychiatrist thought that delivering a stillborn child would have “profound deleterious effect” on her mental health in the short and long term. He believed that if the child were stillborn CH would become increasingly paranoid and blame staff for its death. This would undermine the trust she had in psychiatric services, and without that degree of trust the prognosis for treating her schizophrenia was deemed to be poor. The obstetrician (who wished to induce within two days) was concerned that, although CH consented to the induction, she might change her mind and, if so, might need to be restrained. CH had told her psychiatrist that she considered a caesarean section unnecessary at that stage. Accordingly, the NHS trust sought a declaration that the caesarean section could be performed without CH’s consent and physical restraint used if necessary. A fetus has no legal personality thus no operation could be imposed on the mother in the interests of the fetus. Given that all parties accepted that CH lacked capacity to give or refuse her consent to the proposed caesarean section, it was not necessary to consider the guidelines laid down by the Royal College of Obstetricians and Gynaecologists after an earlier case, which state that the refusal of a woman of “sound mind” must be respected. That the treatment was necessary to prevent deterioration of CH’s mental state and was in her best interests was not disputed by the official solicitor appointed to represent her interests. On this basis it would have been lawful for the caesarean section to be performed without CH’s consent. However, although previous cases had authorised treatment without consent in such circumstances, they had not involved the use of restraint. Accordingly, the court was asked to consider whether the treatment (and by implication the use of restraint and reasonable force) could be authorised under the relevant provision of the Mental Health Act (1983) (section 63). In considering whether the proposed treatment fell within the remit of section 63, the judge examined the earlier case of B v Croydon Health Authority. The Court of Appeal had decided that B, a woman with borderline personality disorder who was refusing food, could be force fed because tube feeding could be considered “ancillary” to treatment for the mental disorder. Following this “ancillary” treatment argument, the judge concluded that, because a successful outcome of CH’s pregnancy was a necessary part of the overall treatment of her mental disorder, the treatment of her pregnancy (including the use of restraint) fell within section 63. The judge gave three reasons for his decision. Firstly, an ancillary reason for the induction and, if necessary, the caesarean section was to prevent a deterioration in CH’s mental state. Secondly, for the Mental Health Act (1983)