The Court of Protection, motherhood and mental health

Last week I was asked to speak on BBC London Drivetime about what it’s like to be a woman with bipolar. I was pleased to be asked, as Drivetime has a big audience and I thought it would be a good way to raise awareness. However, as I discussed the possibility of interview I became aware that the journalist was hoping to tie it to the case of SB, the pregnant woman brought before the Court of Protection after requesting a termination of pregnancy while detained under the Mental Health Act 1983.

It’s taken me a while to be able to write about the case, and about why I eventually declined to be interviewed. It was a highly complex situation, and as a bipolar woman who was unwell during pregnancy and after birth, I had a lot of personal feelings to sort through. I’ve also see a few inaccurate statements about the case, so I thought it might be useful to discuss its finding and potential implications.

Firstly, it’s important to understand the role of the Court of Protection. The Court is designed to protect the interests of people who “lack capacity”. To “lack capacity” in this situation has a very particular meaning under the Mental Capacity Act 2005 and applies to people who become unable make important decisions about their health, welfare or money matters. The Court can appoint a Deputy to make the decisions on someone’s behalf, or grant powers of Attorney if needed so someone else can manage their finances.

In terms of becoming involved in medical matters, the Court can make decisions regarding:

  • giving treatment
  • withdrawing existing treatment
  • withholding further treatment

but only for a person deemed to lack capacity. So the issue before the Court is not, “What treatment should this person have?” or “What treatment can this person meaningfully consent to?” but, “Does this person have the capacity to make their own treatment decisions?”

The other legal point important to note here is that, regardless of anybody’s personal moral position on termination of pregnancy, the unborn fetus did not have any legal rights which had to “weighed or considered” by the Judge. This means it would not have been possible for SB’s husband and mother to argue that the needs of a planned future baby had any bearing on the decision.

It appears that SB (37) had a history of hospitalisation for acute bipolar episodes. She had planned her first pregnancy when relatively well, although she felt that her husband did not really wish to become a parent at this stage. At some point in the early stages of pregnancy she chose to discontinue her medication, became unwell, and was detained under section 2 of the Mental Health Act 1983. While SB was in hospital, her view towards the pregnancy changed and she expressed a wish to undergo a termination. Her husband and mother felt that she was making a mistake that she might later come to bitterly regret, as did her Consultant Psychiatrist, who declared himself “100% clear” that SB lacked the necessary capacity to make such a serious decision about her medical welfare. He also felt that since stopping her medication, SB had developed “paranoid ideas” about her mother and husband.

Understandably, many bipolar women on my timeline felt anxious and unhappy about the case, but I would argue that this was not actually “about” bipolar – which is why, in the end, I decided not to give the interview. The issue here is capacity, and this case could have happened to any woman hospitalised for a fluctuating mental health condition – borderline personality disorder, say, or schizophrenia or even recurrent unipolar depression. Given the vast range of and experiences that come under the diagnoses known collectively as “bipolar” I couldn’t see how describing my own personal experience of the disorder would shed any light on SB’s case. I was wary that if I described my own history bipolar symptoms, something would be extrapolated and used to lend credence to the view that she opposed her mother and partner’s wishes because she held paranoid beliefs about them.

In fact, what the case showed was that SB’s symptoms were not the most relevant factor. What was relevant was her ability to speak for herself – an unusual event, in a Court that more usually deals with people who cannot express themselves. In this case, SB was apparently articulate, and had been able to instruct her own lawyers who were in no doubt that she had the capacity to do so. The Judge was further convinced by SB’s own arguments, which were that:

–       Although she had once wanted the baby, she did not feel she would get the necessary family support from her immediate family.

–       That it was bad enough to be detained in hospital, but that she found being pregnant in such a situation intolerable. SB summed this up as: “I am extremely unhappy where I am. Imagine being unhappy and being pregnant.”

–       That staff at the unit “frequently” said to her, “Why not give it up for adoption?” but she could not see why she should bear a child just to relinquish it.

–       That for the past 8 years, she had suffered from bipolar disorder, which is a lifelong, relapsing condition. As a result she had what the Judge called an “entirely rational” worry that she would not be able to bring up a child in the way she would like.

In summary, then, this judgment reminds us that requiring involuntary treatment for a mental health condition is not the same thing as being unable to make independent decisions about other forms of healthcare while subject to detention under the Mental Health Act. It recognises that someone’s thinking might change as they enter different mood states, but even though the mood state is seen as pathological, the thought patterns might well be valid. Yes, we might make decisions when unwell that we later regret hugely. But people without mental health difficulties have the right to make decisions, because they are adults – and so are we. It also thoroughly underlines the point that even when the treatment under discussion involves an unborn baby, the rights of the woman take legal precedence.

For me, the double-edged sword in this judgment is around the “entirely rational” worry about being able to be an effective parent with bipolar. Many women in the mental health community (and I include myself in this) expressed horror at the possibility of SB being found lacking in capacity and being forced to continue her pregnancy to term and then give birth. Equally, many will fear that the Judge’s words lend credence to the idea that bipolar and motherhood are incompatible, and that even a planned pregnancy might be viewed as unwise or irresponsible in a bipolar woman.

The real message of the SB case is that regardless of diagnosis, detained inpatients need to be treated as grown-ups. Let’s hope healthcare professionals hear that loud and clear.

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About purplepersuasion

40 something service user, activist, writer and mother living with bipolar disorder. Proud winner of the Mark Hanson Prize for Digital Media at the Mind Media Awards #VMGMindAwards 2013. Winner of the World in Mentalists Mood Disorder blog 2012. Regular guest blogger for the International Bipolar Foundation http://www.internationalbipolarfoundation.org/ Expert by Experience working with Mind training department. Working on The Incoming Tide, a bipolar memoir. Find me on Twitter @BipolarBlogger or at my Facebook page http://www.facebook.com/BipolarBlogger
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16 Responses to The Court of Protection, motherhood and mental health

  1. Sam Candour says:

    Eloquently written, thank you.

  2. Kimmie says:

    As someone who is also Bipolar and pregnant (due in 5 days) she has my deepest sympathy, however I do question her logic in planning a pregnancy whilst being bipolar (mine was unplanned-long story!) and not researching correct medication etc and exploring the possibility of maybe trying said safe medication BEFORE becoming pregnant, Quitepine and Citalopram are safeish whilst pregnant and thats the two I know and am taking. This is just my opinion and the fact that she may have lacked “capacity” to do said pre-planning would make me question wether she had the capacity to make such a decision as termination, however I freely admit I do not know if she had in fact done said research as we will never know all facts in this case and if she had I deeply apologize.

    • Well, that’s the thing. We simply don’t know a) what she was taking and b) whether she decided to stop because of concerns about the baby. Bipolar people stop their meds all the time for reasons such as side effects, hypo/mania making them feel invulnerable, or a desire to feel more fully themselves. Also, just because a drug is safe and effective for one person does not mean the same is true for another person in a similar position. So I really think that we shouldn’t try to comment on her meds or her decision, because it can’t be any more than pure speculation. And in any event, how or why she became ill isn’t at all relevant to the legal judgement. I just think we need to be really careful about this stuff.

  3. Very well penned article, Charlotte – I enjoy your hearing your perspectives. As a mental health professional in practice and education, and an ex-service user with past history of ‘SEMI’ and receiving treatment with varying degrees of usefulness, niceness, brutality and compassion as well, I speak from multiple-perspectives. I’m not going to comment on this specific case as such (having not reflected on it more than anything else and bearing my obligations professionally in mind) but would like to congratulate you on your thoughtful piece. Something I’d like to raise in the blogosphere is that we must bear in mind there is a lot of positive practice that doesn’t get into our news and we are rather vulnerable as a media consuming group, irrespective of our personal experience of mental health difficulties, to becoming biased. I’m not saying you are btw I’m making a generalisation here about a tendency.

    I have worked with people with similar diagnoses, similar circumstances, similar medications but I have found that you need to treat everybody as an idiosyncratic combination of circumstances, ‘condition’, environment, attitudes, values, needs, desires, goals, risks, support, resiliency and, well, I could go on. Meeting people with a compassionate attitude as a practitioner is at times very difficult. Being a person on the receiving end can also be a trial. Being humble in practice, respectful, empowering, curious, attentive, valuing, supportive, at times necessarily challenging tailored to the individual within their context of care and ongoing dynamic fluid changing needs is emotionally draining. On the flip side being on the receiving end is similarly draining from my experience. So I would say this Life is multi-factorial and aiding people in life decisions takes skills crafted over time and is similarly delicate and complex. We are working in a flawed system. We are all at times flawed peopled.

    • I guess I was viewing this *as* a piece of good practice – but from the Court rather than professionals. We don’t tend to think of the legal aspects of mental health as being examples of “practice” but really they are. I wouldn’t even suggest that the psychiatrist’s role was in any way poor practice, either. He was very sure of his professional opinion, and I imagine any doctor in his position would be extremely worried about the emotional effects of a termination on their patient later on. I just think that dealing with a pregnancy is something which can potentially knock any woman off course emotionally – whether because it’s unplanned, or the experience of feeling “hijacked” by a life growing inside is harder to cope with than expected, or the social support is not there, or the woman feels she already has all the children she can cope with, or she is very ill with a high risk pregnancy, or the foetus has a serious abnormality…I guess what I am trying to say pregnancy is always a risky business, emotionally. And very often women have to make decisions without knowing if it’s the best thing to do.

  4. Katey says:

    Wow, I haven’t heard of an equivelent case here in Australia, but this is hugely interesting. I agree with your concern about the percieved notion of women with bipolar not being capable of motherhood. But I do agree with the decision that she should able to make up her own mind about her body and pregnancy. She may come to regret termination – but we all do things we regret. The important part is that we have the autonomy and respect from society to make those choices.

  5. Pingback: Mental capacity, mental illness and pregnancy | Sectioned

  6. butterflywgs says:

    Brilliant post.
    Absolutely agree that we with mental health issues should be treated like adults (hahaha, won’t hold my breath) – but I actually don’t care if she had capacity. I come at this from a strong pro-choice stance – I believe that a woman is entitled to have an abortion for ANY reason. Even a trivial one such as ‘I’ve booked a holiday in a few months when I will be heavily pregnant which would ruin it’ or even ‘I have that party coming up and gosh, imagine not being able to drink and fit into my favourite glam dress’. Once we start judging women’s reasons for abortion as acceptable or unacceptable, good or bad, it’s a slippery slope to this: http://www.amnesty.org/en/news/el-salvador-supreme-court-toys-young-mothers-life-2013-05-17. I know, of course people do judge, being human. I know I wouldn’t have an abortion lightly and I don’t think most women do.
    I really feel for her, and any women in that situation. I don’t know what I would do.
    I know you’ve been in a similar situation and made a different decision to SB, and it’s admirable that you support her choice.
    It would be worse for SB to be forced to continue the pregnancy – that would not only be incredibly dangerous to her, but *also* bad and dangerous for the foetus/ potential baby (yep, the baby that anti-choicers claim to care so much about, but don’t), in any number of scenarios (she attempts a DIY abortion and/or suicide while pregnant/ is made to give birth, becomes psychotic and kills the baby/ is made to give birth and commits suicide/ gives birth, both survive and she becomes an abusive mother who lets the child know she wanted an abortion, perpetuating the cycle of MH issues…my head is running away with me now imaging various permutations. To be clear, *none* of this is because she is bipolar. Lots of women with MH problems make wonderful mums. It is because *she didn’t want to have the baby* therefore having it would not end well.
    Even if she had the child and it was adopted, great if that was her decision, but it wasn’t. Why should she be forced to carry the foetus and give birth (as you said). (And I’d like to be shocked the hospital staff told her she should do that…sadly, I can’t be).
    Ultimately, the rights of an adult woman come before that of a foetus – that is the law and so it should be.

    • It is, and it should be, but it’s important not to muddy the waters. The legal issues under the Abortion Act and the legal issues under the Mental Capacity Act must stay separate, because it’s total bodily autonomy, regardless of the medical procedure that is covered by capacity. It would be unhelpful to say that for some procedures (i.e. termination of pregnancy) capacity should always be assumed, but not for others. It’s quite possible to envisage conflicts about what is “best” for a detained inpatient around elective procedures, especially refusal of treatment for a physical condition unrelated to their mental health. For example: refusal of chemotherapy is quite common on the grounds that it substantially detracts from quality of life. What about the person under section who happens to have cancer? Is refusing chemo now evidence of disturbed thinking and lack of capacity?

      We can take heart from the fact that even in the case of a woman who is quite profoundly learning disabled, she was earlier this year judged to be able to make decisions about whether to continue a pregnancy http://www.guardian.co.uk/society/2013/jan/10/woman-learning-difficulties-decide-pregnancy. So I don’t think there is any practical need to conflate the two legal issues, anyway. If people under section are brought before the Court of Protection, it is the Judge’s role to safeguard their autonomy as much as it to make financial and practical arrangements where capacity is lacking.

  7. Hi there, really interesting post, especially involving the court of protection which isn’t heard about very often. Best wishes

  8. gerald0123 says:

    I am for the life of the baby and pro contraception. Because although some pregnancies occur despite contraception use many many more occur as result of none. Some people use abortion to prevent birth instead of contraception to prevent pregnancy. These cases sicken me especially when they are habitual. However,

    As to the main point of your blog post about the woman’s ability and right to make her own decision. I wonder how far she is into treatment since being admitted. If she is still mentally unbalanced then her decision is not really hers it is one made by the influence of her illness. I don’t care how eloquent she can speak that in itself does not speak to if she is deciding with a clear mind. Her consultant psychiatrist says 100% unable…cannot the decision be delayed or is the pregnancy to far along?

    • Yes, the pregnancy was too far along to delay. But you’ve missed the point that the entire reason for the hearing was to decide whether she was too ill to make a decision and she isn’t. That’s the whole role of the Judge in this situation. The psychiatrist and the Judge reviewed the same facts and came to difference decisions. The Judge’s decision, however, is final – that’s the whole point of the Court. You cannot have “a bit of capacity” or be judged to “potentially able to have capacity after further treatment”. You either have it, or you don’t, and the Judge was very clear that she did. It is certainly not for us to question the Judge’s decision given that we have only the facts in the Court report and were not there. A legal ruling has been made.

  9. ngo says:

    We weren’t there so can’t effectively question the legal ruling, but I do think it is something that could/should be questioned. The judge has ruled that he does think she has capacity. Part of the reason given for making that ruling is that the judge happens to view the reasons she gives as ‘entirely rational’. One of the potential biases in capacity cases is whether or not the choice and reasons given for the choice are culturally accepted as ‘reasonable’. Although the law allows people to make ‘unwise’ or ‘irrational’ or no reason at all choices, the reality is that it is much harder to convince of capacity if your choice would be considered ‘unreasonable’.
    So, in this case, a judge who perhaps is influenced by a fairly common view in his society that it is doubtful whether severely mentally ill women should be mothers at all, is going to be far more likely to regard someone as reasonable who is expressing a similar view, and this will influence his view on whether or not that person has ‘capacity’.

    The crux of the issue then, is whether or not a woman with a mental health problem has been declared to have capacity, and therefore been allowed to make a decision that she may bitterly regret, largely as a result of culturally ingrained prejudice and disapproval towards mothers with mental illness.

    Of course, had the decision gone the other way, there would be equal dilemma (and fear) for bipolar women that their illness could be used as justifcation for taking away control over their own bodies.

    But then that is the nature of complex ethical dilemmas that we face in this messy existence of ours.

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  11. Pingback: MENTAL CAPACITY Act under Scrutiny: open for Evidence from You! | Victims Unite!

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