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.