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Re AA and Re P (A Child): the ‘forced caesarean’ case
On 30 November 2013 The Telegraph reported that Essex County Council Social Services had obtained a High Court Order against a woman that allowed her to be forcibly sedated and her child removed by caesarean section and taken into care.1 The original story reported that the woman, an Italian national who had been in the UK on a short-term basis for work, had experienced ‘something of a panic attack’ and, after calling the police, was compulsorily detained under the Mental Health Act 1983. Five weeks later, the report said, she was restrained, forcibly sedated and awoke hours later to find that, pursuant to a court order obtained by Essex County Council Social Services, her baby had been removed by caesarean section and taken into care by social workers.
The story was subsequently reported in a number of other media outlets and prompted such widespread outrage that the presiding judge, Mr Justice Mostyn, took the unprecedented step of releasing both the judgement of the initial application to the Court of Protection and the verbatim transcript of proceedings. It became apparent that the facts of the case had been drastically misreported by the media and that coverage had conflated two very separate issues: the medical procedure of the caesarean section and the taking of the child into local authority care.
The initial case heard in the Court of Protection on 23 August 2012, Re AA,2 was the result of an application made not by the local authority or social workers seeking to remove the child but by Mid-Essex National Health Service (NHS) Trust seeking a declaration and an order, on the basis of medical evidence, that the patient lacked capacity and that it would be in her best interests to undergo a caesarean section. Mr Justice Mostyn found in favour of the NHS Trust, holding that:
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The interests of the unborn child were of no concern to the court as the child has no legal existence until he or she is born. Accordingly, the case fell firmly within the guidelines of Re MB (Medical Treatment)3 and the Mental Capacity Act 2005.
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The mother had been detained under s. 3 of the Mental Health Act 1983 as she suffered from a ‘significant mental disorder’ which caused her to suffer from ‘psychotic episodes’ and ‘delusional beliefs’. Although the fact of detention does not necessarily mean that a person lacks capacity, it was agreed by all, including her counsel, that due to the nature of her illness, she lacked capacity under s. 2 of the Mental Capacity Act.
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Accordingly, it was for the Court to make a decision based on her medical best interests. On the basis of clear evidence from a consultant obstetrician of a significant risk of uterine rupture from natural vaginal delivery and from her own consultant psychiatrist that it would be in the best interests of her mental health to have her child born healthy and alive with minimal distress, it was held that an order should be granted for a caesarean section.
As per the advice of Mr Justice Mostyn, Essex County Council Social Services subsequently obtained an interim care order after the child (P) had been born, on the basis that the mother was too unwell to care for the child. In the entirely separate care proceedings which ended on 1 February 2013, His Honour Judge Newton made it clear that this case was solely concerned with P's welfare and what was in her best interests. Having regard to the ‘profound unwellness’ of the mother and the uncertainty of her managing her condition and in the light of evidence suggesting that children should be settled by the time they were 9 months old, he found that it would not be in P's best interests to be in the care of her mother and a full care order was granted. A statement released by Essex County Council4 emphasised that a decision to remove a child from their parents was never one considered lightly, and that they had liaised extensively with the relevant family members and Italian authorities in making their decision.
Turkish health bill becomes law
In previous ethics briefings we have drawn attention to threats to medical neutrality emerging in Turkey following civil unrest in the country during 2013. We reported that the Turkish Health Ministry had threatened to withdraw medical licences from doctors who had treated injured protesters in Gezi Park in Istanbul.5 We also reported that the Turkish Government was in the process of framing a draft Bill designed effectively to outlaw any emergency interventions by qualified medical practitioners who are not given explicit government authorisation to intervene. Legal sanctions would include heavy fines and imprisonment for up to three years.6 In January 2014 the Bill was passed by the Turkish Parliament. Article 46 will now effectively restrict the ability of medical professionals to provide care in emergencies, stating that unauthorised personnel would only be allowed to provide treatment ‘until the arrival of formal health services and health service becomes continuous’. These provisions will effectively put doctors in direct conflict with their ethical and professional responsibilities to care for the sick and wounded. Article 46 is also in direct contradiction to Articles 97 and 98 of the Turkish Penal Code, which makes it a crime for medical personnel to neglect their duty of care by failing to provide emergency medical treatment for those who need it.7 In December 2013 the UN Special Rapporteur on the Right to the Highest Attainable Standard of Health, Anand Grover, spoke of the Bill's ‘chilling effect on the availability and accessibility of emergency medical care in a country prone to natural disasters and a democracy that is not immune from demonstrations’.8
Changes to migrant entitlement to free healthcare announced in the UK
The Department of Health and Home Office have announced wide-ranging changes to the entitlements of migrants to NHS treatment in England and the UK.9 ,10 The announcements followed a public consultation on the current system for charging overseas visitors. The review focused on two main issues: that the current entitlements to foreign nationals were ‘overly generous’ and that the system for identifying chargeable migrants and recouping debts was complex, flawed and open to abuse. The consultation proposals were supported by independent qualitative11 and quantitative research12 that sought to provide an accurate breakdown of the number and different types of overseas visitors treated by the NHS, the associated costs for each group and attitudes among NHS staff to the way the current system works.
Entitlement to free NHS treatment in England is determined by the test of ‘ordinary residency’. Individuals who are not judged to be ordinarily resident are chargeable for the treatment they receive unless they meet the criteria for one of the exemptions in the charging regulations.13 Examples of groups who are exempt under the regulations include asylum seekers, refugees and victims of human trafficking. Certain services are also exempt from charge for everyone, such as treatment for communicable diseases. The regulations currently in place only apply to care provided in a hospital (secondary care) and do not allow for NHS charges to be applied in other settings.
Following the public consultation, the Government announced a number of measures to reform the charging system. The definition of ordinary residency (deemed to be too generous a test as it can be satisfied by many new and temporary migrants) is to be tightened so that only those with indefinite leave to remain in the UK will qualify. A health surcharge for non-European Economic Area temporary migrants on visas of six months or more is also to be introduced, which is intended to represent a fair contribution from migrants to the cost of their healthcare while they are in the country. The surcharge forms part of the Immigration Bill which, if enacted, will apply UK-wide.
In England, among other measures, charging is to be extended to primary care and emergency services. Consultations with a general practitioner will remain free of charge—a concession to the concerns raised by respondents about the public and individual health risks of creating an economic barrier to medical assessment—although other primary care services may be chargeable. The Government has also stressed that no-one will be refused treatment in an emergency, although this may incur a charge. To support the proposals, a new system for checking eligibility is to be introduced that will identify and track chargeable migrants through the system.
Much of the media coverage of the consultation and the announcement focused on so-called ‘health tourists’, individuals who travel to the UK with the explicit intention of accessing care for which they would otherwise be ineligible. The population of chargeable patients is diverse, however, and ranges from visitors from the European Economic Area (for whom the costs of some treatment can be claimed back from the relevant member state) to often vulnerable undocumented migrants who require care while in the country but may be destitute and have no means to return home or to pay for their own treatment. Furthermore, the estimated costs of treating health tourists are lower than other categories of chargeable migrants according to the research.
A key focus for the government is the money that can be returned to the Treasury by modifying the system and identifying more chargeable patients. The Government has announced that they hope to save £500 million through the changes. It is generally recognised among doctors and other healthcare professionals that finite resources have to be prioritised and systems need to be in place to charge ineligible patients, but a tension can exist between the need to identify and charge patients and a doctor's primary duty to make the patient their first concern. In response to the consultation, healthcare organisations emphasised the need to continue to provide access to immediately necessary treatment irrespective of an individual's residency status (even if a fee for the treatment will be levied subsequently). A further theme in the debate, in addition to concerns regarding the practicality of the proposals and issues relating to cost-effectiveness, was that health professionals did not want to act as quasi immigration officials by playing a role in identifying or assessing the entitlement of overseas patients. Healthcare professionals and their representative organisations argued this is not their role and could risk damaging the doctor–patient relationship. This concern was acknowledged by the Government, although it stated that healthcare professionals would be expected to play some role in supporting the administration of the system.
Footnotes
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Competing interests None.
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Provenance and peer review Commissioned; internally peer reviewed.
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