She was kept waiting for 10 hours, not allowed to leave, and then detained under section 2 of the Mental Health Act 1983. This process requires the involvement of two doctors, and an ‘approved mental-health professional’ (usually, a social worker), who by law are required to sign certain forms to certify that she suffered from a mental disorder of such a nature or degree that she required detention in hospital for assessment, in the interests of her own health and safety or to protect the public. It is unclear if in reality she was being detained by reason of her mental disorder, or because she was pregnant. She says that when she was formally detained, a policeman dragged her from the room, breaking her watch.
A detained mental patient has an automatic right to a solicitor on free Legal Aid, and to have their detention reviewed speedily by a Mental Health Review Tribunal.
Needless to say, nothing in the extremely perfunctory application subsequently made to the Court of Protection on 23 August 2012 casts any light on whether Ms Pacchieri was afforded access to these basic legal safeguards. Importantly, once she had been detained for 28 days under section 2, it appears the hospital then had her detained for ‘treatment’ under section 3. Such an indefinite detention requires that the patient’s nearest relative be notified first, because the nearest relative has a right to object, under section 11(4)(a). Again, history does not relate whether Ms Pacchieri’s family in Italy were informed of their right to object to her continuing detention in Britain. She says she was moved to Broomfield Hospital in July.
It is unclear why Ms Pacchieri’s mental disorder could not be sufficiently stabilised prior to her due date. It is unclear what antenatal care she received. As the Trust claimed to know her due date, it seems likely that she was given a scan. It is unclear if she was offered the support of a specialist midwife. It is unclear what attempts were made to involve her in a plan of care for the birth. It is unclear if her family were invited to visit her. Ms Pacchieri was aware of her pregnancy, and could feel the baby move. Being incarcerated in a foreign country in her condition, under a foreign legal and healthcare system, must have been little short of a nightmare.
Involving the court
For reasons which seem driven more by considerations of expediency than anything else, Mid-Essex NHS Trust decided to have Ms Pacchieri made a patient of the Court of Protection, claiming that she lacked the mental capacity to decide how to give birth. They did this behind her back. A locum consultant psychiatrist, Dr Adimulam, wrote two letters on 14 and 20 August, stating that she had a schizophrenic disorder of a psychotic nature. Nothing was said in court about what medication she was on.
A short unsigned statement was obtained from a consultant obstetrician, Mr Spencer. The gist of this was that the risk of scar rupture in a vaginal birth was 1 per cent, and that if Ms Pacchieri went into labour naturally, she might dissemble about her symptoms or be uncooperative. Neither professional explained what (if any) efforts had been made to discuss a plan of care with Ms Pacchieri. Given that she had already had two C-sections, and was looking forward to holding her baby, this omission is surprising, to say the least. Ms Pacchieri maintains she wanted a natural birth. She also says social workers told her that her baby would be taken into care, when born.
The hospital decided that Ms Pacchieri should be subjected to a C-section on Friday 24 August 2012. Its counsel rocked up in court at 16.16 on Thursday 23 August, armed with this minimal information from the doctors, and saying nothing about Ms Pacchieri’s views and wishes. The official solicitor was invited to act for Ms Pacchieri, again without her knowledge, and instructed a QC not to oppose the application! He said nothing about Ms Pacchieri’s wishes and feelings either.
So the application went through on the nod. The hearing concluded at 16.50. The judge said that she was not to be told about the order until afterwards, making the bizarre observation: ‘If she disagrees with it she can apply afterwards to discharge it.’ This was obviously designed to pre-empt any meaningful appeal, and makes a mockery of due process.
English law does not recognise the unborn as a legal entity. Much of the discussion in court was about whether the judge could require the local authority to apply to him for an interim care order, once the baby was born. The judge voiced concern at the police taking the child into care under emergency powers after the birth. He suggested that, as he was the applications judge the following day, the local authority should apply to him. It chose not to.
The local authority clearly knew about Ms Pacchieri’s situation. It probably had convened a case conference, and may have even put the unborn child on the ‘at risk’ register. After the operation, it obtained an order from the local county court very quickly. It must have been liaising closely with the Trust.
Ms Pacchieri has told reporters how on 24 August 2012 she found her unit locked, was denied breakfast, was surrounded by five staff, and was forcibly sedated by an injection into her leg. Afterwards, she found that some of her clothes had been cut off. She was allowed to hold and feed her baby briefly, and then it was taken away. It is hard to imagine anything more traumatic or, indeed, degrading.
There are so many things that appear wrong about the way this matter was handled, it is difficult to know where to begin. If Ms Pacchieri had had solicitors to help her challenge her detention, why were they not involved in discussions about her care? Why was the application to the Court of Protection made so precipitately? Why did the judge think that a one-per-cent risk of uterine rupture is ‘high’? It is not remotely high.
Ironically, the lack of evidence supporting the need for a third C-section goes back to 1991, when Lawrence Roberts reported in the British Journal of Obstetrics and Gynaecology: ‘There is no conclusive proof of an increase in scar dehiscence during labour after two Caesarean sections and the manner in which we have come to believe that there is should be an embarrassment to all who consider obstetrics to be a scientific speciality.’ He called it ‘the myth’ (1).
The Royal College of Obstetricians and Gynaecologists’ September 2008 booklet for patients, Birth after Previous Caesarean, states the risk is only 0.5 per cent: about two to eight women in 1,000. The chances of rupture (as opposed to dehiscence) increase with induction of labour. This all has to be set against the risks to the woman of a surgical delivery, which involves major abdominal surgery, which carries its own risks. None of these, incidentally, was mentioned in court. The booklet states: ‘There are very few occasions when VBAC [vaginal birth after Caesarean] is not advisable.’ (2)
The NICE clinical guideline 132 of 2011, updated in 2012, states that the risk of rupture in women who have had up to four previous C-sections is ‘rare’. Appendix C gives the risk of uterine rupture during a planned C-section as 0.02 per cent - note that it can happen during surgery as well - and the risk of uterine rupture during a planned vaginal birth as 0.03 per cent. These differences are marginal.
It’s also surprising that the case of C was not mentioned in court. Re C (Adult, refusal of treatment)  1 All ER 819 concerned a paranoid schizophrenic in Broadmoor, who had gangrene in his leg. He believed he was a world-famous doctor, who could cure himself. The hospital wanted to amputate. A judge met C, and decided that his delusions did not prevent him having capacity to refuse treatment. So why was Ms Pacchieri treated differently?
Finally, it is unclear why Ms Pacchieri and her baby could not have been transferred to a specialist mother-and-baby psychiatric unit, where they could have been cared for together.
The rushed application to the Court of Protection; the absence of any reference to Ms Pacchieri’s human rights (which speaks volumes for their inutility); the lack of any clearly articulated evidence that she lacked capacity to determine her mode of delivery; the judge’s misunderstanding of the level of risk; the denial of any meaningful right of appeal; and the level of professional mistrust in the patient herself – these things do not inspire confidence, to say the least. The fact that the official solicitor, an agent of the state, acquiesced in this fait accompli also does not inspire confidence in his role as defender of the vulnerable.
Ms Pacchieri was described as being at term at 39 weeks, but birth could have occurred naturally up to three weeks after that, before she would be deemed to be ‘post-dates’. The real problem appears to have been the fear that she might not cooperate during a physiological birth. But if the professionals involved would not engage with her, preferring to talk to lawyers behind her back, and have a court order made without her knowledge, what hope was there of getting her cooperation? And how was this Kafkaesque approach supposed to promote her mental health? One cannot help feeling that she was being treated more like an unexploded bomb, which required dismantling, than a vulnerable mother-to-be.
It’s interesting that the county court later expressed concern about the summary manner in which Ms Pacchieri was escorted back to Italy after the birth, when she was still very unwell. This does raise the question of why she could not have been escorted back to Italy much sooner, to have the baby in her home state. In short, the UK seems to have treated this woman unjustly and very badly indeed.
Barbara Hewson is a barrister in London with experience of forced C-section cases.