Appeal on forced birth is refused

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A pregnant woman who was detained under the Mental Health Act and forced to have a caesarean section was yesterday refused leave to seek a judicial review challenging the legality of the decision.

Mr Justice Popplewell said that Ms S, a 29-year-old veterinary nurse, had failed to launch the proceedings within the required three-month time limit and for that reason he was refusing her application.

Ms S, who cannot be named for legal reasons, wanted to prompt a ruling on whether the 1983 Mental Health Act can be used to detain a pregnant woman against her will and force her to undergo invasive surgery for a physical, rather than mental, disorder.

An appeal is likely and the Court of Appeal will have to decide whether the issues raised by Ms S outweigh the fact that her application for a judicial review came too late.

She launched the challenge against Louize Collins, the London Borough of Merton's social worker who formally applied for her to be detained in hospital under the Act, and the NHS Trusts running the hospitals where she was held and treated - St George's, Tooting and Springfield Hospital.

The courts were also being asked to decide whether, once a person was detained, hospital managers acted lawfully in denying her access to a court, "or even informing her that it is intended to apply for a declaration in the Family Division that the treatment to which she does not consent may be forced upon her".

Speaking after the hearing Ms S, who is now the mother of a 10-month girl, said that she was disappointed but would appeal against the decision.

The court heard that Ms S had a long-standing aversion to medical intervention, including injections and anaesthesia.

She had planned to go to Wales, where she had close friends, in order to give birth there, but when she was diagnosed with pre-eclampsia she was advised to have bed rest, said Richard Gordon QC.

"She explained to the doctor that she was feeling fit and well and wanted a home delivery. She also said that as a veterinary nurse she was aware of the risk of pre-eclampsia.''

But the doctors were fearful for the safety of Ms S and her baby and on 26 April, when she was 36 weeks pregnant, they obtained a court order for her to be detained and the caesarean section was carried out.

She said she was "angry and upset at being forced to undergo invasive surgery".

Mr Gordon told the court that after the operation Ms S found it difficult to bond with the baby and has suffered from flashbacks and post traumatic stress disorder.

"The hospital applied for treatment without telling Ms S, or giving her the opportunity to go to court and put her side of the story. It cannot be right that a person should remain in ignorance of the application until it is too late to do anything about it," he said.

"This case enshrines a number of points involving fundamental human rights.''

After the hearing, Barbara Hewson, representing Ms S, said: "This is a very important case for women generally and she has been turned away on a technicality.''

She said that immediately after the birth, Ms S had rejected her baby and had considered having her fostered.

One of the reasons for the delay in bringing the application was the battle which she fought with the social services for custody of her daughter, after initially rejecting the baby.

Once she had made contact with a solicitor, there had been long delays in obtaining medical records and the application was not launched until 6 December, seven months after she had been released from hospital.