By Adam Tanner, 20th November 2020
Editorial note: The judgment from this hearing has since been published and is available here.
On November 12th 2020, I observed a hearing before Mr Justice Poole which concerned KB, a woman in her 30s, who was said to have suffered an hypoxic brain injury at birth which led to “significant learning difficulties”. This woman, KB, was living with family and receiving care, iincluding constant supervision, by way of a direct payment from the local authority (represented in the hearing by Victoria Butler Cole QC). Despite this, KB was the victim of rape, and subsequently became pregnant. The NHS Foundation Trust (represented by Nageena Khalique QC) had applied to the court to carry out a Caesarean section – and an order was granted to permit this.
KB was said to have no ability to understand the reality of pregnancy. Counsel for KB via the Official Solicitor (Bridget Dolan QC) said that KB could not comprehend that a baby was growing inside of her. As a result of her learning difficulties, she was unable to verbalise beyond an occasional yes/no and it was deemed that she would not be able to undergo a vaginal birth. In his judgment, Mr Justice Poole said that the evidence shows that KB’s lack of understanding is “profound” and that she would “not at all understand the reasons for the medical interventions” involved in a vaginal delivery. It was said by counsel for the Trust on a number of occasions that KB would not be able to follow “professional instruction” during a vaginal birth. As such, the Trust believed that a vaginal delivery could be potentially traumatising for her.
It was also stated during oral judgment that it would be lawful to use “reasonable and proportionate measures” including physical or medical restraints to enable the transfer of KB from her home to the hospital. However, all evidence was that KB would be cooperative and that she has never demonstrated any serious non-compliance.
The NHS Foundation Trust had initially planned to seek an application for a non-therapeutic sterilisation procedure for KB, to avoid this kind of situation happening again. Sterilisation was quite rightly (in my view) called “draconian” by Ms Dolan QC. KB is a person with profound learning difficulties, who has never expressed any sexual desires or wishes. She was the victim of rape; she did not want to get into the position in which she now finds herself. Ms Dolan noted that sterilisation has only been authorised by the Court twice in the past 30 years on women who lacked capacity, and each of those times it was because the person was demonstrating the desire to engage in a sexual relationship. The Trust said that they would conduct a further roundtable meeting and move the decision about sterilisation to a later date. The judge noted that there is a “global and complex picture” which needs to be considered before any such decision can be made. I hope they will decide not to allow any form of sterilisation of a woman who did not ask for, wish for, or desire any of this to happen to her.
Throughout the hearing, there was criticism levelled not at any particular person but at the failure of the system in allowing such a lengthy delay before this case came before the Court. Further to this, concerns were raised when KB was 22 weeks pregnant about whether or not termination should be sought; however, repeated delays meant that, by the time KB saw a specialist consultant (when she was 24 weeks pregnant) that was no longer a viable option. Counsel for the Trust did, however, note that KB’s mother would have been against termination of pregnancy in any event. The judge remarked that KB might well have been so far along that the termination may have required the induction of labour, which would have been traumatic for KB.
Towards the end of the hearing, a representative of the Press Association, Mr Brian Farmer, raised an issue with the fact that all those who are present in court are prohibited (by the Transparency Order) from naming the local authority, the police force and the NHS Trust. Brian Farmer made the point that it was a matter of public interest which public bodies are involved, so that they can be held to account.
Counsel for KB via the Official Solicitor said that, although it is normal to name public bodies in Court of Protection hearings, in a case of this nature – where KB had been a victim of a sexual offence – there is a risk that naming them might identify KB and she is entitled to her anonymity. Mr Farmer, therefore, stated his intention to launch an application to vary the terms of the Transparency Order, stating that Mr Justice Hayden has been very clear that the Court of Protection should not be a secretive court.
Mr Farmer also noted, and the judge said he would pass it on to the Vice-President, that the new ‘transparency order’ regime is less transparent than the old regime. He argued that the old regime of reporting restriction applications meant that the orders named the parties and provided a case summary. Now, he said, it is essentially a guessing game what COP hearings (in the Royal Courts of Justice) are about until the case is being heard.
I believe Mr Farmer is entirely correct in his wish to vary the terms of the Transparency Order. There were a number of other restrictions placed on reporting this case which limit an array of matters concerning KB from being discussed, most of which are not, in my view, of public interest. It is, however, of public interest to know which local authorities may be responsible for rather serious breaches of safeguarding. There is a risk that the scope of the Transparency Order – which prevents naming the public bodies involved – will mean that the Court continues to attract the stigmatising label of the ‘secretive court’ which has so often appeared in the press. The Court allows journalists and members of the public into hearings, but if we cannot then hold the responsible bodies to account, there is little point to us being there in the first place.
This is an extremely serious case, with consequences that will go far beyond KB, as much investigation is yet to be done into how, in my opinion, the system managed to fail her in so many ways.
Adam Tanner is a PhD researcher in mental capacity law and has contributed previous blogs to this Project (e.g. here). He tweets @AdamrTanner
Editorial note: An earlier version of this post was published at 8.00am on Monday 16 November 2020. We removed it from our site at 8.22am the same day in response to a message from Victoria Butler Cole QC (counsel for the local authority) advising us that there were factual errors. The post has been corrected to address these – and the author also took the opportunity to fact-check and rephrase some sentences that may have been ambiguous or unclear in the first version. We were advised as follows:
”1. The blog states that the woman whom the proceedings concern had a ‘supportive package with professional carers’ and that she was ‘under the constant care of her local authority’. KB was living with family and receiving care by way of a direct payment.
2. The blog says there was ‘serious criticism levelled not at any particular person but at the system which allowed a vulnerable woman to be raped while in the care of the local authority’. Again, there was no criticism made on this issue within the court hearing. The only opinion the judge expressed was that he felt the application by the Trust should have been made sooner.” (Email from Victoria Butler Cole, 18.24pm on Monday 16th November 2020)
We are grateful for the opportunity to make these corrections.