Birth choices: mothers, medics and social services




– Harry Perrin (Solicitor)

Birth choices: mothers, medics and social services Harry Perrin (Solicitor) Standing up for yourself is not easy when you are lying on your back, and even the most robust people find it at least a little uncomfortable asserting their position to perceived authority figures. Women in labour face just this challenge in respect of the treatment they receive (or not) and the procedures to which they are subjected during birth; likewise for antenatal and post-natal treatment.

Know this: your consent must always be sought before any medical procedure is performed on you (Article 8 of the European Convention on Human Rights (ECHR) – right to private life, which the courts have interpreted as encompassing the right to physical integrity and autonomy).

And know this: the court has ruled that you have the right to refuse treatment even if doctors regard your decision as ill-advised (Re MB, 1997), even if it might lead to your death, and even if it might lead to death or serious harm to you or your baby (St George’s Healthcare Trust v S, 1997).

This might seem extreme at first glance but it is an important safeguard. Healthcare professionals on the ground might think one course of action is the right thing to do; the mother might think differently. This could apply to antenatal care (for example, attendance at check-ups and scans); during labour (consenting to a lumbar puncture or having an unassisted birth) or post-natal care (such as inoculations or other treatment). A court could try to determine the issue but, when the mother is in labour, there would obviously be no time. Just to concede to the doctor as the ‘expert’ would violate Article 8. The only safe position is for the mother to have the final say; in law at least, in theory. In practice, lines become blurred as these rights must operate alongside the statutory regime of safeguarding.

Healthcare professionals should inform social services if they reasonably believe that a child will be at risk of significant harm once it is born (Children Act 1989), but when this duty is used as a ‘threat’, to try to coerce the mother into allowing a particular treatment or procedure, it becomes less about statutory safeguarding and more about the undermining of legal rights. It is unclear whether the practice of doctors ‘threatening’ mothers and families with a social services referral before, during or after labour is widespread; it would be difficult to collect the data. My evidence is all anecdotal, but Birthrights, an organisation seeking to protect human rights in childbirth (on whose website I have gratefully relied for the law), clearly believes it is a danger sufficient to warrant specific advice to mothers.

The healthcare professional in this context may seek to rely on the mother’s refusal to undergo this or that procedure as evidence that she would be unable to act in her child’s interests once born. It is perhaps too flippant a retort to say that the mother’s choices were related to the birth process and thus would not be relevant once the child was born, but this does not put the doctor in the right. The healthcare professional who makes the ‘threat’ of a referral would presumably be seeking to change the mother’s mind, to make her make the ‘right’ decision. The threat, however, actually has the opposite effect: it makes the mother’s decision less reliable, less ‘right’. Consent is not freely given if it is influenced by a threat, and a doctor who carries out a procedure on a person where he/she knows (or should know) that consent has not been given freely is committing a battery and potentially a violation of Article 8 ECHR.

Moreover, it is by no means the case that a mother’s choice not to ‘co-operate’ with medical professionals will or should automatically warrant a referral to social services. Such a referral is only appropriate where the choice indicates a risk of significant harm to the child once born.

During labour, it may not be particularly easy for the mother or her birth partner to remember Article 8 ECHR, Re MB, St George’s v S and the Children Act 1989, less still to cite them in a coherent and compelling way; and this would depend on the healthcare professionals’ willingness to listen. The most powerful tool a mother or birth partner can have may simply be the confidence which comes from knowing their rights and knowing the procedure which would actually ensue if the threat of a referral to social services was carried out. The power of such threats lies in the unknown; in the imagination of the fearful mother who thinks the involvement of social services will equate to her child being taken away and placed into care. It is not so.

Firstly, the medical professionals making the referral should obtain the consent of the parents to do so unless seeking consent will place the child at risk. Within 10 days of the referral, an Initial Assessment should be carried out to gauge whether the child is at risk of significant harm: stage one in terms of social services’ continued involvement, should matters even make it this far. Should a finding of risk of significant harm be made at this assessment, the next stage would typically be an enquiry under section 47 of the Children Act. The enquiry is based on a ‘Core Assessment’, an information-gathering exercise to which relevant professionals contribute along with, crucially, parents and family members. It is the second stage in terms of social services’ involvement. The next step is a Child Protection Conference at which the information is analysed and any proposed actions set out in respect of keeping the child safe in the future: stage three. Bear this thorough process in mind when you are weighing up the likelihood of a referral leading to care proceedings because you did not want an ultrasound, had an unassisted birth, refused a lumbar puncture, or turned down inoculations. Will exercising your legal rights in ways such as these – in and of itself – really clear these hurdles and convince social services to apply to have your child taken into care?

Ultimately, only a court can make the decision to remove your child or take away your parental responsibility. A social worker cannot, and a doctor certainly cannot. There is a principle in family law known as the ‘no order principle’, in which the court must be convinced that making an order in respect of the child is better for him/her than making no order at all. Ask yourself the question again: will exercising your legal rights before, during or after labour really – in and of itself – convince a judge that making an order after the event would be better for your child than making absolutely no order at all?

It is filled with jargon and possibly scary, but it is worth knowing the process which would follow if a threat to make a social services referral were carried out. It indicates that some such threats will be empty; and that those that are not will not easily lead to care proceedings (at least not without other evidence which might indicate that you cannot care properly for your child). It reveals the social-services-equals-child-in-care equation which causes such fear, and from which such threats gain their power, as the misapprehension it is.

Fear during labour comes from lack of knowledge. This is as true for the physiological and spiritual sides of birth as it is for the legal. Empowerment and confidence come not from citing court cases or European legislation, but from the mother and her birth partner knowing their rights. Labour is no time for lying down.

Harry Perrin is a lawyer who helps people, organisations and businesses understand their rights, make informed choices, and achieve their goals through the best possible means.

Any views expressed are those of the author and should not be taken to represent those of his employer.

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