Harry Perrin

– 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.

‘Gnaeus Pompeius Magnus’ (‘Pompey’ or ‘Pompey the Great’)

– Harry Perrin (Independent Scholar and Trainee Solicitor)

It wasn’t all yo-ho-ho and a bottle of rum for the Ancient Romans when it came to pirates. By the fourth decade of the first century BC, Plutarch tells us, the pirates were so prevalent in the Mediterranean that ‘all navigation and all commerce were at a standstill’ causing resource shortages and volatile food prices. ‘Roman supremacy’, Plutarch continues, was ‘brought into contempt’ not only by the pirates’ ‘seizures of high ranking officials, and the ransoms which they demanded for captured cities’, but by ‘their flute-playing, their stringed instruments, their drunken revels along every coast.’ Evil crimes indeed.

The way in which the Romans dealt with the problem tends to spring to my mind whenever our country today is faced with situations billed as ‘emergencies’ or ‘extraordinary’.

The constitution of the Roman Republic in the first century BC was designed so that no one person could amass too much power over too prolonged a period: ‘an elaborate set of precautions against the accumulation of executive power in a single person’, notes Eric Posner, ‘to prevent the recurrence of monarchy’. There were two heads of state, the consuls, who held office for one year. The post which a consul would typically hold afterwards, the proconsulship – governing a foreign province in the Roman territories – was also limited in term to one year to prevent an already powerful individual accruing too much military might away from the watchful eyes of Rome.

If you are a fan of irony, you may already have spotted that from this Republic’s careful constitution sprang one of the most powerful empires we have known. Note also that Sulla, a constitutional reformer who tightened many checks and balances in 81BC (including limiting the proconsulship to one year), did so when he himself was holding dictatorial power on the basis of an emergency; and note the lex Gabinia.

One hundred and twenty thousand infantrymen, five thousand cavalrymen, five hundred ships, and the right to appoint twenty four powerful lieutenants, were among the resources allotted to Pompey by Gabinius’ law, passed in 67 BC, to combat piracy in the Med. In terms of territorial command, Plutarch notes that Pompey’s power over the sea and mainland areas up to fifty miles inland meant that ‘there were not many places in the Roman world which were not included.’ He had not only ‘the supreme naval command but what amounted in fact to an absolute authority and uncontrolled power over everyone.’ So much for the elaborate system of checks and balances.

Unsurprisingly with these resources Pompey dealt with the problem with incredible speed. Food prices dropped as soon as the lex Gabinia was passed and piracy was quashed within three months.

But Pompey did not surrender his power. Another ‘extraordinary situation’ justified Pompey not only keeping his naval command and resources, but being allotted further power over the Roman territory in the East, including the military forces already stationed there, then under the command of his colleagues Lucullus and Glabrio. The lex Manilia was passed to this effect in 66BC. The justification: war in the East, against Mithridates and Tigranes.

It is easy to turn history into linear narratives and morality tales with the benefit of hindsight, and history’s headlines should be questioned and re-questioned for accuracy and fairness. The headline point here is that the excessive accrual of power by Pompey clashed with the excessive accrual of power by Julius Caesar. Caesar crossed the Rubicon, said ‘the die is cast’; civil war, birth of the empire and the rest, as they say, is ancient history.

Headlines are memorable though, and I do remember the lex Gabinia whenever ‘emergency measures’ are proposed today. Take the detention of terror suspects. Until January 2011, the state could detain those suspected of terrorism-related offences, without charge, potentially without even telling them the reason for their detention, for up to 28 days. Unsuccessful proposals went before Parliament to raise this to ninety and then forty two days. The justification for prolonged detention without charge was that the country was in an extraordinary situation, and emergency measures were appropriate.

And were the laws put back to normal once the emergency had passed; once the pirates had been defeated, as it were? The detention-without-charge period was restored to fourteen days, but, as human rights group Liberty points out, this is still high compared with the USA (two days), Italy (four days), Canada (one day) and Ireland (seven days). Many would argue that the danger still exists here, that the pirates have not been conquered. This may or may not be so, but when a so-called extraordinary situation prevails for so long, it becomes the norm – it becomes ordinary – and we should discount any arguments based on the need to deal with an emergency in our assessment of whether laws in question are proportionate.

And take the trials following the summer 2011 riots, where courts sat throughout the night. Keir Starmer, Director of Public Prosecutions at the time, has praised the role of this swift administration of justice in curbing the disorder. Sentences for crimes committed during the riots were on average 4.5 times longer than those for similar offences in the previous year. This is not problematic per se, provided that due process was followed: judges can take account of the context of crimes when sentencing.

More of a concern is that due process was not followed. Solicitors who acted for defendants in the riot trials have voiced concerns, noting knee jerk reactions from judges, ‘conveyor-belt justice’, and a failure to distinguish between ringleaders and followers. A magistrate stated that the usual sentencing rulebook for children with no previous convictions had been ‘torn up and thrown away’.

The justification for the all-night courts was that the emergency in which the country found itself in August 2011 required an extraordinary response. This may well hold water. My concern though, and that of the defence lawyers cited above, is that these measures may have been disproportionate to the extent that they unjustifiably interfered with the defendants’ right to a fair trial.

I acknowledge that had the judiciary and the government failed to deal adequately with the riots, the consequences would have been dire – even more so than they were, and that all-night courts may well have been the best option. And the lex Gabinia may have been the right way of dealing with the pirates. Pompey succeeded where no other commander did. It is easy to point at it now as the beginning of the end of the Roman Republic, but if the pirates had prevailed, we might all be playing flutes and speaking pirate now. Aargh!

I have never been suspected of terrorism or rioting, or even piracy (though I have once exhibited drunken behaviour in a Mediterranean coastal-town). I do however urge the conscientious citizen to assess any proposals which have the potential to infringe on our rights or constitution and to bear in mind the lex Gabinia. Ask the following, because these issues matter to all of us:

Is the measure proposed proportionate to the issue it is proposed to deal with?
Are the reasons for justifying the measure sufficiently closely related to the measure, and if any of these reasons fall away (‘emergency measures’ when the emergency has ceased) is the measure still justified?
Has consideration of the proposed measure been properly weighed up against a consideration of its effects on the constitution and on our rights?

There we have it: the ‘caveat Gabinia’. I have just coined a phrase. Latin scholars correct my grammar before it catches on.

—North East Law Talk

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