A Local Authority and M (By his litigation friend via the Official Solicitor) v E and A (Respondents)  EWCOP 33 (11 August 2014) – read judgment
It’s been an interesting week for the extreme fringes of maternal care. The papers report a trial where a mother is being prosecuted for administering toxic levels of medication to her daughter for “conditions that never existed” (as the court heard). Let’s see how that pans out.
And now the Court of Protection has published a ruling by Baker J that a a supporter of the discredited doctor Andrew Wakefield embarked on an odyssey of intrusive remedies and responses to her son’s disorder, fabricating claims of damage from immunisation, earning her membership of what science journalist Brian Deer calls the class of “Wakefield mothers.”
On the face of it, the detailed and lengthy judgment concerns the applicant son’s reaction to the MMR vaccination when it was administered in infancy, and whether it was the cause of his autism and a novel bowel disease, the latter being Wakefield’s brainchild. But at the heart of the case lies the phenomenon that we all used to know as Munchausen’s syndrome by proxy.
Baker J was at pains to emphasise that this was not a case about the link between MMR and autism, nor was it an inquiry into whether there is a form of colitis associated with autism. Autistic enterocolitis, or “leaky gut syndrome”, is not a recognised condition in orthodox medicine. As Brian Deer puts it,
This is a novel condition, not accepted by medical opinion, masterfully discovered by Wakefield for the (long-since-failed) lawsuit, that cost the taxpayer £26.2 million in payments to lawyers and doctors, of which he got more than £435,000. For ten years, the boy suffered a “severe gut disorder”, “E” said, although nowhere could the court find any record of such a problem, and the Royal Free only noted constipation.
But this case was not an attack on the authenticity of leaky gut syndrome, any more than it was an inquiry into the efficacy of diets, supplements and alternative treatments and therapies, either generally or specifically for people with autism.
The issue to be determined in these proceedings was whether the mother had acted in M’s best interests. The reason why E was in the frame was that in 2011 a district judge had allowed her to be M’s ” legal “deputy”, which means, under the 2005 Mental Capacity Act, she had total control of his affairs. Provided she acted in his best interests.
The judge concluded that she had not. In reaching this conclusion, Baker J does not mince his words:
In 35 years of family law and in the Court of Protection, dealing with many hundreds of families, I have rarely, if ever, come across someone who is so difficult to work with, who presents so many challenges to hard working professionals and who takes up so much of their valuable time and resources.
I therefore make the findings sought by the local authority: that E [the mother] controls all aspects of M [her son]’s life and does not allow him to develop his independence, restricts access to M and information about M and is unable to work with professionals. In closing submissions, Mr Bagchi [witness for the Official Solicitor] submitted that this degree of control was unnecessary, unreasonable and constituted a suppressing effect on M’s life. I agree.
The applicant, M, is a 24-year-old man, born in July 1989, and who had lived with his parents for eighteen years. He had his first vaccinations at six weeks and at eight months, with no records of any adverse reactions. The first relevant concern was in May 1990, when he was aged 10 months. In an account taken many years later , his parents gave “increasingly vivid” accounts of an extreme reaction to the injection experienced by M.
In 1992 his developmental delays had been diagnosed under the general heading of “autistic learning difficulties”. As Baker J mentions later on in his judgment, there is no such formal diagnosis in the international classification systems, although it is a term often used informally to describe the regression that can occur at about aged 16 to 20 months. M’s parents subsequently subjected him to a regime of alternative and complementary treatments, in particular homeopathy, cranial osteopathy, reflexology, naturopathy and light and sound therapy.
In February 1998, Dr Andrew Wakefield and others published a paper in The Lancet which suggested a link between the MMR injection and autism and a condition they named “autistic enterocolitis”. The subsequent history is well known – his studies were found to be erroneous, he resigned from the Royal Free Hospital and was finally struck off the Medical Register for professional misconduct. As Baker J observed,
The preponderance of medical opinion is that there is no evidence of any link between the MMR vaccine and autism, and that the actions of Dr Wakefield were, at best, misconceived and, at worst, fraudulent. It is said that, as a result of his activities, many parents have decided against permitting the vaccination of their children, with significant adverse consequences for public health.
Nevertheless there remains a degree of support for his theories, in particular by a group of parents who are convinced that the autistic traits identified in their children are attributable to the MMR vaccine. A group action taken by these parents was cancelled when the Legal Services withdrew funding.
From his late teens there had been several court proceedings concerning the family, culminating in this case, brought by the local authority in the Court of Protection, seeking orders as to M’s future residence and care. His mother, E, had been appointed his welfare deputy under the 2005 Mental Capacity Act. The local authority asserted that M was not an appropriate deputy, having subjected her son to a regime of “excessive control” over every aspect of M’s life. More seriously, the local authority alleged that E had fabricated accounts of M’s health problems and subjected him to unnecessary assessments and treatments, as well as imposing on him an unnecessarily restrictive diet, with a range of unnecessary supplements.
Background to these proceedings
From 2008 M attended a series of special institutions for people with autism. In each one of them, the staff expressed concern about the level of control over M exercised by his mother. She provided a strict dietary programme for M to be followed by the staff, regular health bulletins on his return to the unit after weekends at home and a list of all the treatments and supplements to be given to him. By this point, according to a list prepared by E and A, the range of biomedical interventions being supplied to M included “a probiotic, six vitamin supplements, four mineral supplements, five trace elements, fatty acids, amino acids, enzymes and a range of homeopathic remedies.”
In February 2011 the local authority filed an application in the Court of Protection proceedings seeking, inter alia, orders setting aside the appointment of E as M’s deputy, authorising M’s continuing at “Y” House, prohibiting E and A from removing M from Y House without the local authority’s consent. These applications were subsequently withdrawn and M returned home.
In July 2013 the local authority started these proceedings in the Court of Protection seeking orders (1) permitting the authority to remove M from his parents’ home and either return him to the institution where he had been cared for or place him in independent or supported living; (2) that he should not take supplements or medication unless prescribed by a doctor or considered necessary by his carers; (3) that professionals and care staff were not required to follow E’s instructions regarding M’s care and (4) removing E as his deputy.
By the time the application came on for a hearing the local authority had applied for the immediate removal of M from the care of E and A and this was supported by the Official Solicitor. At the conclusion of that hearing on 6th March 2014 Baker J authorised M’s removal the following day, into an emergency placement at an establishment – “N House” – some sixty miles from the family home and in a different county.
In the course of the hearing it became clear that E, and perhaps also A, saw themselves as the victims of a network of three conspiracies.
- They asserted that there had been a systematic conspiracy by the medical profession to conceal the truth about the effects of the MMR vaccine and its links with autism.
- They argued that the employees of this local authority have fabricated a case against them with the aim of removing M from their care for financial reasons.
- They contended the Official Solicitor, far from representing M properly in these proceedings, has used them as an opportunity to pursue an agenda of undermining the prospects of future litigation about the MMR vaccination
Baker J summarised the principles behind the establishment of lack of capacity to be followed by the Court of Protection under in s.1 of the Mental Capacity Act 2005. He also set out the statutory, case law and ECHR requirements for the test of “best interests” of the person who lacks capacity. He then considered the opinion of the psychologist, Dr Beck, instructed as an expert witness in these proceedings with regard to E’s approach to the proceedings. Dr Beck described E’s account at times as “self-aggrandising and dismissive of the contribution of others.”
She found that the mother seemed to regard herself as superior and adopting a patronising attitude. The same tendencies were apparent in her oral evidence and at other times in the hearing, particularly towards the staff at the various homes where M has lived. Dr Beck thought that E’s manner reflected the fragility of her intra-psychic structures. In Dr Beck’s opinion, E relies heavily on M’s needs and complaining about them not being met to provide structure and meaning to her life. It is Dr Beck’s view that E:
“needs M to be a victim so that she can save him and meet her own needs for attention, to be important and to be cared for.”
Dr Beck also expressed the view that E had factitious disorder imposed on others – the current designation of Munchausen syndrome.
The Court’s findings
Baker J noted his satisfaction with all the expert witnesses called by the Official Solicitor. But he voiced his concerns about the qualifications and the approach of some of E’s witnesses, particularly the practitioner responsible for diagnosing M’s “Lyme disease” symptoms and prescribing a diet for him without consultation. Most significantly, none of E’s witnesses had received any training on the Mental Capacity Act 2005 and it was “clear from their evidence that none of them had given proper consideration to the question whether M had capacity to consent to their assessments or the treatment they were prescribing”:
This case has highlighted the urgent need for all health professionals, including those practising in alternative and complimentary medicine, to familiarise themselves with the Act so that they can apply its principles and procedures when they treat a person who lacks capacity, as most of them will at some point.
As to E’s claims about M’s response to the MMR vaccine, the judge set out the only three possible explanations for what had happened.
- E did give the account to all the GPs involved in M’s treatment, but each of them has negligently failed to record it.
- She gave an account but all the practitioners had chosen not to include it in their records. That is what E maintained had happened, alleging that the whole of the medical profession was deliberately concealing the truth about the MMR vaccine.
- E had fabricated, or at least grossly exaggerated, her account.
Mass negligence, in Baker J’s view, could obviously be discounted. It was also “completely fanciful” that the whole of the medical establishment had decided to act deceitfully in the way alleged by E. He therefore could only conclude that the account given by E as to M’s reaction to the MMR had been fabricated.
The judge therefore found that E’s behaviour amounted to factitious disorder imposed on others.
It was suggested by E in the course of the hearing, relying on material available on the internet, that the diagnosis was made without justification, as a means of attacking mothers of children with autism with a view to removing them from their care. I have no reason to believe that there is any basis for this assertion, but it certainly does not apply in this case. I am sure that the diagnosis of factitious disorder in this case is valid.
Whilst his return home would have been theoretically desirable, such was the influence of the mother on M’s sister and father, they would be “unable to protect M from the risks that would arise were he to return home”. The judge’s interim order was that M should in the medium-term institution pending a long-term move into supported living. As for E’s role as his deputy under the 2005, he had this to say:
E has grossly abused her position as deputy, and there is no question of her being reinstated. She is the last person who should be entrusted with that responsibility, and her application to be restored as deputy is refused.
The question whether a deputy should be appointed was adjourned to the next hearing.
As we can see from this litigation, there is no shortage of snake oil vendors who will rush to the help of certain vulnerable people, particularly parents struggling with the arduous task of managing autistic offspring. As Baker J notes drily, “whether what they are offering is truly helpful is debatable.”
This extensive and expensive series of proceedings also demonstrates the tendency of certain people to regard litigation as an opportunity to conduct an independent inquiry into some controversy or issue which is independent of the case before it. In this case, M’s parents actually requested that the court took steps to recommend an independent inquiry into the use in this country of the Urabe strain of the MMR vaccine. Baker J suspected that part of their aim in this litigation was to bring about such an inquiry.
I do not propose to make any such recommendation, not least because, as I have found, M’s case has nothing to do with the MMR vaccine, save in the false accounts given by E. Suffice it to say that nothing has emerged in the course of this case to undermine the prevailing view quoted above that the overall evidence clearly indicates no association between the MMR vaccine and autism.
There had been no evidence, before the court or anywhere else, that M’s autism had been caused by the MMR vaccination. This fabrication was compounded by many other false accounts given by E about her son’s health. He had never had meningitis, autistic enterocolitis, leaky gut syndrome, sensitivity to gluten or casein, disorder of the blood brain barrier, heavy metal poisoning, “autonomic dysautonomia”, rheumatoid arthritis or Lyme disease.
This behaviour amounts to factitious disorder imposed on another. In addition, E has a combination of personality disorders – a narcissistic personality disorder, histrionic personality disorder and elements of an emotional unstable personality disorder.