Some mothers worry that, if they reject medical advice to give birth in hospital, they might be threatened with legal action to force them to attend hospital, or even a forced caesarean. This concern could apply even if the mother did not have any medical indication for a caesarean; several cases of forced caesareans have arisen where doctors advised induction, rather than a caesarean. When the mothers refused induction, doctors applied for court orders to allow them to perform a caesarean because it would be easier to ensure compliance with this than with an induction.
Fortunately, this should not happen any longer. Legal and professional guidelines have been clarified after several court judgements in the late 1990s, and it is now well established that a mentally competent pregnant woman cannot be forced to attend a hospital, or accept treatment, against her will.
One landmark case concerned S, a veterinary nurse, who was sectioned under the Mental Health Act, and then subjected to a forced caesarean for pre-eclampsia after her doctors obtained a court injunction to dispense with the need for her to consent to treatment. The judge who issued the order did not ask whether S was mentally competent, but simply granted the request of the health authority's solicitors. S was in fact mentally competent - she merely disagreed with her doctors' proposed treatment. She was not represented at the hearing when her doctors sought a court order, nor was she even informed that they were seeking one (Incidentally, it was by no means certain that S or her baby would have died had she not been operated upon, although it was a high-risk case). The Court of Appeal later awarded her damages for false imprisonment and trespass to the person. You can read more about this case in pages linked from note [1] in the 'Notes and References' section below.
The judges in the case of S ruled that ex parte High Court declarations (where only one side is heard by the judge) do not protect doctors and hospitals from later being sued for trespass, and that patients must be represented at court hearings. This means that it is highly unlikely that anybody, mentally competent or not, will have surprise court orders for medical treatment sprung upon them in future.
The Court of Appeal also reaffirmed the absolute right of a competent adult to refuse medical intervention, even if the result would mean that she or her baby died. The judges issued guidelines that, where a patient refuses to consent to medical treatment:
The Mental Health Act should not be used just because somebody rejects medical advice:
"The Act cannot be deployed to achieve the detention of an individual against her will merely because her thinking process is unusual, even apparently bizarre and irrational, and contrary to the views of the overwhelming majority of the community at large." (Lord Justice Judge, [2])
It is not just the courts which have warned against forcing medical treatment on a pregnant woman. In 1994, alarmed by the first cases of forced caesareans in the UK, the Royal College of Obstetricians and Gynaecologists issued ethical guidelines on the subject. These guidelines were apparently ignored in the case of S, but nonetheless they still stand. They include a detailed discussion of the relevant legal history, and state:
3.10.1 Although obligations to the fetus increase with its growth in utero, UK law does not grant it any legal status. This comes from the moment of birth.
3.10.2 The law does not limit a woman's freedom because she is pregnant. Her bodily integrity cannot be invaded on behalf of her fetus without her consent. The fetus has no remedy against injuries caused by her....
5.11 A doctor must respect the competent pregnant woman's right to choose or refuse any particular recommended course of action whilst optimising care for both mother and fetus to the best of his or her ability. A doctor would not then be culpable if these endeavours were unsuccessful.
5.12 We conclude that it is inappropriate, and unlikely to be helpful or necessary, to invoke judicial intervention to overrule an informed and competent woman's refusal of a proposed medical treatment, even though her refusal might place her life and that of her fetus at risk. [3]
More recently, in 1999 the British Medical Association published guidelines which considered the patient's right to refuse potentially life-saving treatment:
9.2 There is a legal presumption that adults have the competence to make decisions unless the contrary is proven.
The fact that an individual has made a decision which appears to others to be irrational or unjustified should not be taken as evidence that the individual lacks the mental capacity to make that decision. ......
9.4 Legally, to provide treatment for a competent adult without his or her consent, or in the face of a valid refusal, would constitute battery or assault and could result in legal action being taken against the doctor. This also applies where the patient is a pregnant woman even if her refusal would put the life of the fetus at risk as well as her own.
A competent adult’s right to refuse treatment was reaffirmed in the 1998 case of St George’s Healthcare National Health Service Trust v S in which the Court held that competent adults have the absolute right to refuse medical treatment (in that case a Caesarean section) even if they may die as a result of that refusal. [4]
[1] See also:
Trusts face damages after forcing women to have caesareans
Clare Dyer, legal correspondent, BMJ 1998;316:1477 ( 16 May )
Court-Ordered Caesareans in the UK, by Sheila Kitzinger, Birth, September 1998 Vol. 25.3
Forced Caesareans - discussions on the Association of Radical Midwives website
[2] St George’s Healthcare National Health Service Trust v S (No 2)
R v Louize Collins & Ors, Ex Parte S (No 2) [1998] 3 WLR 936
See The Times Law Report August 3 1998 Court of Appeal
[3] Royal College of Obstetricians and Gynaecologists - Ethical Guidelines (1994)
[4] Withholding and Withdrawing Life-prolonging Medical Treatment - Guidance for Decision-making , Editor: British Medical Association, June 1999, ISBN 0727914561
This page updated 16 October 2000
If you have any suggestions for additions to this page, please contact angela@horns.freeserve.co.uk
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