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. Mental competence has been carefully defined and a woman cannot be considered mentally incompetent just because she disagrees with medical advice or makes choices which others find bizarre - see the RCOG guidelines excerpts below for more.
Here are some excerpts from the RCOG ethical guidelines. The full document makes interesting reading and discusses relevant case law including those mentioned above.
From Law and ethics in relation to court authorised obstetric intervention Guideline 1 - September 2006
3 The legal position
The competent adult has the right to refuse treatment and surgery without consent is an assault in English law. 1,2 This has recently been confirmed:‘Where a competent patient makes it clear that he does not wish to receive treatment which is, objectively, in his best interests, it is unlawful for doctors to administer treatment. Personal autonomy or the right to self determination prevails’. 7
The presumption is ‘that every adult has the capacity to decide whether to consent to, or refuse, proposed medical intervention, unless it is shown that they cannot understand information presented in a clear way.’
‘Capacity should not be confused with a health professional’s assessment of the reasonableness of the patient’s decision’. As long as she understands what it entails, the woman is entitled to make a decision based on her own religious belief or value system even if it seems to others to be irrational.’
‘If an adult with capacity makes a voluntary and appropriately informed decision to refuse treatment this decision must be respected even where this may result in the death of the patient and/or the death of an unborn child, whatever the stage of the pregnancy’.
...in 2002 in the case of Ms B v an NHS Hospital Trust (Appendix 1, Case 6) and the Court confirmed that ‘if mental capacity is not in issue and the patient, having been given the relevant information and offered the available options, chooses to refuse the treatment, that decision has to be respected by the doctors. 12 Considerations that the best interests of the patient would indicate that the decision should be to consent to treatment are irrelevant’.
..the Law Commission, in its report on injuries to unborn children, 21 explicitly stated that a woman should not be liable for ‘rash conduct during pregnancy’ which causes harm to the unborn child. Rather, the intent of Parliament was to leave it up to the individual mother to decide how to act in the ‘best interests’ of her unborn child.
In caring for the pregnant woman, an obstetrician must respect the woman’s autonomy and her legal right to refuse any recommended course of action. ....
6 What should the obstetrician do?
The first question is whether the patient has capacity to consent to, or to refuse, treatment and is refusing recommended treatment. If the patient has capacity there is no action to be taken save for the making of meticulous notes.
- A doctor must respect the competent pregnant woman’s right to choose or refuse any particular recommended course of action while 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.
- The best defences against any retrospective claim that the woman did not fully understand the risks are good communication, interprofessional teamworking and, most of all, meticulous record keeping.
- It is inappropriate to invoke judicial intervention to overrule an informed and competent woman’s refusal of a proposed medical treatment, even if it seems to others to be irrational.
- If an adult with capacity makes a voluntary and appropriately informed decision to refuse treatment this decision must be respected, even where this may result in the death of the patient and/or the death of an unborn child, whatever the stage of the pregnancy.
[END QUOTES FROM RCOG GUIDELINES]
Note: this is old text and much of it is covered in the full RCOG guideline mentioned above.
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  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, )
 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
 St George’s Healthcare National Health Service Trust v S (No 2)
R v Louize Collins & Ors, Ex Parte S (No 2)  3 WLR 936
See The Times Law Report August 3 1998 Court of Appeal
 Royal College of Obstetricians and Gynaecologists - Law and ethics in relation to court authorised obstetric intervention Guideline 1 - September 2006
 Withholding and Withdrawing Life-prolonging Medical Treatment - Guidance for Decision-making , Editor: British Medical Association, June 1999, ISBN 0727914561
This page updated 10 February 2010
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