This article appears in the May 2000 edition of the Catholic Medical QuarterlyReturn to May 2000 CMQ
Consent for Caesarean Section:
2 - autonomy, capacity, best interests, reasonable force
and procedural guidelines
Matthew Alexander Thorpe
THE CURRENT SITUATION
Although the legal concepts of autonomy and capacity have been defined authoritatively in House of Lords cases, I find the language of Lord Donaldson in the Court of Appeal more vividly instructive. In the case of Re T,1 he had this to say of autonomy:
An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered ..... This right of choice is not limited to decisions which others might regard as sensible. It exists not withstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.
Of capacity, in the same case, he said this:
The right to decide ones own fate presupposes a capacity to do so. Every adult is presumed to have that capacity, but it is a presumption which can be rebutted. This is not a question of the degree of intelligence or education of the adult concerned.
However a small minority of the population lack the necessary mental capacity due to mental illness or retarded development. This is a permanent or at least a long-term state. Others who would normally have that capacity may be deprived of it or have it reduced by reason of temporary factors such as unconsciousness or confusion or other effects of shock, severe fatigue, pain or drugs being used in their treatment. Doctors faced with a refusal of consent have to give very careful and detailed consideration to the patients capacity to decide at the time the decision was made. It may not be the simple case of the patient having no capacity because, for example, at that time he had hallucinations. It may be the more difficult case of a temporarily reduced capacity at the time the decision was made. What matters is that doctors should consider whether at that time he had a capacity which was commensurate with the gravity of the decision which he purported to make. The more serious the decision, the greater the capacity required. If the patient had the requisite capacity, they are bound by his decision. If not, they are free to treat him in what they believe to be his best interests.
To the list of factors temporarily reducing or depriving the patient of competence identified by Lord Donaldson in this passage, the decision of the Court of Appeal in Re MB2 has added panic induced by fear.
The patient detained under the Mental Health
may still retain capacity.
In coping with the professional challenge created by a seemingly irrational refusal of Caesarean section, resolution is likely to be found within the psychiatric and judicial measures of capacity. The temptation may be to conclude incapacity from extreme irrationality. But irrationality at its extreme can be no more than symptomatic of incapacity. The patient detained under the Mental Health Act may still retain capacity. The power to treat under s. 63 is limited to medical procedures connected with the mental condition.
Obviously a complication in childbirth does not fall within s. 63. A neat illustration of the exercise of autonomy by a Mental Health Act patient is the case of Re C,3 which I decided as a Family Division judge. The elderly Broadmoor patient, who refused amputation as a treatment for gangrene in the foot, could not be compelled under s. 63. In that case I adopted a three-stage test of capacity for which Doctor Eastman contended in his evidence:
Does the patient comprehend and retain treatment information?
Does the patient believe that information?
Does the patient weigh that information balancing risks and needs to arrive at a choice?
That test has subsequently been approved in the two Court of Appeal cases dealing with Caesarean section.
It is unnecessary to dwell on best interests in the context of cases involving Caesarean section. Obviously, if the patient lacks capacity, the obstetrician proceeds towards the goal of successful delivery in the exercise of his clinical judgment. However, if the consultant is faced with a clinical choice between two possible procedures, in making that choice he should have regard to the circumstances and the patients stated or presumed preference.
The extent to which the consultant may
use reasonable force
in treating the patient who lacks capacity, in what the
consultant believes to be her best interests,
has not been explored fully in the decided cases to date.
The extent to which the consultant may use reasonable force in treating the patient who lacks capacity, in what the consultant believes to be her best interests, has not been explored fully in the decided cases to date. Reasonable force may be used lawfully in the administration of medical treatment to a Mental Health Act patient under s. 63. At first instance in; Caesarean section case, Wall J left undecided the question as to whether, outside s. 63, the use of reasonable force would be lawful at common law. In Re MB,2 the Court of Appeal noted that in cases dealing with Caesarean section, the declaration by the court generally included a statement that the use of reasonable force would be lawful. The court then said this:
The extent of force or compulsion which may be necessary can only be judged in each individual case and by the health professionals. It may become for them a balance between continuing treatment which is forcibly opposed and deciding not to continue with it. This is a difficult issue which may have to be considered in greater depth on another occasion.
Sadly such a case seems all too likely to present itself.
Procedural Guidelines were given in Re MB2 and further expanded in St Georges Health Care NHS Trust v S.4 These later guidelines have been specifically approved by the President of the Family Division and the Official Solicitor and are intended to be of general application, that is to say in cases involving Caesarean section and when any other surgical or invasive treatment may be needed by a female or male patient. There are no less than ten guideline paragraphs.
Having traced the evolutionary development of case law over the course of the last 20 years, the obvious question arises: is the evolution complete? Of course it is possible that the recent decisions of the Court of Appeal will stand for years to come, subject to refinements such as what constitutes reasonable force. Another possibility is that the evolution will be carried further - and who knows in what direction? - by the elevation of the issue to the House of Lords. After all, the Court of Appeal has weighed in the scales personal liberty as against sanctity of life. Although personal liberty has been cherished and prized throughout our history, so too is the veneration for and preservation of human life. It would be hard to think of a balancing exercise more fit for our Supreme Court. I understand that the House of Lords did grant leave to St George's4 to appeal but that, perhaps for cost considerations, the leave was not taken further. However, in Re F,5 all three judges of the Court of Appeal stated their strong opinion that any extension of the law towards a recognition of the fetus right to life must be achieved by legislation. Further, the House of Lords has considered similar issues raised in criminal law by Attorney Generals Reference (No. 3 of 1994).6 Perhaps encouragingly, the House rejected the opinion of the Court of Appeal that the fetus was to be regarded as an integral part of the mother. Lord Mustill in his speech said:
Although personal liberty has been cherished
and prized throughout our history,
so too is the veneration and preservation of human life.
The mother and the fetus were two distinct organisms living symbiotically, not a single organism with two aspects. The mothers leg was part of the mother; the fetus was not ...... I would, therefore, reject the reasoning which assumes that since (in the eyes of English law) the fetus does not have the attributes which make it a person it must be an adjunct of the mother. Eschewing all religious and political debate I would say that the fetus is neither. It is a unique organism. To apply to such an organism the principles of the law evolved in relation to autonomous beings is bound to mislead.
Later he said:
It is sufficient to say that it is established beyond doubt for the criminal law, as for the civil law ....... that the child en ventre sa m�re does not have a distinct human personality, whose extinguishment gives rise to any penalties or liabilities at common law.
If the law were to be reviewed in Parliament, the debate would inevitably be wide ranging and passionate. The arguments for and against change would be wider and more varied than I could possibly anticipate. Quite apart from moral and ethical considerations, there are great legal complexities. The donation of legal personality and legal rights to the fetus would have wide impact not only in criminal law but also in the law of tort. For instance, any choice made by the mother in relation to her body during pregnancy might affect the fetus and potentially attract tort liability at the suit of the fetus. There would be equal practical difficulties in determining the point of development at which the fetus acquired personality and rights. We have already touched on the complications created by the Abortion Act 1967. The attraction of exit and detachment as the defining legal moment is obvious. That said, the resolution at which the Court of Appeal has emphatically arrived creates undoubted difficulty for the professionals, including the psychiatric social worker, the consultant psychiatrist, the obstetrician and the first-instance judge. The difficulty must be most acute for the consultant bearing the responsibility for the life of both the mother and the being on the verge of independent existence. But it is also hard for the first-instance judge to suppress his every instinct to avert tragedy. It may be easier for appellate judges to define the principles than for first-instance judges to apply them. It may also be easier for judges to apply the principles retrospectively. Some may perceive the judges as more confident in defining the principle of autonomy than in applying it to a mother and fetus for whom death is at the door.
......any choice made by the mother in
relation to her body
during pregnancy might affect the fetus and potentially
attract tort liability at the suit of the fetus.
The last century - and it is a shock to those who regard it as the pinnacle of British civilization that it will soon be necessary to refer to it as the century before last - emphasized the duties that beset human existence. Towards its close began the struggle for all sorts of rights. A century later much of that struggle seems victorious. But rights and duties are in necessary tension and counterbalance. In recognizing the right of the pregnant mother we should not thereby eliminate matching responsibilities and obligations, perhaps to the father, to her own parents, and through them to the life that she has created and which she carries for a relatively brief term.
In recognizing the rights of the pregnant
we should not ........ eliminate matching responsibilities
and obligations, perhaps to the father, to her own parents,
and through them to the life that she has created
and which she carries for a relatively brief term.
Should this important but narrow area of law ever be debated in Parliament, I would only hope that the debate would be preceded by thorough research and consultation. First, what is the scale of the problem and what has been the outcome, both in the short term and the long term, for cases in which delivery by Caesarean section has been carried out without the mothers consent? Equally, there is an obvious need for comparative legal research. In 1978, the President in his judgment in Paton v British Pregnancy Advisory Service Trustees7 understood that the law of England was in harmony with the law of all other common law jurisdictions. Ten years later the first-instance judge in C v S8 said:
The authorities, it seems to me, show that a child, after it has been born, and only then, in certain circumstances, based on he or she having a legal right, may be a party to an action brought with regard to such matters as the right to take it, on a will or intestacy, or for damages for injuries suffered before birth. In other words the claim crystallizes upon the birth, at which date, but not before, the child attains the status of a legal persona, and thereupon can then exercise the legal right. This also appears to be the law in a number of commonwealth countries.
However by 1993, the President in deciding the case of Re S9 was influenced by contrary United States authority. A much fuller review of the trend in North America is to be found in the judgment of the Court of Appeal in St George s Health Care NHS Trust.4 The court referred to two United States decisions where treatment was imposed on an unwilling mother. In one the ratio was the unborn childs right to live. In the other it was the state s compelling interest in preserving the life of the fetus. Two powerful contrary decisions are noted. In the first, McFall v Shimp,10 the judge in a case involving a bone marrow transplant, said:
For our law to compel the defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual.....
But undoubtedly the most authoritative judicial consideration of the rights of the fetus was expressed in the decision of the Supreme Court of Canada given on 31 October 1997 in the case of Winnipeg Child and Family Services v G.11 A mother had given birth to two children permanently disabled as a consequence of her addiction to glue sniffing. When she was 5 months pregnant with her third child, an order was obtained for her detention for treatment in order to protect the unborn child. The Court of Appeal set aside the order. The Supreme Court confirmed the Court of Appeal by a 7-2 majority. In giving the judgment of the majority, McCloughlin J said:
The common law does not clothe the courts with power to order the detention of a pregnant woman for the purpose of preventing her from harming her unborn child. Nor, given the magnitude of the changes and their potential ramifications, would it be appropriate for the courts to extend their power to make such an order.
In expressing the position of the minority, Major J said:
Where the harm is so great and the temporary remedy so slight, the law is compelled to act ..... Someone must speak for those who cannot speak for themselves.
These comparative researches lead me to the conclusion that the evolutionary process which I have attempted to trace is not complete. Further, there is at least a distinct possibility that social pressures and changes will require further development of this most difficult legal territory, if not by case law, then by legislation.
In re T (Adult: Refusal of Medical Treatment)  Fam 9.
In re MB (An Adult: Medical Treatment)  2FCR 541.
ln t C (Adult: Refusal of Treatment)  1 WLR 290.
St George s Health Care NHS Trust v S  Fam 26.
In re F (in utero)  Fam 122.
Attorney-General's Reference (No. 3 of 1994)  AC 245.
Paton v British Pregnancy Advisory Service Trustees  QB 276.
C v S  l QB 135.
In re S (Adult: Refusal of Treatment)  Ham 123.
McFall v Shimp (1978) 127 Pitts. LJ. 14.
Winnipeg Child and Family Services (North west Area) v G (1997) 3 BHRC 611.
This is the second paper presented to the Royal College of Obstetricians and Gynaecologists and edited by Elizabeth-Anne Gumbel, QC. Reprinted by permission from Clinical Risk, 5, pp 209-212.
The Rt. Hon. Lord Justice Thorpe is Lord Justice of Appeal, formerly Judge of the High Court Family Division,