Editorial Committee of the Cambridge Law Journal

Caesarean Sections, Phobias and Foetal RightsAuthor(s): Jonathan HerringSource: The Cambridge Law Journal, Vol. 56, No. 3 (Nov., 1997), pp. 509-511Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4508374 .

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C.L.J. Case and Comment 509

and Vacco, campaigners for PAS may now focus their efforts on state

legislatures.

John Keown

C.L.J. Case and Comment 509

and Vacco, campaigners for PAS may now focus their efforts on state

legislatures.

John Keown

caesarean sections, phobias and foetal rights

Forcing women to have Caesarean sections against their will has been

much discussed in the media in recent months. The Court of Appeal has now considered the issue in detail, and Butler-Sloss L.J has

handed down a judgment which is likely to govern the way such cases

are dealt with in the future (Re MB [1997] 8 Med. L.R. 217). When a court is asked to authorise the performance ofa Caesarean

section against the mother's wishes, it must first determine whether

the woman is competent to consent to the Caesarean section. In line

with previous authority (Re C (Refusal of Medical Treatment) [1994] 1 F.L.R. 31; Re T (an Adult) (Consent to Medical Treatment) [1993] Fam. 95) the Court of Appeal in Re MB confirmed that every adult is

presumed to have the capacity to consent or refuse to consent

to medical treatment. This presumption can be rebutted if "some

impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent or to refuse treatment"

and that person is "unable to comprehend and retain the information

which is material to the decision, especially as to the likely consequences of having or not having the treatment in question" or "the patient is

unable to use the information and weigh it in the balance as part of

the process of arriving at the decision". However, the mere fact that

the decision an individual makes is irrational or defying logic does not

mean that a patient is incompetent. In a novel dictum Butler-

Sloss L.J. added that a patient may be incompetent if her decision is

"based on a misperception of reality (e.g. the blood is poisoned because it is red)".

Butler-Sloss L.J. went on to apply these principles to the case in

question. Ms MB, aged 23, was 40 weeks pregnant when the doctors

recommended that delivery be by Caesarean section. She was happy to consent to the Caesarean but suffered from "needle phobia" and

was unwilling to consent to the administration of the anaesthetic by needles. She was also too frightened to consent to administration of

the anaesthetic by mask. The court felt that her phobia of needles and

fear of masks "dominated her thinking and made her quite unable to

consider anything else" and so she was "incapable of making a decision at all". The court argued, in effect, that this was a decision which was not the result of reasoned thought, but rather an instinctive reaction. This is hard to accept as her refusal to consent to injections or use of

caesarean sections, phobias and foetal rights

Forcing women to have Caesarean sections against their will has been

much discussed in the media in recent months. The Court of Appeal has now considered the issue in detail, and Butler-Sloss L.J has

handed down a judgment which is likely to govern the way such cases

are dealt with in the future (Re MB [1997] 8 Med. L.R. 217). When a court is asked to authorise the performance ofa Caesarean

section against the mother's wishes, it must first determine whether

the woman is competent to consent to the Caesarean section. In line

with previous authority (Re C (Refusal of Medical Treatment) [1994] 1 F.L.R. 31; Re T (an Adult) (Consent to Medical Treatment) [1993] Fam. 95) the Court of Appeal in Re MB confirmed that every adult is

presumed to have the capacity to consent or refuse to consent

to medical treatment. This presumption can be rebutted if "some

impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent or to refuse treatment"

and that person is "unable to comprehend and retain the information

which is material to the decision, especially as to the likely consequences of having or not having the treatment in question" or "the patient is

unable to use the information and weigh it in the balance as part of

the process of arriving at the decision". However, the mere fact that

the decision an individual makes is irrational or defying logic does not

mean that a patient is incompetent. In a novel dictum Butler-

Sloss L.J. added that a patient may be incompetent if her decision is

"based on a misperception of reality (e.g. the blood is poisoned because it is red)".

Butler-Sloss L.J. went on to apply these principles to the case in

question. Ms MB, aged 23, was 40 weeks pregnant when the doctors

recommended that delivery be by Caesarean section. She was happy to consent to the Caesarean but suffered from "needle phobia" and

was unwilling to consent to the administration of the anaesthetic by needles. She was also too frightened to consent to administration of

the anaesthetic by mask. The court felt that her phobia of needles and

fear of masks "dominated her thinking and made her quite unable to

consider anything else" and so she was "incapable of making a decision at all". The court argued, in effect, that this was a decision which was not the result of reasoned thought, but rather an instinctive reaction. This is hard to accept as her refusal to consent to injections or use of

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510 The Cambridge Law Journal [1997]

the mask was not the result of a one-off panic but was a view she had

held for most of the pregnancy. The court perhaps should have focused on the fact that she wanted

the Caesarean section to take place; indeed on several occasions she

specifically requested it. The protection of a patient's autonomy is

about ensuring that a competent patient can choose what happens to

her body and her life and not have these decisions made for her. Here

MB wanted a Caesarean section, but did not want the injection. As

these two wishes are incompatible, would it not be upholding her right to choose to authorise the Caesarean, that being to her, presumably, the more important choice?

If the court finds the patient to be incompetent, as it did in this

case, then it should decide whether the operation is in the patient's best interests, considering her circumstances and background. In Re

MB it was relatively easy to determine the patient's best interests as

MB wanted the Caesarean section to take place and the medical

evidence suggested that it would cause her psychological harm if the

child were to die or be born deformed; whereas the expert evidence

stated that if she were injected against her will she would suffer no

long-term harm. Hence the court authorised the Caesarean and

ordered that, if necessary, reasonable force could be used. In the event, after the hearing MB consented to the administration ofthe anaesthesia

and a healthy child was delivered.

In other cases it may be harder to decide whether a Caesarean is in

the patient's best interests. Butler-Sloss L.J. specifically rejected the

argument that the court should take into account the interests of

the unborn child and balance them against the mother's interests. The

authorities quoted by the Court of Appeal to support this position demonstrate that the foetus cannot be placed under the wardship

jurisdiction (Re F (In Utero) [1988] Fam. 122), nor can. it be a party to legal proceedings (Paton v. British Pregnancy Advisory Services

[1979] Q.B. 276), nor does it have "legal rights" (C v. S [1988] Q.B. 135 at 140); but these judgments do not mean that the foetus has no

interests that can be protected. It is unclear on what Butler-Sloss L.J.'s

argument was based. If she was saying that the foetus has no interests

which can be protected by the law, this would be hard to reconcile

with the restrictions on abortion in the Abortion Act 1967 and the

speech of Lord Mustill in a recent House of Lords decision which

rejects the view that the foetus is in law part of the mother (Attorney- GeneraVs Reference (No. 3 of 1994) [1997] 3 W.L.R. 421). However, it may be she was saying that the foetus does have interests that are

protected by the law but they are never sufficiently weighty to justify the carrying out of a Caesarean on an incompetent mother; but if this

is the case, she offers no explanation of why this is so.

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Case and Comment

The Court of Appeal could have dealt with this question in a much more straightforward way by simply stating that, when considering what is in the interests of an incompetent patient, the law considers only what is in the patient's interests and never considers the interests of others (Re Y (Mental Patient: Bone Marrow Donation) [1997] 2 W.L.R. 556). Although this is an impoverished notion of best interests (is it never in your best interests to act altruistically?), it represents the present law.

Had MB been competent to consent and then refused, the Caesarean could not have been carried out, even if this would have led to the foetus's or the mother's death. It is now well established that a competent adult can effectively refuse treatment even if this leads to her death (Re T (An Adult) (Consent to Medical Treatment) [1993] Fam. 95). Butler- Sloss L.J. in Re MB argued that the interests of the foetus were not capable of overriding the competent patient's refusal. This was contrary to the decision of Sir Stephen Brown P. in Re S (Adult: Surgical Treatment) [1992] 4 All E.R. 671 which suggested that the foetus's interests could override the mother's refusal. Re S had been based on a dictum of Lord Donaldson M.R. in Re T (ibid., at 102) and had been approved by Thorpe J. in Secretary of State for the Home Department v. Robb (which was not referred to by the Court of Appeal). After Re MB these authorities appear no longer to represent the law on this issue.

Whether a competent mother should be allowed to refuse a Caesarian even if her refusal will lead to the death of her child and herself depends in part on the view taken of the status of the foetus and the rights of the mother. The link with disputes over abortion is clear, but there are important distinctions. First, by the time a Caesarean may be contemplated, the child will be viable and so, according to one view, have acquired the status of personhood. Secondly, the Caesarean is a less intrusive, or at least shorter, invasion into the life and body of the woman than obliging her to go through with the entire pregnancy. On the other hand, where a Caesarian is authorised a mother is forced to undergo surgical intervention against her will; she thus suffers a greater invasion of liberty than that suffered by a woman who is denied access to an abortion.

On the facts of this case, had the mother been judged competent then the court would not have authorised the Caesarean section and the foetus, and even the mother, might have died, despite the mother's strong wishes to have the Caesarean section and give birth-all to uphold the right of the mother not to receive the prick of a needle or use the mask against her wishes. Would that really have been a step towards promoting the mother's right to control what happens during her pregnancy?

JONATHAN HERRING

C.L.J. 511

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