Feature

Delivering a disturbing judgement

Two recent court cases have raised fundamental questions about the rights of women in labour, reports Julie Stone

Despite the controversy generated by the Re S decision four years ago and forceful guidelines produced by the Royal College of Obstetrics and Gynaecology condemning the practice, a judge recently granted two separate orders permitting NHS trusts to perform caesarean sections on two competent women who refused to consent to the procedure.^{1 2}

The first of the two cases involved Mrs C. Her consultant contacted a solicitor because he felt that the patient’s uterus was rupturing and that unless he could deliver the baby by caesarean within an hour both child and mother would die. In a hearing lasting no more than two minutes, the judge heard that Mrs C’s objection was that she had previously been delivered by caesarean and would rather die than suffer the pain after another caesarean. The only information the judge had as to the patient’s competence came from her obstetrician whose view was that she seemed to him fully competent.

The judge accepted that to perform surgery without consent would be an assault and that a mentally competent person has an absolute right to refuse treatment for any reason, however irrational, even if it would result in death. In law, a patient is competent if she is able to comprehend and retain treatment information, believe such information, and weigh it up to make a choice.

Applying that test, the judge concluded that Mrs C was incompetent because she was not capable of weighing up the information she was given. Describing her as being ‘in the throes of labour, with all that is involved in terms of pain and emotional stress’ he decided that ‘a patient who could speak in terms which seemed to expect the inevitability of her own death was not a patient who was able properly to weigh up the considerations to make any valid decision about anything of even the most trivial kind, surely still less one which involved her own life’.

The second case involved Miss W, aged 32, who arrived at hospital in the last stage of the pregnancy, apparently having had no ante-natal care. Although fully dilated, she denied that she was pregnant. Miss W had a history of psychiatric treatment and had had three previous caesareans. Medical evidence was that unless the fetus was delivered by that evening it would suffocate within the patient with serious life-threatening consequences for Miss W. Additionally, there was a risk that her previous caesarean scars would re-open.

Although staff explained the seriousness of the situation, Miss W refused to consent to a forceps delivery or a caesarean. A psychiatrist who interviewed her was not sure whether she was competent, but certified that she was not suffering from any mental disorder.

Granting the hospital an order permitting it to perform a caesarean, the judge said that Miss W was incompetent, even though she was not suffering from a mental disorder. He emphasised that his judicial concern was based on the patient’s interests and not those of her fetus, although he did deliberately note that the fetus was capable of normal life if delivered.

The implications of these two judgements are profoundly worrying. The notorious Re S case was justified not only in relation to the interests of the mother, but also in the interests of her unborn child. This flew in the face of previous judicial authorities, which make it clear that the liberty of mothers should not be curtailed in the interest of the child they are carrying. Here, the orders were justified on the basis that a caesarean was necessary in the best interests of the patient.

Obstetricians and midwives face an appalling predicament when women refuse a caesarean in the end stages of labour. Parliament must take action soon, but until it does judges have to make a pragmatic and swift decision. But the consequences of deeming women incompetent to make decisions because they refuse to consent to caesareans are simply unacceptable.

If judges can decide contrary to medical opinion that patients lack mental capacity, will the competence of pregnant women be challenged in other situations? Will doctors seek court orders if women refuse to submit to fetal surgery? Will women in labour have their birth plans disregarded because they are in great pain? Moreover, the judge admitted that in such cases it might be necessary to use force in order to perform non-consensual treatment. The prospect of women being shackled to delivery beds is not fanciful overreaction, but a distinct possibility as result of these two cases.

To place the decisions of pregnant women in a separate category from the decisions of other adult patients is indefensible, and entirely at odds with the views of the Royal College, whose failure to comment on these two recent cases is lamentable. Because the Royal College has not contradicted its earlier position paper, doctors must accept that forced caesareans are unacceptable and should not take these two recent cases as evidence of good practice.