Law Report: No jurisdiction to force caesarian on mother

LAW REPORT v 8 April 1997

Re MB; Court of Appeal (Lady Justice Butler-Sloss, Lord Justice Saville, Lord Justice Ward) 26 March 1997.

Where a competent woman, with the capacity to decide, refused medical treatment even though that refusal might result in death or serious handicap to the child she bore, or her own death, the courts had no jurisdiction to declare such treatment lawful.

The Court of Appeal gave reasons for dismissing an appeal by MB against the decision of Hollis J to grant a declaration that it would be lawful for her doctors, if they thought it necessary, to carry out a caesarian section upon her, including the insertion of needles for the purposes of anaesthesia, because she was incapable of consenting to or refusing treatment.

The appellant, who was about 40 weeks pregnant, was examined by a consultant obstetrician who found that the foetus was in the breech position. She was told that a vaginal delivery carried about a 50 per cent risk to the child of death or brain damage. She agreed to have a caesarian section but later refused to undergo anaesthesia by way of injection, since she was frightened of needles. The hospital sought and obtained the court order after the appellant had gone into labour, had again agreed to a caesarian section, but had again refused to consent to anaesthesia. Her appeal was heard and dismissed the same night. The following morning she consented to the operation and to anaesthesia, and a healthy boy was delivered.

Robert Francis QC for the appellant; John Grace QC for the hospital trust; Michael Hinchcliffe, solicitor, as amicus curiae.

Lady Justice Butler-Sloss said that the basic principles underpinning the proper approach to the issues raised were that in general it was a criminal and tortious assault to perform physically invasive medical treatment without the patient's consent; that a mentally competent patient had an absolute right to refuse to consent to medical treatment, even where that decision might lead to his own death; and that essential emergency medical treatment could be undertaken even if no consent had been given through lack of capacity.

Those principles should be considered in an urgent situation such as a caesarian section case, and the court should, in approaching the crucial question of competence, bear in mind the following factors.

There was a rebuttable presumption that every person had the capacity to consent to or refuse medical treatment. A competent woman with that capacity might, for rational or irrational reasons or no reason at all, refuse to have medical intervention even though the death or serious handicap of the child she carried or her own death might result. In that event the courts had no jurisdiction to declare medical intervention lawful, and the question of the woman's best interests did not arise.

Irrationality in the present context connoted a decision so outrageous in its defiance of logic or accepted moral standards that no sensible person, applying his mind to the question, could have arrived at it. A person lacked capacity if some impairment or disturbance of mental functioning rendered them unable to decide whether or not to consent to treatment.

Temporary factors, e.g. confusion, shock, fatigue, pain or drugs, might completely erode capacity, as might panic induced by fear.

Applying those principles, the appellant had been temporarily incompetent because of her fear of needles, and the doctors were free to administer the anaesthetic in emergency, if that were in her best interests. Best interests were not limited to medical best interests, and it was clear that the appellant was more likely to suffer significant long-term damage if the baby died or was born handicapped than from the administration of the anaesthetic.

For the time being at least doctors should seek a ruling from the High Court on the issue of competence, and should try to identify a potential problem early and bring it before the court before it became an emergency. The hearing should be inter partes and the mother represented. The Official Solicitor should be notified, and act as amicus curiae where not acting as guardian ad litem. There should be evidence as to competence and, if possible, background information about the patient.

Kate O'Hanlon, Barrister

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