Freedom tiptoes out the door

When judges order women to have forced Caesareans at the behest of doctors, the preoccupation of the judiciary with human rights is called into question, says Barbara Hewson
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The Independent Online
In 1972, Lord Reid, a top Law Lord, made a classic statement of constitutional principle: "English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries, not only by coups d'etat but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions."

Lord Reid was explaining why a court could not force a man to have a blood test in a paternity dispute. But today's courts seem to adopt a different approach. This is what a High Court judge said when ordering a forced Caesarean in 1996: "I am afraid the Judge has to do what some may call rough justice. I do not think there is a possibility of giving attention to the legal niceties. I think the information [sic] of judges is to act on the advice of doctors of proper standing."

How can this be happening when many judges in the Court of Appeal and the House of Lords publicise their interest in seeing the European Convention on Human Rights incorporated into our law? Those calling for this innovation have included the present Lord Chief Justice, Lord Bingham; the former Lord Chief Justice, Lord Taylor; Lord Browne-Wilkinson of the House of Lords; to name but a few. Is the present preoccupation with human rights more rhetorical than real?

Just how effective are our senior courts at upholding human rights? The answer is debatable. Think of all the grotesque miscarriages of criminal justice in recent years, when judges imprisoned innocent people and the Court of Appeal turned a blind eye. On the civil side, think of the notorious order gagging Sarah Keays, and the recent decisions by the Master of the Rolls to "cap" the damages awarded by British juries against police when they falsely imprison and assault people.

Last year, the Court of Appeal gave a ruling in which it assumed that it had power to order a family living abroad to come to Britain for a forced liver transplant on a little boy. The court decided to respect the mother's decision not to subject her little boy to painful surgery. But it reserved the right to force surgery on somebody else next time.

Now pregnant women are on the agenda of the Court of Appeal. In a bizarre case, that court sat in secret session from 11pm on Wednesday 19 February until 1.10am the following day to approve a decision by Mr Justice Hollis to force a non-consenting woman, whose foetus was in the breech position, to undergo a Caesarean that she did not want. She was alleged to have a "needle phobia". She was not in labour and her life was not in danger. The court was ready, in the early hours when no one was about, to violate this woman's fundamental human rights by ordering forced surgery on her. It also approved a gagging order, prohibiting identification of the woman, the doctors, the hospital, the NHS Trust or the health authority involved.

Ominously, the court has apparently said it will provide "guidance for future cases". What this means, I fear, is that it will provide a formula whereby doctors and hospitals, and their lawyers, can "fit women up". In future, pregnant women who reject their doctors' advice could be tried by judges, as witches were centuries ago. They could be convicted of "incompetency", and subjected to house arrest, torture or inhuman and degrading treatment in state hospitals. Forced epidurals, forced episiotomies, forced pubic shaving, forced forceps deliveries, forced general anaesthetic, forced Caesareans, forced medication, forced in utero foetal surgery, forced detention, forced vaginal examinations, forced Aids testing, forced foetal screening, forced abortions (why not?).

Violence can be ordered by courts "where necessary" - all without the authority of Parliament. Readers can no doubt imagine the kinds of prolonged pressure, bullying, harassment and intimidation that will now be used by professionals supposed to be caring for women. Think what goes on in police stations. Are the medical and midwifery professions now the new "pregnancy police"? There is literally no end to the assaults, brutality, indignities, and sheer prejudice that could flourish unchecked. But the Court of Appeal, it seems, is adamant. It ultimately has the power to decide what adults can do with their own bodies. Pregnant women are seemingly a new class of "incompetents", like coma victims, small children and the severely mentally disabled, over whom the state can claim total dominion.

This particular woman's case, like earlier ones, was dealt with in a rushed "emergency" hearing. This time, the hearing was followed by a scramble to the Court of Appeal, which gave way in exactly the same manner as the lower court.

The Official Solicitor, who was involved in an early stage in this case, is a public official who normally acts for children. He also acts for mental patients and coma victims. In a previous case, he presented the argument in favour of forced intervention. His officials have liaised with hospitals in other cases. Where he is involved in applications for court orders against women, the court has generally ordered intervention.

Such is the lack of judicial attention to fundamental human rights these days that it appears that even the Court of Appeal no longer cares that women's basic civil liberties are being eroded by stealth, and without Parliament's authority. Rough justice is the order of the day.

The writer is a barrister who specialises in the fields of sex discrimination and maternity rights