Leading article: Rights and their limits

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The Independent Online
"THE ONLY purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant." It is good to hear the words of On Liberty echoed in the ruling of an Appeal Court judge, 139 years after they were written by John Stuart Mill.

"Even when his or her own life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it," Lord Justice Judge declared this week. As a starting point, such a forceful statement of libertarian principle should be applauded loudly, although it hardly begins to deal with the complexities of the case of Ms S, the woman who was operated on against her will in order to deliver her baby.

Ms S was eight months pregnant when she developed pre-eclampsia, a condition of high blood pressure which could have threatened her health and that of her unborn baby. Doctors advised an early delivery, but she refused medical intervention and insisted that nature should take its course.

Her case was extreme, but there are many women whose views on giving birth are different from those of the majority and, more to the point, different from those of doctors. Last week's ruling should serve as a sharp warning to the medical profession in particular to respect the wishes of women, however strongly individual doctors may disagree with them. Many of the decisions concerning childbirth involve balancing risks. Caesarean operations, for example, pose risks to a mother's health. The law should be clear that, while doctors must advise, the right to make decisions lies with the woman herself.

Much of the interest in the case, and most of the force of the judges' verdict, centred on what happened next. A social worker and two doctors found Ms S's attitude so unreasonable that they detained her in hospital against her will, claiming powers under the Mental Health Act. Ms S had said she did not want the baby, that she did not care if she died, and that if the baby died too it would serve the father right. But, as the Appeal Court judges found, it was wrong to detain her "merely because her thinking process was unusual, even apparently bizarre and irrational, and contrary to the view of the overwhelming majority of the community at large". Having detained her unlawfully, the hospital then applied to a judge for an order to carry out an emergency Caesarean. Ms S was not told of the application, still less given the chance of legal representation or to put her case. As the Appeal Court found, the way the order was obtained was "extraordinary and unfortunate". This is a judicial understatement: Ms S found herself in a medical and legal world designed by Kafka and was treated in an inhuman and degrading manner.

But there is something in the Appeal Court judgment that should make us feel uneasy. To return to Mill, power can be exercised over someone against their will only "to prevent harm to others", and there was another person in this case - the baby. Lord Justice Judge dismissed her rights in these words: "Although human, and protected by the law in a number of different ways, an unborn child is not a separate person from its mother. Its need for medical assistance does not prevail over her rights."

The mother's rights would seem to include that to decide whether a foetus capable of independent life should live or die. "She is entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depended on it." That, surely, is too absolute. If it could have been shown that Ms S was pursuing a course of action which was certain to cause the death of her child, then there might have been a case for intervention. Doctors cannot stand by and watch people - or near-term foetuses - die. The trouble in this case was that the hospital made assumptions about what was in the interests of the child without reference to the wishes of the mother and with no attempt to produce and test evidence for those assumptions. The case for intervention would have to be overwhelming and clear-cut, but we are not convinced the court was right to rule it out altogether.

We cannot help but agree with one of the defendants that it was better that the case was heard in the Appeal Court than the coroner's court. But that must not obscure the point that a woman's right to decide what happens to her body is paramount.

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