Ultimately the matter is one either for the legislature or the courts, but the circumstances of emergency in which the issues arise in any particular case make a fully informed and reasoned decision impossible. The nature of the case makes it impossible for the woman to be present or represented and there is no time for the court to hear detailed argument. In the leading case of Re S (1992) 4 All ER 671 the President of the Family Division granted a declaration permitting the operation only 48 minutes after the court first heard of the matter. As Sir Stephen Brown said, the situation was desperate and doctors were concerned with "minutes rather than hours". The judgment occupies less than a page in the law reports.
A second difficulty is that once a declaration is granted and the operation is carried out, that is the end of the matter so far as the court is concerned. It cannot grant an interim declaration and reconsider the matter at leisure.
The issues are too important for the general principles governing these cases to be dealt with in this way. The Court of Appeal should be asked to consider the matter on an appeal brought either by one of the patients or the Official Solicitor. I suspect that the result will accord with the decisions in the two recent cases. If a choice has to be made between operating on an unwilling patient or the child dying, the decision must be made in favour of the child. But let the matter receive the consideration it deserves.
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