United Kingdom Journals

Caesarean Sections, Competence and the Illusion of Autonomy

Alasdair R Maclean BSc, MBBS, DA, FRCA, PGDipLaw.*

M.Jur candidate at the University of Durham.

<A.R.Maclean@durham.ac.uk>

* I would like to thank Professor H. Teff for his helpful comments on an earlier draft of this paper.

Copyright © 1999 Alasdair Maclean.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The recent case of St George's Healthcare NHS Trust v S; R v Collins and others, ex parte S [1998] 3 All ER 673, [1998] Fam Law 526, CA , was the latest in a short series of cases that concerned the refusal of treatment by pregnant women. R v Collins is important because the Court of Appeal's confirmation of the right of a competent pregnant woman to refuse treatment - regardless of her viable foetus - was, for the first time, part of the ratio. However, despite overtly supporting patient autonomy the court has left the concept of capacity to consent so flexible as to allow paternalism to creep in through the back door. By accepting Lord Donaldson MR's risk-related standard and by failing to consider the subjective nature of the test laid down in Re C the Court of Appeal has left pregnant women vulnerable to being deemed incompetent should they disagree with the doctor's choice of treatment. Another deficiency was the Court of Appeal's omission of any real discussion of public policy thus leaving room for manoeuvre should a court in the future decide to introduce those issues into the equation.

Contents

Introduction

The Facts

The Judgment

Discussion

Conclusion

Bibliography

Introduction

The right of a competent adult to refuse consent to medical treatment is well recognised in English law (S v McC; W v W [1972] AC 24; Re T (adult: refusal of medical treatment) [1992] 4 All ER 649, CA.). It is founded on the right to autonomy and the principle of (respect for) autonomy. In most cases only the patient him/herself is directly affected. However, when a pregnant woman rejects medical therapy her unique physical relationship with her unborn child means that this `third party' is also affected. This raises the spectre of JS Mill's `Harm Theory' that the only justification for overriding an individual's autonomous decision is where a third party will be `harmed'. Although not generally recognised as a legal person, the foetus, especially at such a late stage of pregnancy - when it is `viable' - deserves consideration. This conflict creates an ethical and legal minefield and, as noted by Thorpe LJ:

`No one can have failed to notice that current ethical debates between obstetricians, who contend for the life of the unborn child, and feminists, who contend for the rights of a pregnant woman to determine treatment, are passionate and seemingly irreconcilable' (see Thorpe 1997). R v Collins highlights this conflict.

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The Facts

A 28 year old veterinary nurse (S), 36 weeks pregnant and without previous antenatal care was diagnosed as suffering pre-eclampsia severe enough to require hospitalisation and induction of labour. She understood the potentially life-threatening risks to her and her baby but rejected the advice believing that pregnancy, as a natural process, should proceed - regardless of the outcome - without medical intervention. The response of the health professionals was to compulsorily detain her for assessment under the Mental Health Act 1983 s 2. This was justified by a previous diagnosis of moderate depression but the real concern was for the fetus and S's physical health as was highlighted by the comment of the approved social worker:

`I do not think that a psychiatric ward was the best place for this patient, but I felt the gravity of the situation was such that she needed some sort of safety containment, assessment and immediate treatment when necessary'.

She was transferred to St George's Hospital and an ex parte application was made to Hogg J who granted a declaration that dispensed with the need for consent. A caesarean section was performed and S was safely delivered of a baby girl. During her detention S did not receive treatment for any mental disorder.

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The Judgment

The Court of Appeal rejected the submission that S lacked the capacity to consent and considered that the three principles relevant to its judgment were: autonomy; the status of the foetus and the application of the Mental Health Act 1983. In recognising the competent adult's right to autonomy and the lack of independent existence or legal recognition of the foetus as a person, the Court concluded:

`while pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatment. [An unborn child's] need for medical assistance does not prevail over her rights. 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 depends on it. Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant'. The infringement of the mother's autonomy could not, therefore, be justified by the `perceived needs of the foetus'.

The unlawful use of the Mental Health Act 1983 and other procedural improprieties in this case are not relevant to the thrust of this paper and will not be examined further.

Discussion

The conflicts established when a pregnant woman refuses a caesarean section involve: the woman's autonomy and inviolability of body; the foetus' right to life (as a non-autonomous being the foetus cannot have an interest in its autonomy and any right to potential autonomy is dependent on its right to life) and society's interests. These include: 1) the preservation of life; 2) the protection of dependent third parties; 3) the prevention of suicide; and 4) the preservation of the ethical integrity of the medical profession (see Rhoden 1986). A fifth possible concern is society's interest in the well-being of its members (see Brock 1991).

When a person chooses a course of action which risks their health, and possibly their life, it raises a moral dilemma between their autonomy and society's interest in preserving their well-being and life. The Court of Appeal, in R v Collins, was correct (see Airedale NHS Trust v Bland [1993] 1 All ER 821 e.g. per Lord Keith at p 860) in re-stating the principle that; `Even when his or her own life depends on receiving medical treatment an adult of sound mind is entitled to refuse it. This reflects the autonomy of each individual and the right of self-determination'.

The principle of inviolability of the body is the rationale behind trespass to the person. In Collins v Wilcock [1984] 3 All ER 374, Goff LJ stated this as follows:

`The fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery.'

Likewise in medicine, every physical contact with a patient may be a battery but consent makes this contact lawful. The rules of consent have their basis in autonomy but this right is not absolute: self-defence, justifiable corporal punishment by a parent and lawful arrest may override the need for consent (see Mason and McCall Smith 1994). Neither is the right to consent to touching absolute and for policy reasons, causing actual bodily harm (e.g. by sado-masochistic practices) vitiates consent (R v Brown [1993] 2 All ER 75).

If policy arguments can be used to vitiate a freely given consent where harm is likely to occur - as in R v Brown - then public policy should at least be considered where refusal of consent may result in such harm. In Re T [1992] 3 WLR 782, Lord Donaldson MR considered the conflict between the individual's right of refusal and society's interest in preserving life. Although concluding that, `It is well established that in the ultimate the right of the individual is paramount' (at p. 796) he considered that, `The only possible qualification is a case in which the choice may lead to the death of a viable foetus... ...and, if and when it arises, the courts will be faced with a novel problem of considerable legal and ethical complexity' (at p. 786). In Re S (Adult: Surgical Treatment) [1993] Fam 123 a competent woman's refusal of a caesarean section on religious grounds was overruled in favour of protecting the foetus. Although Sir Stephen Brown P did not explain his reasoning behind the decision in Re S, he did refer to Re T which suggests that policy played a major role. In the other caesarean section cases policy has been side-stepped by using the flexibility of the principle of competence: Re MB (An Adult: Medical Treatment) [1997] 2 FCR 541 was criticised for, inter alia, failing to consider policy issues (see Stauch 1997).

The Court of Appeal in R v Collins was no different and failed to consider any of the relevant interests mentioned earlier. There is a distinction between the interests of the foetus and the public interest in preserving the life and well-being of the foetus. Although R v Collins overrules Re S - so far as the interests of the foetus cannot override the autonomy of the competent, pregnant women - the question of public interest in the foetus remains open. Space does not permit a full discussion but society must have an interest in the potential life and well-being of the foetus, both of which are risked by the woman's refusal to accept medical advice. It may be that the correct place to establish the balance of society's interests is in Parliament however, the issues do need to be discussed at some point.

An important aspect of the case is that the conflict between the foetus' rights and the mother's rights were considered as part of the ratio. Although it was discussed in Re MB, there the issue was obiter. The Court of Appeal in R v Collins stated that, `In the present case there was no conflict between the interests of the mother and the foetus; no one was faced with the awful dilemma of deciding on one form of treatment which risked one of their lives in order to save the other'. While the second part of that statement may be true, the first half is clearly wrong. As the foetus has no autonomy its only `interests' are to be born alive and in good health in order to maintain its maximal potential for autonomous life. The woman's choice, not to allow the method of delivery most beneficial to the foetus, regardless of whether or not it was beneficial to her also, must create a conflict of interests. However, after considering the relevant case law the Court of Appeal in R v Collins held that a pregnant woman has the right to refuse `an invasion of her body' even if the decision is `morally repugnant' and risks either her own life or that of her foetus.

It is established law that while the foetus has some protected rights it has no locus standi to assert these unless and until it is born alive (Paton v BPAS [1979] 1 QB 276). Thus the judgment was correct as far as it went. It did not consider, however, the situation if the foetus was born alive but damaged, or if it subsequently died, because the mother rejected medical advice. In Attorney-General's Reference (No. 3 of 1994) [1997] 3 WLR 421, the House of Lords held that injuring a child in utero could give rise to liability for manslaughter if the child dies subsequent to a live birth. Although the case concerned unlawful act manslaughter it would be logical for gross negligence manslaughter to arise when a foetus is negligently injured. Could an unreasonable or irrational refusal of a caesarean section be considered gross negligence? If the answer is affirmative then, where a woman refuses a caesarean section and the child dies subsequent to a live birth the woman may be guilty of manslaughter. This would be a draconian and undesirable way of `policing pregnancy' (see Fovargue and Miola 1998). By failing to address this question the Court of Appeal in R v Collins has left open the `lacuna' uncovered by the House of Lords in the Attorney-General's Reference (No. 3 of 1994) (see Fovargue and Miola 1998).

Finally, although the Court of Appeal delivered a useful judgment concerning the Mental Health Act 1983 and the procedural elements of applying for a declaratory order, their consideration of the issue of competence was, like previous cases, inadequate. The whole tone of the judgment suggests that the Court of Appeal believed that S was obviously competent. Perhaps because of this belief, Judge LJ only felt it necessary to re-iterate Lord Donaldson MR's view in Re T [1992] 3 WLR 782 at 799of a risk-related standard:

`What matters is whether at that time the patient's capacity was reduced below the level needed in the case of a refusal of that importance, for refusals can vary in importance. Some may involve a risk to life or of irreparable damage to health. Others may not.'

However, it is clear that the issue of competence is so flexible as to allow the Courts, or indeed the doctors who, in effect, will generally be responsible for deciding the issue, to determine it in the way that they feel is easiest on their conscience. This is supported by Thorpe LJ:

`However, what is consistent in principle may not be practical in application. It is, perhaps, easier for an appellate court to discern principle than it is for a trial court to apply it in the face of judicial instinct, training and emotion. Applications in Caesarean cases are confined to judges of the Family Division. Those judges are dedicated to upholding child welfare. It is simply unrealistic to suppose that the preservation of each life will not be a matter of equal concern to the Family Division judge surveying the medical dilemma....Unless the recognition of this consideration is legitimated there is an obvious risk of strained reasoning, increased litigation ... and stress in interdisciplinary co-operation' (see Thorpe 1997).

The risk-related standard of Lord Donaldson MR, accepted in R v Collins, is an illogical standard to apply to competence. Arguing for a risk-related standard confuses the importance of getting a decision right with the competence required to do so. It is the complexity, and not the risk, that is correlated with the understanding needed to make a decision. If a risk-related standard is accepted it necessarily follows that a refusal of treatment requires a greater level of competence than does consent. The argument goes: a risk-related standard means that the greater the risk to health the higher the standard required for competence. Medical treatment is only justified if, on balance, it is beneficial and less risky than refusing treatment. Since a refusal of treatment results in a greater risk to health than does consenting, a risk-related standard requires a higher level of competence to refuse treatment than to consent to it. As MR Wicclair states, `it seems odd to maintain that accepting treatment calls for significantly less decision-making ability than refusing treatment' (see Wicclair 1991).

Since the foetus may be considered a second patient the risk involved when a pregnant woman refuses a caesarean section is, arguably, the most risky medical treatment decision possible. A risk-related standard allows the doctors - and the courts - who are under moral and emotional pressure, to shift the goal posts and demand an unreachable level of competence in order to find the woman incompetent and so protect the foetus. Effectively, a risk-related scheme means that, where there is a high risk, consent is the only real option and paternalism sneaks in through the back-door. Since a choice requires at least two possible options a risk-related standard may deny the woman any choice at all. If she refuses consent then she will be deemed incompetent and her decision overruled. Thus, her only available option is to follow the doctor's advice and consent to the caesarean section. The error in thinking that justifies a risk-related standard is summed up by Wicclair, `...it is important to recognise that a stronger reason for making sure that a patient is decisionally capable should not be confused with a stronger standard of decision-making capacity'. It is the complexity of a decision, and not the risk per se, that should determine the level of competence required.

The Court in R v Collins, as in Re MB, also accepted that `fatigue, shock, pain or drugs' affect competence. As Margaret Brazier commented, `All are in so many cases an inevitable part of childbirth' (see Brazier 1997). While it is true that all of these may affect competence it would only be at the extremes. If this were not the case there would not be a single labouring woman or patient with an urgent or emergency medical problem who would be deemed competent. However, a subjective consideration of these factors may tip the balance so that rejection of medical advice will be equated with a woman whose capacity has been temporarily reduced below the acceptable level - a level which in most cases will be determined by a doctor. This will be especially true where a risk-related standard is applied. As the guidelines, detailed in R v Collins, effectively allow doctors to decide on the issue of competence and only approach the court if there is doubt, they are given almost a carte blanche to treat a labouring woman in the way that they feel would be in her best interests. This power is further supported by the potential for subjectivity allowed by the test in Re C [1994] 1 FLR 31, of which the third part - weighing information in the balance to arrive at a choice - allows greatest scope).

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Conclusion

The Court of Appeal in R v Collins, while correctly stating the law and re-establishing the primacy of autonomy, has failed to confront the very real problem of the issue of competence being used as a sword by doctors and the courts instead of a shield by the pregnant woman. Barbara Hewson is right to describe this situation as a catch-22 (see Hewson 1998): women may only refuse consent if they are competent but any refusal signifies a lack of competence and may therefore be overridden. Whether or not you believe that women's rights should take precedence over foetal rights, salving the doctor's and judge's conscience by using a conveniently flexible standard of competence cannot be right. Society must have an interest in the protection of both the mother and her unborn child. If the judges are unwilling, and maybe rightly so, to confront the policy arguments then they need urgent consideration by Parliament. If the Family Court judges find it hard to follow the ruling in R v Collins, as predicted by Thorpe LJ(vide supra), the competence issue allows room for manoeuvre as was shown by Johnson J, in Rochdale Healthcare(NHS) Trust v C [1997] 1 FCR 274, when, after a two minute hearing, in the absence of the woman and on `only the scantiest information', he overruled the obstetrician's opinion that C was competent. It must be scant comfort to a woman to know that she was wronged when the wrong has already happened.

Bibliography

Brazier, M (1997), `Hard Cases Make Bad Law?' 23(6) Journal of Medical Ethics 341.

Brock, DW (1991), `Decision-making Competence and Risk' 5 Bioethics 105.

Fovargue, S and Miola, J (1998), `Policing Pregnancy: Implications of the Attorney-General's Reference (No. 3 of 1994)' 6 Medical Law Review 265.

Hewson, B (1998), `Could the High Court order you to have an operation?' 115 Living Marxism 24.

Mason, JK and McCall Smith, RA (1994) in Law and Medical Ethics 4^th ed. (London: Butterworths) p 218.

Rhoden, NK (1986), `The Judge in the Delivery Room: The Emergence of Court-Ordered Cesareans' 74 California Law Review 1951 at p1971.

Stauch, M (1997), `Court-Authorised Caesarians and the Principle of Patient Autonomy' 6 Nottingham Law Journal 74.

Thorpe LJ (1997), `The Caesarean Section Debate' Family Law 663.

Wicclair, MR (1991), `Patient Decision-Making Capacity and Risk' 5 Bioethics 91.