Appeal court rules against compulsory caesarean sections

The courts cannot authorise doctors to perform caesarean sections or other obstetric interventions on mentally competent women against their will, the Court of Appeal in London ruled last week, in a landmark judgment on the rights of pregnant women to refuse treatment.

The court confirmed that a competent woman has the absolute right to refuse intervention, even if she puts her own or her unborn child's life or health at risk. The court has no jurisdiction to sanction an operation to protect a fetus.

The ruling will help to allay concerns over the growing number of caesarean sections ordered by the courts in Britain. The High Court in London has sanctioned some half dozen operations in the last year after emergency applications by health authorities and NHS trusts. Women have not been represented in court, and in most cases the question of their competence was only cursorily addressed.

Last week's case concerned a 23 year old woman, MB, whose fetus was in a footling breech presentation. The unnamed hospital has a practice of delivering all such presentations by caesarean. MB agreed to the operation but withdrew her consent to the anaesthetic because of needle phobia. She was persuaded to be anaesthetised by mask but again panicked when she saw the mask, according to psychiatric evidence. MB's was the first such case is which the woman was represented by lawyers.

The High Court approved the operation, but the woman's QC, Robert Francis, took the case to the appeal court. After a two hour hearing that ended at 110 am, Lady Justice Butler-Sloss, Lord Justice Ward, and Lord Justice Saville refused MB's appeal. The operation went ahead and a healthy baby boy was delivered. The judges agreed that MB was incapable of making a decision because the phobia caused a temporary “impairment of her mental function which disabled her.”

But the mere fact that a woman is willing to endanger her own life or that of her unborn child is not a reason for pronouncing her incompetent, the judges pointed out. “The law is, in our judgment, clear that a competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though … the consequence may be the death or serious handicap of the child she bears or her own death … The court does not have the jurisdiction to declare that such medical intervention is lawful to protect the interests of the unborn child even at the point of birth.”

The court declared that the president of the High Court's family division, Sir Stephen Brown, was wrong when in 1992 he approved the first forced caesarean section in Britain, on a woman whose competence was not in question. The judges approved the conclusion of the Royal College of Obstetricians and Gynaecologists' ethics committee: “It is inappropriate, and unlikely to be helpful or necessary, to invoke judicial intervention to overrule an informed and competent woman's refusal of a proposed medical treatment, even though her refusal might place her life and that of her fetus at risk.”

The judges laid down guidelines for NHS trusts to follow in future cases, which seem likely to limit the numbers coming to court. They said that courts were unlikely to entertain an application unless the woman's competence was an issue; doctors should seek a court ruling on the issue of competence; the woman should be represented in all cases; the Official Solicitor should be notified; and potential problems should be identified as early as possible so that both hospital and patient could seek legal advice.