Medical Treatment: Decisions and the Law

10. Managing Pregnancies

INTRODUCTION

The use of surgical deliveries has long been a controversial and sensitive subject. Concerns have been raised about a perceived increase in the incidence of such procedures and whether the current high rates are justified given the risks.

On the other hand, some medical opinion has viewed the movement in favour of natural birth with scepticism, doubting whether it is in the true interests of mother and child. Given that background, it is not surprising that there was controversy in the past when – in a small number of instances – patients were subjected to non-consensual surgical delivery. In most cases this occurred in the context of women who were, or were at least perceived to be, lacking in the mental capacity to decide whether or not to undergo such a procedure. In at least two cases, however, women who did not lack capacity were forced to have their babies surgically. Following the appearance of this type of case in the United States’ courts, it was not surprising that the English courts were drawn into the search for a legal sanction for non-consensual surgical deliveries. The development of legal thinking in this class of case is worth recounting as an object lesson of what can happen when the courts are placed under the pressure of demands to take urgent action to save life, and to demonstrate the dangers of assuming that the conclusions of previous cases can always be relied upon. The cases concerning caesarean section provide a useful guide to many of the principles involved in the application of the declaratory jurisdiction to medical treatment decisions and are therefore considered in some detail.

PROCEDURE FOR PATIENTS

It is for those providing care to the patient to make the application. The following situation should never arise, but should a patient fear that doctors are likely to try to impose an unwanted surgical delivery on her, she has the right to seek an injunction restraining them from doing so. If she retains the capacity to make her own decisions, or has made her wishes clear when in possession of her full capacity, or such an operation is not in her best interests, the court is likely to grant an injunction or a declaration that the proposed treatment would be unlawful, whichever remedy is appropriate. A declaration is appropriate where the hospital is prepared to give an undertaking to abide by the decision of the court, and that appears to give sufficient protection to the patient in the circumstances of the case.

The evidence on which those seeking to impose treatment rely should be obtained at the earliest opportunity. A request by a solicitor on behalf of the patient for disclosure of such information should be acceded to by any reasonable hospital authority.

For the best prospect of mounting a successful application, those advising the patient should seek evidence on the following matters:

  • the woman’s mental capacity to make decisions for herself – generally this will have to be given by a psychiatrist. In theory the patient could rely on the presumption of capacity, but it is likely that the hospital authority will adduce some evidence of incapacity which will require rebuttal;
  • any evidence of previously declared wishes in relation to the mode of delivery;
  • the intentions of the attending hospital staff;
  • the patient’s reasons for refusing the proposed mode of delivery; and
  • any reasons why it is not in her interests to undergo the proposed mode of delivery (generally this should be supported by independent medical opinion).

Usually, time will be short and the court must be notified immediately of the need for an urgent hearing.

Contents

  • A Introduction  10.1
  • B The legal background  10.2
  • Patient and foetal rights in obstetrics 10.2
  • Compulsory obstetrics  10.3
  • The caesarean section cases  10.4
    • The mentally competent adult patient: Re S (Adult: refusal of treatment) 10.5
      • Tameside and Glossop Acute Services NHS Trust v CH 10.6
      • An attack on the competence of pregnant women?  10.7
    • Needle phobias: Re L 10.8
    • A solution? Re MB 10.9
    • Re MB: Capacity  10.10
    • Re MB: Reasonable force 10.11
    • Re MB: Interests of the foetus  10.12
    • Re MB: Procedure  10.13
    • The solution  imposed  –  St  George’s  Healthcare  NHS  Trust  v S  10.14
  • C The Court of Appeal guidelines 10.15
  • Re AA (Compulsorily Detained Patient: Elective Caesarean) 10.16
  • Great Western Hospitals NHS Foundation Trust v AA 10.17
  • DD 10.18
  • FG 10.19
  • Court of Protection guidelines for obstetric cases 10.20
  • The Mental Capacity Act 2005 10.21
    • Advance decisions  10.22
    • Management of pregnancy in women who are comatose or in a permanent vegetative state 10.23
  • D A suggested procedure for obstetric units 10.24
  • Assessment of capacity  10.25
    • Advice to patients about nature of possible treatment 10.26
    • Discussion with patient about possible loss of capacity 10.27
    • Liaison between teams  10.28
    • Advance decisions  10.29
    • Psychiatric referral and assessment where capacity in doubt 10.30
    • Contingency planning for court application  10.31
    • Compliance with Court of Appeal guidelines 10.34
    • Continual advice to patient  10.35
  • E Procedure for patients 10.36
  • F Conclusion 10.37
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