January-June 2016
ISSN 2050-005X (Online); 978-1522795582 (ISBN-13); 1522795588 (ISBN-10)
In Norfolk and Norwich Healthcare NHS Trust v W1, Justice Johnson found a mother incompetent to refuse a caesarean section despite not suffering from any mental disability because, as a result of “acute emotional stress and physical pain in the ordinary course of labour”2, he believed that she was not able to weigh up the information presented to her. On that very same day, Johnson J similarly decided in Rochdale Healthcare NHS Trust v C3 that the mother was not capable of weighing the information given to her because she “was in the throes of labour with all that is involved in terms of pain and emotional stress”4. Besides suggesting that the state of labour has a bearing on finding the patient incapable, Johnson J went further to assess the content of the patient’s refusal—that one who was able “to accept the inevitability of her own death” was evidence of someone who was incapable of weighing up the information, therefore her refusal of a caesarean section that could potentially save her life would be invalid.5 These two cases illustrate the creation of a catch-22 situation, whereby if a competent mother exercises her discretion to refuse medical intervention, the psychiatrist and judge would consider the mother incompetent by virtue of that very decision. The corollary is that “women in labour may only have the capacity to withhold consent as long as they do not”.6 Such an illusion of autonomy demonstrates how pregnant women have implicitly been newly classed as incompetent adults.
Keywords: Enforced caesarean section, patient autonomy, right to life, incompetent adult, consent, Mental Capacity Act 2005
7 (Adult: Refusal of Treatment) [1992] 3 WLR 782.
8 Ibid., 8.
9 In the case of Re S (Adult: Refusal of Treatment) [1992] 4 All ER 671.
10 (Adult: Refusal of Treatment) [1994] 2 FCR 151, 153.
11 (An Adult: Medical Treatment) [1997] 2 FCR 541.
12 Ibid.
13 [2003] EWCA Civ 1779.
14 Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643.
15 Wyatt, para 16.
16 Re T.
17 Re S.
18 Ibid., 672.
19 Mathew Alexander Thorpe, “Consent for Caesarean Section: Part 1 Development of the Law” [2000] Catholic Medical Quarterly. http://www.cmq.org.uk/CMQ/2000/consent_for_caesarean_1.htm accessed 31 December 2014, p 5.
20 Heather Cahill, “An Orwellian Scenario: Court Ordered Caesarean Section and Women’s Autonomy” [1999] 6 Nursing Ethics 494, 496.
21 Royal College of Obstetricians and Gynaecologists, A Consideration of the Law and Ethics in Relation to Court-Authorized Obstetric Interventions (London, 1994) 5.12.
22 Kristina Stern, “Court-Ordered Caesarian Sections: In Whose Interests?” [1993] 56 MLR 238, 243.
23 Aurora Plomer, “Judicially Enforced Caesareans and the Sanctity of Life” [1997] 26 Anglo-American Law Review 235.
24 [1998] 3 All ER 673.
25 Cahill, 4.
26 Ex parte S, 681.
27 Ceri Widdett & Michael Thomson, “Justifying Treatment and Other Stories” [1997] 5 FLS 77; Lieve Gies, “Contesting the Rule of Emotions? The Press and Enforced Caesareans” [2000] 9 SLS 515, p 524; Sabine Michalowski, “Court-Authorised Caesarean Sections – The End of a Trend” [1999] 62 Modern Law Review 115.
28 [1997] 1 FCR 269.
29 Ibid., 272.
30 [1997] 1 FCR 274.
31 Ibid., 275.
32 Ibid.
33 Widdett, 86.
34 Cahill, 498.
35 John Harris, The Value of Life: An Introduction to Medical Ethics (first published 1985, Routledge 1990), 198.
36 Alasdair MacLean, “Caesarean Sections, Competence and the Illusion of Autonomy” [1999] 1 WebJCLI.
37 Ex parte S.
38 Maclean.
39 Caroline Wells, “On the Outside Looking In: Perspectives on Enforced Caesareans”. In: Sally Sheldon & Michael Thomson, Feminist Perspectives on Health Care Law (Cavendish 1998), 237-255.
40 National Health Service, ‘How To Make a Birth Plan’ (5 February 2015) http://www.nhs.uk/Conditions/pregnancy-and-baby/pages/how-to-make-birthplan.aspx#close accessed 9 October 2015.
41 [2012] EWHC 4378.
42 Ibid., para 1.
43 Ibid., para 2.
44 [2014] EWHC 132.
45 Ibid., para 16-17.
46 Ibid., para 19-20.
47 [2014] EWCOP 30.
48 Ibid., para 72-130 and Annex.
49 Ibid., para 115.
50 Re T, n 7.
51 Ibid.
52 John Stuart Mill, On Liberty (Oxford, Oxford University Press, 1859).
53 [1980] 3 EHRR 408.
54 (in utero) [1998] Fam 122.
55 Ex parte S, 692.
56 Heather Draper, “Women, Forced Caesareans and Antenatal Responsibilities” [1996] 22 JME 327, 328.
57 Ibid.
58 See In Re AC (1987) 533 A.2d 611.
59 Cahill, 501.
60 Draper, 329.
61 Re E [2012] EWHC 1639, para 140.
62 Jeremy Bentham, A Fragment on Government (London 1776), Preface.
63 Samuel Scheffler, The Rejection of Consequentialism (Oxford: Oxford University Press, 1982).
64 Susan Bewley, “Restricting the Freedom of Pregnant Women” in Donna Dickenson, Maternal Fetal Ethics (Cambridge: Cambridge University Press, 2002), 131-145.
65 John Harris, “The Survival Lottery” [1975] 50 Philosophy 81.
66 Emily Jackson, Medical Law: Text, Cases and Materials (3rd edn; Oxford: Oxford University Press, 2013), 218.
67 Cahill, 496.
† Final Year LLB Candidate, University of Leicester School of Law.
1 [1997] 1 FCR 269.
2 Ibid., 272.
3 [1997] 1 FCR 274.
4 Ibid., 275.
5 Ibid.
6 Ceri Widdett & Michael Thomson, “Justifying Treatment and Other Stories” [1997] 5 FLS 77, 86.
(2016). The Illusion of Choice—Have Enforced Caesarean Cases Introduced a New Class of Incompetent Adults?. Legal issues Journal, 4 (1), https://www.legalissuesjournal.com/article/04-01-12012016/
