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Report No. 196

(15) Re MB (Medical Treatment), 1997(2) FLR 426

The case is quite important and deals with refusal of Caesarean operation by a pregnant lady and raises the question whether, if the refusal is to be treated as one made by a 'competent person', the doctors could be given leave to perform the Caesarean operation with a view to save the life or prevent brain damage to the foetus. Question is whether the life of the mother or of the child (to be born) has priority? The trial Judge granted permission but the Court of Appeal refused leave.

There the appellant attended the clinic when she was 33 weeks pregnant. She refused to allow blood samples to be taken because of her 101'fear of needles'. When she was 40 weeks pregnant, it was found that the foetus was in the breach position. It was explained to the patient that a normal delivery would pose serious risk of death or brain damage to the baby. She initially gave consent in writing and so did her partner but later she panicked on account of 'needle phobia' and withdrew consent. Finally she agreed but refused to allow anaesthesia. The health authority applied to court and the court granted leave to the gyanecologist to operate on her, using reasonable force, if necessary.

On 18.2.97, after she finally refused at 9.00 pm, the hospital sought a court order at 9.25 pm and Hollis J made a declaration at 9.55 pm permitting the operation. Earlier in the day, the lady was provided with her own lawyers. After decision of Hollis J, Mr. Francis Q.C again spoke to her and she asked him to file an appeal. On the following morning, she signed another consent form and co-operated fully in the operation as well as for induction of anaesthesia. A boy child was born after the caesarian operation. The appeal was file.- perhaps to settle the issues arising in the case.

(A) Butler-Sloss LJ speaking on behalf of the Court of Appeal, agreed with the trial judge and held that-

(1) patient's consent is necessary for invasive medical treatment and that a mentally competent person was entitled to refuse medical treatment, whether for good or rational or even for irrational reasons or for no reasons at all, even where that decision might lead to his or her death. The only situation in which it was lawful for the doctors to intervene was where 'it was believed that the adult patient lacked the capacity to decide and the treatment was in the patient's best interests'. The court did not have the jurisdiction to take into account the interests of the unborn child at risk from refusal of a competent mother to consent for medical intervention.

(Dicta of Lord Donaldson in Re T (Adult: Refusal of Treatment) sub non Re T (An Adult: Consent to Medical Treatment) and of Sir Stephen Brown (President) in Re S (Adult: Refusal of Medical Treatment) where he had to take an urgent decision, even without consulting the patien.- were dissented).

(2) Medical treatment can be undertaken in an emergency even if, through lack of capacity, no consent had been competently given, provided the treatment was a necessity and did no more than was reasonably required in the best interests of the patient Re F (Mental Patient: Sterilization): 1990 (2) AC1.

(3) On the facts, the evidence of the obstetrician and the consultant psychiatrist established that the patient could not bring herself to undergo the caesarian section she desired because a pani.- fear of needles dominated everything and, at the critical point she was not capable of making a decision at all. On that basis, it was clear that she was at the time suffering from an impairment of her mental functioning which disabled her and was temporarily incompetent.

Test in Re. C (Refusal of Medical Treatment): 1994(1) All ER 819 applied.

(4) Furthermore, since the mother (pregnant lady) and father wanted the child to be born alive and the mother (the pregnant lady) was in favour of the operation, subject only to her needle phobia, and was likely to suffer long term damage if the child was born handicapped or dead, it must follow that medical intervention was in the patient's best interests, with the use of force if necessary for it to be carried out. In these circumstances, the judge was right in granting the declaration.

(B) On the question of capacity to decide, the Court of Appeal quoted Lord Donaldson (Re T (An Adult) (Refusal of Medical Treatment) (1993 Fam 95 (102) = 1992 (4) All ER 649 sub nom Re T (An Adult: Consent to Medical Treatment) 1992 (2) FCR 458 (460): (at p.112) (at p.470) as follows: (That was case of a pregnant lady involved in a car accident who required blood transfusion)

"Capacity to decid.- The right to decide one's own fate presupposes a capacity to do so. Every adult is presumed to have that capacity, but it is a presumption which can be rebutted. This is not a question of the degree of intelligence or education of the adult concerned. However, a small minority of the population lack the necessary mental capacity due to mental illness or retarded development (see, for example Re F (Mental Patient) (Sterilisation) 1990 (2) AC1). This is a permanent or at least a long term state. Others who would normally have that capacity may be deprived of it or have it reduced by reason of temporary factors, such as unconsciousness or confusion or other effects of shock, severe fatigue, pain or drugs used in their treatment.

Doctors, faced with a refusal of consent, have to give very careful and detailed consideration to the patient's capacity to decide, at that time when decision was made. It may not be the simple case of the patient having no capacity because, for example, at that time he had hallucinations. It may be the more difficult case of a temporarily reduced capacity at the time when his decision was made.

What matters is that the doctors should consider whether at the time he had a capacity which was commensurate with the gravity of the decision which he purported to make. The more serious the decision, the greater the capacity required. If the patient had that requisite capacity, they (doctors) are bound by his decision. If not, they are free to treat him in what they believe to be in his 'best interests'."

(C) The Court of Appeal quoted Thorpe J in Re C (Refusal of Medical Treatment) 1994 (1) FCR: 1994 (1) All ER 819, (There it was a man of 68, suffering from paranoid schizophrenia refusing to have an amputation of his leg) to the following effect:

"I consider helpful Dr E's analysis of the decision-making process into three stages: first, comprehending and retaining treatment information, secondly, believing it and, thirdly, weighing it in the balance to arrive at choice." This is known as the 'C Test'.

(D) (i) The Law Commission of UK has proposed a similar approach in para 2.20 of its Consultation Paper 129, "Mentally Incapacitated Adults and Decision-Making".

(ii) In 1995, the Law Commission of UK recommended in Law Com No.231 on 'Mental Capacity' (in paras 3..- 3.23) that a person is without capacity at the material time if he is unable by reason of mental disability to make a decision for himself on the matters in question either because:

"(a) he is unable to understand or retain the information relevant to the decision, including information about the reasonably foreseeable consequence of deciding one way or another or failing to make the decision; or

(b) he is unable to make a decision based on that information." "Mental disability' was defined as a disability or disorder of the mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning."

(E) Caesarian Section cases:

Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back

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