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Report No. 196

Butler-Sloss LJ then referred to other Caesarian Section decisions:

(a) In Tameside and Glossap Acute Services Trust v. CH: 1996 (1) 7 FLR 762, the patient was suffering from paranoid schizophrenia and was admitted under section 3 of the Mental Health Act, 1893. She was found to be pregnant and the foetus was in danger if the pregnancy continued. There was overwhelming evidence that she lacked the capacity to consent to or refuse the treatment proposed. Wall J, in making the declaration sought under section 63 of that Act, set out the general principles which govern nonconsensual treatment and applied the three-part test (the case in Re C decided by Thorpe J, called the 'C-Test').

(b) The next case as to caesarian section is Norfolk and Norwich Healthcare (NHS) Trust v. W: (1996) (2) FLR 613. That was a peculiar case where the lady, who was under pschiatric treatment, came to the hospital in labour denying that she was pregnant. She was in a state of arrested labour. The obstetrician considered a forceps delivery or a caesarean section had to be performed. A psychiatrist examined her and found she was not suffering from a mental disorder.

He was not certain whether she was capable of comprehending and retaining information about the proposed treatment but she continued to deny she was pregnant. He was not sure if she was capable of believing the information about the treatment. He was, however, of the opinion that she was not able to balance the information given to her. This was the C test. Johnson J (at p.616) held that:

"although she was not suffering from a mental disorder within the meaning of the statute, she lacked the mental competence to make a decision about the treatment that was proposed because she was incapable of weighing up the considerations that were involved. She was called upon to make that decision at a time of acute emotional stress; and (the) physical pain in the ordinary course of labour made even more difficult for her because of her own particular mental history."

The judge was satisfied that the operation was in her best interests and that, in the circumstances, the court had power, at common law, to authorize the use of reasonable force.

(c) Rockdale Healthcare (NHS) Trust v. C (unreported, 3 rd July 1996) also related to a caesarian operation. During the hearing of Norfolk, above referred to, Johnson J was approached for an urgent declaration because the obstetrician considered that the caesarian section had to be carried out within an hour if the foetus was to survive and risk of damage to the patient's health was to be avoided. The lady had previously a caesarian section and she said she would rather die than have it again.

It was not possible to obtain psychiatric evidence in the time available. The obstetrician considered that the patient was fully competent. The judge had very little time and only 'the scantiest information' upon which to assess the patient and make a decision. Johnson J applied the C test (as laid down by Thorpe J) and found that the patient was not capable of weighing up the information that she was given, the third element of the C test. Johnson, J. held:

"The patient was in the throes of labour with all that is involved in terms of pain and emotional stress. I concluded that a patient who could, in those circumstances speak in terms which seemed to accept the inevitability of her own death, was not a patient who was able properly to weigh-up the considerations that arose so as to make any valid decision, about anything of even the most trivial kind, still one which involved her own life."

Adverting to this case, Butler-Sloss LJ commented that one may question whether there was evidence before the court which enabled the judge to come to a conclusion contrary to the opinion of the obstetrician that she was competent. Nonetheless, he made the declarations sought. In fact, the patient changed her mind and consented to the operation.

(d) Re L, (unreported, 5 th Dec. 1996) is yet another case of caesarian operation. Kinkwood J was faced with an application, on facts similar to the Re MB. It was again a case of needle phobia. An urgent application was made in respect of a patient L, in her twenties who had been in labour for some hours and the labour had become obstructed. In the absence of intervention, the foetus was at risk and deterioration was inevitable and death would follow.

The carrying of a dead-foetus would be injurious to the patient's health and the removal of the foetus by surgical procedure would become necessary. An emergency caesarean section was strongly indicated. L wanted her baby to be born alive but she suffered from needle phobia and was unable to consent to the use of a needle and therefore (opposed) to the proposed course of treatment. Kirkwood J applied the C test of Thorpe J and said:

"that her extreme needle phobia amounted to an involuntary compulsion that disabled L from weighing treatment information in the balance to make a choice. Indeed, it was an affliction of a psychological nature that compelled L against medical advice with such force that her own life would be in serious peril."

The learned Judge held that she was incapable of weighing the relevant treatment information in the balance and thus lacked the relevant mental competence to make a treatment decision. He further held that it was in her best interests to have the operation and he granted the declaration sought by the hospital.

(e) Butler-Sloss LJ referred also to Re S (Adult: Refusal of Medical Treatment) 1993 Fam 123 C = 1993 (1) FLR 26) where Sir Stephen Brown, President had to take a decision in a matter of 'utmost urgency'. The hearing was brief, the lady could not be represented. The Health Authority and the hospital applied for emergency caesarean section. The Official Solicitor acted as amicus curiae.

The patient's objection was based on religious grounds. The court stated that it was approached at 1.30 pm, the hearing was at 2.00 pm and the order was at 2.18 pm. Stating that there was no direct English case at that time, he relied upon an American case in Re C (1990) 573 A 2d 1235 (1240, 1246-1248, 1252). The judge said:

"I do not propose to say any more at this stage, except that I wholly accept the evidence of Mr P as to the desperate nature of this situation, and I grant the declaration as sought."

(F) Conclusions of Butler-Sloss LJ on "capacity of a woman to decide": on medical intervention to her. (Butler-Sloss LJ) (caesarian cases)

"(1) Every person is presumed to have the capacity to consent to or to refuse medical treatment unless and until the presumption is rebutted.

(2) A competent woman who has the capacity to decide, may, for religious reasons, (or) other reasons, (or) for rational or irrational reasons or for no reason 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. In that event, the courts do not have the jurisdiction to declare medical intervention lawful and the question of her own best interests objectively considered, does not arise.

(3) Irrationality is here used to connote a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided it could have arrived at it. As Kennedy and Grubb Medical Law (Butterworth, 2 nd Ed, 1994) point out, it might be otherwise if a decision is based on a misperception of reality (e.g. the blood is poisoned because it is red). Such a misperception will be more readily accepted to be a disorder of the mind.

Although it might be thought that irrationality sits uneasily with competence to decide, panic, indecisiveness and irrationality in themselves do not as such amount to incompetence. The graver the consequences of the decision, the commensurately greater the level of competence required to take a decision: (Re T (above), Sideway (a) 1985 AC 871 at 904, Gillick vs. West Norfolk and Wisbech Area Health Authority and Another: (1986) AC 112 169 (186).

(4) A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or refuse treatment. That inability to make a decision will occur when

(a) the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question:

(b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision. If, as Thorpe J observed in Re C (above), a compulsive disorder or phobia from which the patient suffers stifles belief in the information presented to her, then the decision may not be a true one. As Lord Cockburn CJ put it in Bank vs. Goodfellow (1870) LR Q B 549 (569): 'one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration':

(5) The 'temporary factors' mentioned by Lord Donaldson MR in Re T (viz. confusion, shock, fatigue, pain or drugs) may completely erode capacity but those concerned must be satisfied that such factors are operating to such a degree that the ability to decide is absent.

(6) Another such influence may be panic induced by fear. Again, careful scrutiny of the evidence is necessary because fear of an operation may be a rational reason for refusal to undergo it. Fear may also, however, paralyse the will and thus destroy the capacity to make a decision.

(G) Having exhaustively analysed the principles, Butler-Sloss LJ referred to the "Guidelines from the Royal College of Obstetrians and Gynaecologist entitled "A Consideration of the Law and Ethics in relation to Cour.- Authorised Obstetric Intervention". The guidelines, it was observed, provide an interesting dissertation on the decisions so far made in the Courts, a summary of the problems which arise, and give advice to the members of the medical profession who have to meet them. The Committee concluded:

"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 foetus, at risk."

The learned Judge observed that the above guideline correctly reflects the present state of the law. "The only situation in which it is lawful for the doctors to intervene is if it is believed that the adult patient lacks the capacity to decide." "If the competent mother refuses to have the medical intervention, the doctors may not lawfully do more than attempt to persuade her. If that persuasion is unsuccessful, there are no further steps towards medical intervention to be taken.

We recognize that the effect of these conclusions is that there will be situations in which the child may die or may be seriously handicapped because the mother said no and the obstetrician may not be able to take the necessary steps to avoid the death or handicap. The mother may indeed later reject the outcome, but the alternative would be an unwarranted invasion of the right of the woman to make the decision.



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