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Some recent forced caesarean cases in the Family Division show that family judges are keen to extend the categories in which non-consensual surgery can be authorised, under intense pressure from doctors and their lawyers.
The latest cases to be reported are Rochdale Healthcare (NHS) Trust v C and Norfolk and Norwich (NHS) Trust v W, heard by Justice Johnson on 3 July.
In Tameside & Glossop Acute Services Trust v CH (1996) FLR 762, Justice Wall decided that a caesarean was "treatment for a mental disorder" under the Mental Health Act 1983 (MHA), although he affirmed the right of competent patients to refuse treatment. He said that competence involved a three-stage test:
understanding information about proposed treatment; believing it (whatever that means); and weighing it up to make a choice.
Johnson has gone further, holding in C that a woman in labour was incompetent per se. In W he decided that the court's power to authorise the use of reasonable force on incompetent patients derives not just from section 63 MHA, but also from common law.
C was in labour and refused a caesarean; she suffered painful after-effects from one undergone previously and would rather die than have another one. Given that the obstetrician thought she was competent, it seems odd that the trust still applied ex parte for a forced caesarean order.
W was brought into hospital in labour after a car accident, having had no ante-natal treatment. The psychiatrist said she was not suffering from a mental disorder under the MHA and felt she was capable of instructing a solicitor. Nevertheless he said she was not able to balance information in order to make a choice. The judge ordered intervention (inter alia) to stop her feeling guilty if the foetus died.
Parliament has not authorised the forced detention of pregnant women for Caesareans. Nor has Parliament said that women in labour should be deemed incompetent. Yet women in labour may now expect to be shackled in maternity wards, if they don't do what obstetricians tell them.
Barbara Hewson is a barrister at 12 Gray's Inn Square and will speak at 'Breaking the chains: positive care in childbirth' at the Royal Society of Medicine on 21 September.