Putting freedom of choice under the knife
4 August 1997
9 October 1996
6 March 1997
8 December 1997
Personal injury lawyers face a significant reassessment of claims following a landmark Lords ruling, writes Roger Pearson.
25 August 1998
18 February 1997
Court-ordered obstetric intervention is a licence to abuse vulnerable patients and sets a dangerous precedent for future cases of treatment refusal, says Barbara Hewson.
In the early hours of 20 February 1997, the Court of Appeal ordered a woman to undergo Caesarean surgery against her will. The reasons for the ruling have just been released.
The woman, MB, was not in established labour. Her life was not in danger. Her foetus was in the breech position. She had withdrawn consent to surgery, after initially agreeing to it. She was alleged to be a "needle phobic" which, the judges claimed, made her incompetent to refuse treatment. This followed an ex parte "needle phobia" case: L, Times LR, 1 January 1997.
A telephone application to Mr Justice Hollis late on 19 February (ex parte on notice) secured an initial order against MB. MB's appeal proved futile. The Court of Appeal ignored her right, enshrined in several House of Lords cases, to refuse surgery for reasons rational, irrational, or for no reason (see, for example, Lord Templeman, Sidaway v Bethlem Royal Hospital,  AC at 904).
This was unfortunate. To paraphrase Pope: "The sleepy judges soon the sentence sign/ And women bleed that lawyers may recline."
The medical basis for intervention was debatable. Were MB's obstetricians unable or just unwilling to do breech deliveries vaginally? Was MB offered external cephalic version (see Audit Commission Report, First Class Delivery 1997, page 47)? MB, described as "naive, not very bright", did not apparently give evidence and had no independent experts. On any footing, this was very unfair.
The law on consent, as laid down by the House of Lords, is clear. It is being subverted, needlessly, for three reasons: bad medicine, bad law and bad judging:
firstly, bad medicine: doctors who are not content to provide full and unbiased information on the pros and cons of intervention and the limits of their skills, who will not let the woman decide, but who require intervention on questionable medical grounds. Why was MB not simply offered a sedative?
second bad law: lawyers who rush to court in an "insurance-buying" exercise for hospital clients, knowing that a normal trial is impossible (with the result that hospitals can always have the upper hand) and knowing that adults can refuse treatment for reasons rational or irrational or for no reason.
thirdly, bad judging: courts which "shoot from the hip" and think about the reasons behind their decisions later.
If MB had accepted her doctors' advice, her competency would never have been questioned. But a refusal of a medical procedure does not necessarily denote incompetency. If this was the case, no one could refuse treatment.
The argument is circular. MB allegedly consented to surgery after the Court of Appeal's decision. But if she had refused, what would have happened? Physical force would have been applied, and her body would have been violated.
It is unacceptable that a pregnant woman should be overpowered for nonconsensual surgery, or cowed into submission in this way.
I fear that these cases are a licence to abuse vulnerable patients in future, because the Court of Appeal has lent its support to summary hearings where only one side gives evidence and only one side possesses experts.