Patients have a right to decide

Roger Pearson looks the increased rights of the patient to refuse life-saving treatment in light of the "S' Caesarean section appeal

A recent Court of Appeal decision is the latest in an increasing line of actions involving the rights of patients to dictate the way in which they are treated.

The case surrounds the challenge of a woman, identified only by the initial "S", to legal moves which paved the way for doctors to manage the birth of her baby as they thought fit – rather than as she wished.

Richard Stein of London-based Leigh Day & Co, who represented S, says the outcome of the appeal is one which should give some doctors cause to re-think their bedside manner.

When she was 36 weeks pregnant, S was diagnosed as suffering from pre-eclampsia. She was told that urgent medical attention was necessary, that she needed bedrest and that she would have to undergo an induced delivery.

She was told that without treatment her life, and that of her unborn baby, could be at risk. Although she understood this, she strenuously objected and told doctors she wanted the baby to be born naturally.

Despite her understanding of the situation and her continued objections, she was admitted to hospital against her will, under the provisions of the Mental Health Act 1983. A successful application was made to Mrs Justice Hogg in the Family Division for leave to dispense with her consent in respect of the proposed treatment. Doctors then carried out the procedures they considered appropriate and she gave birth to a baby girl by Caesarean section.

But now Lady Justice Butler-Sloss and Lords Justices Judge and Robert Walker have held that Mrs Justice Hogg was wrong to dispense with her consent and that her treatment at the hands of a social worker and the health trusts concerned was also wrong.

Setting out the rights of those such as S to have their wishes observed when it comes to treatment, Lord Justice Judge said that a woman should not be forced to submit to "invasion of her body against her will," even if her own life or that of an unborn child depended on it.

Even if such a woman had made a decision which might appear morally repugnant, that did not diminish her rights to object to treatment proposed by doctors, he said.

Stein says that S had made her views clear from the outset and that the fact she was going against the advice of the doctors was not a ground for her to be detained under the Mental Health Act and then subjected to treatment to which she plainly objected.

"She was clear about her view. It was a matter of principle and the case was very important to her," he says.

"More than this though, the importance for everyone involved in medical and medico-legal work is that the Court of Appeal has now clearly stated that provided a patient understands the risks associated with a course of action and is able to make a decision about that, then the courts will not help doctors intervene in the interests, as in this case, of a foetus.

"This decision means that doctors, midwives, nurses and lawyers advising someone such as S can now be clear about their position. They cannot intervene in the way that happened here unless it can be shown that the woman involved does not understand the implications of the decision she is making," adds Stein.

He concludes: "This case has clarified the legal framework and procedures necessary in future before a court can hear an application such as the one which was made in this case. I also believe that this case stresses the need for a better bedside manner on the part of a minority of doctors. They have got to take account of the views and wishes of their patients."