Forced Caesareans and Sterilisation Flashcards
Re S
First time court authorised a caesarean section without the mother’s consent. S did not consent to c-section even though there was a risk to her life and her baby’s life if she refused, on religious grounds. Hearing only 20 mins and S was not represented, even though Sir George Baker P (most experienced family law judge) heard the case. S lacked capacity to consent and it was in her best interests to authorise the c-section.
Hurried nature of the decision makes it questionable. Arguably looks like upholding the rule of law, since proper legal processes and rules must be complied with before allowing non-consensual caesareans. Doctors not afforded too much
Re F (In Utero)
CA held that a foetus cannot be made a ward of court. Sir George Baker P overlooked/ignored this case in Re S, so arguably Re S actually represents a failure in the rule of law by not applying binding legal authorities.
Norwich and Norfolk NHS Trust v W
Court authorised c-section without woman’s consent since lacked capacity (under s 3 MCA - unable to retain and weigh up information) and it was deemed to be in her best interests.
This is despite RCOG guidance which states that a woman should never undergo a c-section without her consent, provided she has capacity.
Re MB
Sets out current legal position on forced caesarean sections.
Competent woman has absolute right to refuse treatment, even if that puts her life or her baby’s life at risk.
Court authorised forced caesarean in this case because P was deemed to lack capacity due to her pathological fear of needles.
St George’s Healthcare NHS Trust v S
CA found that the HC judge’s previous decision to authorise the c-section was wrong because she was competent and refused consent. CA reaffirmed woman’s right to bodily autonomy - but the previous failure shows that this interest may be difficult to safeguard in practice. Arguably courts have been too willing to find lack of capacity in these cases wrongly.
Ruling of incompetence should be sought before the operation goes ahead - gives guidance which improves rule of law and clarity.
Widdett and Thomson
‘Justifying Treatment and Other Stories’ - argue that the courts have been too willing to find a lack of capacity wrongly in women for forced caesareans.
Rochdale Healthcare NHS Trust v C
C refused to give consent for caesarean and C’s consultant obstetrician informed the court that she appeared to be fully competent. Nevertheless, Johnson J authorised the procedure, arguing that C did not have capacity as she was in the “throes of labour with pain and emotional distress”.
Suggests:
- courts do not fully respect autonomy of women in this area (limits Re MB etc.)
- courts ignoring medical opinion and overriding it with their own judgement - should P’s capacity be an issue for clinical decision-making?
F v W Berkshire HA
Courts no longer have supervisory jurisdiction over forced sterilisation - can only issue declarations about whether it was lawful.
Nevertheless, HL said that doctors should still seek a declaration even though this is not strictly necessary. HL said that it would still be lawful for a doctor to sterilise a patient who lacked capacity without their consent provided it was in their best interests, as judged against a responsible body of medical opinion.
Re B
HL emphasised that the only consideration under the best interests test is the objective best interests of the patient - considerations of family/carer convenience or preference is not relevant.
Sterilisation should only be used as a last resort. However, arguably the courts have failed in applying rule of law here since there was a 30-40% chance of oral contraception being effective for B, which suggests that it was not used as a last resort in this case.
Re S
Court took a more robust approach in relation to the need for real risk of pregnancy safeguard for non-consensual sterilisation where P lacks capacity. Since there was evidence that pregnancy was a risk, judge declared that forced sterilisation would be unlawful.
Analysis of forced sterilisation cases
- Generally positive that courts have instructed doctors to seek declarations. Ensures decisions involving fundamental violations of autonomy are appropriate/additional safeguard.
- However, court cases have shown that there is not an absolute right not to have one’s fertility removed. Courts have not treated this issue much differently from general treatment of incapacitated patients - reasonable doctors must be satisfied that B cannot consent and it is in their best interests = lack of protection of autonomy by the courts and example where too much discretion afforded to doctors as it is a fundamental issue.
