Education And Debate

Commentary: A decision that stretches the law too far

BMJ 1997; 314 doi: https://doi.org/10.1136/bmj.314.7088.1185 (Published 19 April 1997) Cite this as: BMJ 1997;314:1185
  1. Adrian Whitfield, barristera
  1. a Three Serjeants' Inn, London EC4Y 1BQ

    Commentary

    The decision of Tameside and Glossop Acute Services Trust v CH,1 heavily criticised by academic writing,2 represents a further development of the law relating to “enforced” caesarean sections. It is important to distinguish this case, which was decided under section 63 of the Mental Health Act (1983), from cases decided under the common law. Now the basic principles of the common law are reasonably clear:

    • In common law an unborn child has no legal status and no rights,3 4 5 and, indeed, whatever the ethical position, the courts have no jurisdiction in law to take the interests of a fetus into account and balance them against those of the mother;6

    • An adult is deemed to be “competent” to consent to or refuse treatment unless the contrary is proved;6 7

    • A person, whether or not a patient under the Mental Health Act, is considered “competent” to make a decision about his or her medical treatment if he or she can comprehend, retain, and use information relevant to that decision and weigh it in the balance to arrive at a true choice;6

    • A person who is not “competent” to make the relevant decision can, under the common law, be treated in his or her “best interests,”8 and reasonable force may …

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