Commentary: A decision that stretches the law too far

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 be used for the purpose.6 9 Such “incompetence” need not be permanent: it may, for example, be the temporary result of panic induced by needle phobia or fear of anaesthesia;6

• While the courts have the power to declare that proposed treatment is lawful, such a declaration does not bind anyone who is not a party to the legal case, and in any event: “will not alter the legal status of the proposed conduct.”10 It provides only a discouragement, and no legal obstacle, to further proceedings.

Other decisions about the legality of performing a caesarean section against the apparent wishes of the mother have all been under the common law.6 9 11 12 In Re S no finding was made that the mother lacked competence,11 and in my view it was therefore not correct to say that an operation without her consent was lawful. In other cases the judges decided, firstly, that the mothers were not capable of weighing up the considerations involved in refusing caesarean sections and that they were therefore not competent and, secondly, that the caesarean sections were in their best interests and thus lawful.

The case of CH breaks new ground because it was not decided under these principles of common law. It turns on section 63 of the Mental Health Act, which is contained in part IV and thus applies only to a patient liable to be detained under the act. It was based on a reading of the section that “treatment for mental disorder” does not mean only treatment for the mental disorder itself but includes “a range of acts ancillary to the core treatment.”13

Caesarean section: treatment for mental disorders?

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In the earlier case of B v Croydon Health Authority the court had for that reason declared lawful the force feeding of a patient with borderline personality disorder whose compulsion to self harm had made her refuse food.13 Basing his decision on that authority, Mr Justice Wall concluded that the proposed caesarean section was not “entirely unconnected” with CH's mental disorder because “it is not … stretching language unduly to say that achievement of a successful outcome of her pregnancy is a necessary part of the overall treatment for her mental disorder.”1 He went on to conclude: “Since the defendant's consent to it is not required Dr G is entitled, should he deem it clinically necessary, to use restraint to the extent to which it may be reasonably required in order to achieve the delivery by the defendant of a healthy baby.”

What should we make of all this? Others have commented, and will continue to comment, on the ethical dilemma: the Court of Appeal has expressly declined to do so, saying: “This is not a court of morals.” To a lawyer, these cases raise serious problems, both procedural and substantive.

Procedurally, there has been a sense of unease because decisions are being taken about invasive surgery on a mother at a time of stress when she has had no legal representation, with the official solicitor not invariably present in court, at short notice, and on principles being developed on a case by case basis. However, the Court of Appeal has now laid down guidelines stating that, if possible, problem cases should be identified and brought before the court early; that the mother should be represented; that the official solicitor should take part as amicus curiae unless he or she represents the mother; and that, if possible, there should be evidence of the mother's background and circumstances and (preferably from a psychiatrist) her competence.6 This protocol should calm fears about procedural injustice.

However, the substantive law is not satisfactory. Firstly, it is not even clear if part IV of the Mental Health Act and the common law are mutually exclusive or not.14 Secondly, the degree of permissible force that can be used in a mother's “best interests” despite her continuing objections is difficult to identify. Thirdly, as to the new statutory approach, I can only say that the extension of the phrase “treatment for mental disorder” to include caesarean section would surely have surprised those who framed the Mental Health Act. Insofar as it is treatment for any disorder of the mother, it is surely treatment for physical disorder.

As one judge said about a decade ago: “If the law is to be extended in this manner, so as to impose control of the mother of an unborn child where such control may be necessary for the benefit of that child, then under our system of parliamentary democracy it is for parliament to decide whether such controls can be imposed and, if so, subject to what limits and conditions.”5 Until then, judges, confined by principles of the common law and a statutory phrase that evolved in context quite different from those under discussion, will have to do their best with imprecise and inappropriate legal tools and will indeed find it difficult not to let their hearts rule their heads: doctors will have to obey a law that may conflict with their ethical obligations to a viable fetus in need of rescue.