Trusts face damages after forcing women to have caesareans

Two NHS trusts face a five figure damages claim after the Court of Appeal ruled last week that they acted unlawfully in detaining a veterinary nurse under the Mental Health Act and forcing her to undergo a caesarean section against her will.

Three judges held that Louize Collins, an approved social worker for the London Borough of Merton, unlawfully sectioned the 30 year old woman, named only as Ms S to protect her 2 year old daughter's identity. Her detention at Springfield Hospital, south London, by Pathfinder Mental Health Services Trust was also held to be unlawful, as was her transfer to and detention at St George's Hospital, where the operation was performed.

The judges ruled that the operation itself was unlawful and therefore a trespass, even though a High Court judge had sanctioned it. The decision gives Ms S the right to damages for false imprisonment for her eight days' unlawful detention and for trespass to the person for being forced to undergo treatment against her will. In a surprise move, the judges ruled that ex parte High Court declarations—that is, those made after only one side is heard by the judge—give doctors and hospitals no protection from being sued for trespass.

The ruling opens the way for up to a dozen other women who have been forced to undergo caesareans after rushed ex parte applications to sue trusts for damages. Women held to be incompetent to decide for themselves could have that finding reopened by the court. The appeal court reaffirmed the absolute right of a competent adult to refuse medical or surgical intervention, even if the result is certain death for herself or her fetus.

Ms S, who was 36 weeks pregnant, was sectioned for assessment in April 1996 after being diagnosed with severe pre-eclampsia and refusing a GP's advice to go into hospital to have the birth induced. Lord Justice Judge, sitting with Lady Justice Butler-Sloss and Lord Justice Robert Walker, said that her admission was unlawful because it was not a mental disorder which prompted it, as required by the act, but her pre-eclampsia.

Lord Justice Judge said that the High Court proceedings at which Mrs Justice Hogg granted a declaration sanctioning the operation were “extraordinary and unfortunate.” A barrister for St George's told the judge that Ms S had been in labour for 24 hours, though she never went into labour at all. He was given that information by the trust's solicitors, Bevan Ashford.

The judge was not told that a psychiatrist believed Ms S to be competent, or that Ms S had not been informed of the application though she had contacted a solicitor. Mrs Justice Hogg never asked whether Ms S was competent, though the judge would have had no power to override her refusal if she had been. Nor did the barrister raise the crucial question of her competence.

The judges laid down guidelines “to avoid any recurrence of the unsatisfactory events recorded in this judgment.” These will apply to any surgical or invasive treatment for a male or female patient. The guidelines expand on those laid down last year in the case of a woman with needle phobia. They require doctors and managers to consider, as a priority, whether the patient is competent. If she is, her decision must be respected, and a court application is pointless. If a court application is proposed, the patient must be allowed to consult a solicitor. If she has no solicitor or is unable to instruct a solicitor, the Official Solicitor must be notified as soon as possible. The patient must be represented at the hearing.

The BMA welcomed the ruling and said that the case showed an inappropriate use of the Mental Health Act. A spokeswoman said the fact that a woman has moral obligations to her fetus “does not mean the health professionals or the courts can compel her to fulfil them.” The two trusts and Merton council are expected to ask the House of Lords for leave to appeal.