Court‐Authorised Caesarean Sections — The End of a Trend?
| Published date | 01 January 1999 |
| Date | 01 January 1999 |
| DOI | http://doi.org/10.1111/1468-2230.00194 |
| Author | Sabine Michalowski |
CASES
Court-Authorised Caesarean Sections – The End
of a Trend?
Sabine Michalowski*
In recent years, several courts have been approached by hospitals asking for a
declaration that it would be lawful for them to perform a Caesarean section on a
patient without the patient’s consent. Even though the facts of the various cases
differ, almost all of these cases involved emergency hearings and required
instant decisions, as in most of these cases the life of the patient and/or that of
the foetus was at risk if the Caesarean section was not performed within hours of
the application to the court. Before the recent decision of the Court of Appeal in
St. George’s Healthcare NHS Trust vS
1
in every case so far decided by a British
court, the pregnant woman’s refusal to consent to the Caesarean section had
been disregarded and the performance of a Caesarean section without the
patient’s consent or even despite her explicit refusal had been declared to be
lawful. In all cases but one,
2
the decision rested on the court’s assessment that
the patient lacked the competence to validly refuse to have a Caesarean section.
3
The urgency of the situation hardly left the courts sufficient time adequately to
explore the factual as well as the legal issues arising in the particular case.
Decisions in this area tend to demonstrate that the courts, when having to decide
an urgent matter of life and death, prefer to decide in favour of preserving life,
and the easiest way to reach such a decision is to declare the patient’s
incompetence. Given the far-reaching implications of this approach for the
autonomy of pregnant women, the decision of the Court of Appeal in Re MB
4
in
which the Court developed guidelines for future cases of court involvement in
emergency Caesarean sections becomes all the more significant. Re MB
provided an opportunity to clarify the legal principles governing the
determination of a patient’s competence, the relevance of those principles for
women in labour, and the application of the best interests test where the pregnant
woman is found to be incompetent. In addition, the Court of Appeal examined
the legal status of the foetus and discussed whether the foetus had any rights or
interests that must be taken into consideration when deciding cases of
emergency Caesarean sections.
The Modern Law Review Limited 1999 (MLR 62:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 115
* Faculty of Law, University of Sheffield.
2Re S (Adult: Refusal of Treatment) [1992] Fam 123.
Tameside and Glossop Acute Services Trust vCH [1996] 1 FCR 753.
4Re MB (An Adult: Medical Treatment) [1997] 2 FCR 541.
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