Re MB (an Adult: Medical Treatment)
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Date | 1997 |
| Year | 1997 |
| Court | Court of Appeal (Civil Division) |
BUTLER-SLOSS, SAVILLE AND WARD, L JJ
Medical treatment – patient in need of Caesarian section in best interests of her unborn child – patient consenting in principle but repeatedly withdrawing consent because of needle phobia – medical intervention lawful only if adult patient was believed to lack capacity to decide.
Medical treatment – refusal by competent woman capable of making a decision even if irrational and capable of leading to death or handicap of her unborn child – physician not entitled to do more than try to persuade her to accept treatment – "best interests" test not applicable.
Procedure – mental capacity – guidelines for applications for declarations as to lawfulness of medical intervention when capacity of patient to consent or refuse was in issue.
The patient, aged 23, was the mother of one child and was carrying another. She did not attend an antenatal clinic until she was some 33 weeks pregnant. The baby was found to be in the breach position and at 50 per cent risk of serious injury during vaginal delivery. The patient was admitted to hospital where she agreed to delivery by Caesarian section. However, because of a needle phobia she was not prepared to allow blood samples to be taken nor to undergo anaesthesia by way of injection. She was seen by a consultant anaesthetist and agreed to anaesthesia by mask without injection. She went into labour and was taken to the operating theatre. However, when she saw the mask she refused to consent to anaesthesia.
Late that evening the hospital obtained a declaration from the court that it would be lawful for the gynaecologist to operate.
The patient appealed.
Held – dismissing the appeal: (1) The relevant principles to be applied were: (a) in general, physically invasive medical treatment without the patient's consent was a tortious and a criminal assault: Collins v Wilcox [1984] 1 WLR 1172 and Re F (Mental Patient: Sterilization) [1990] 2 AC 1; (b) a mentally competent patient had an absolute right to refuse medical treatment even when this might lead to the patient's death: Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871, Re T (An Adult: Medical Treatment)[1992] 2 FCR 861 and Re C (An Adult: Refusal of Treatment)[1994] 2 FCR 151; (c) in an emergency medical treatment could be given if, through lack of capacity, there was no consent, provided it was essential and no more than was reasonably required in the patient's best interests.
(2) Caesarian section cases could arise in circumstances of extreme urgency and, in
addition to the basic principles (above) to be applied, the court should bear the following considerations in mind. (i) That every person was presumed to have the capacity to consent to or refuse medical treatment unless and until that presumption was rebutted. (ii) That a competent woman who had the capacity to decide could for irrational reasons refuse medical intervention even though the consequence might be the death or serious handicap of the child she was carrying or her own death. In that event the courts did not have the jurisdiction to declare medical intervention lawful and the question of her own best interests, objectively considered, did not arise. (iii) That panic, indecisiveness and irrationality in themselves did not amount to incompetence but might be symptoms or evidence of incompetence. The graver the consequences of the decision, the commensurately greater the level of competence required to take the decision: Re T (An Adult: Medical Treatment)[1992] 2 FCR 861 and Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112. (iv) A person lacked capacity when some impairment or disturbance of mental functioning rendered that person unable to make a decision. Inability to make a decision occurred when a patient was unable to comprehend, retain and use information and weigh it in the balance. (v) Temporary factors such as shock, pain or drugs might completely erode capacity but those concerned had to be satisfied that such factors were operating to such a degree that the ability to decide was absent. (vi) Panic because of fear of an operation might be a rational reason for refusal to undergo it. However, fear might also paralyse the will and destroy the capacity to decide.
(3) If a competent mother refused medical intervention, doctors could not lawfully do more than attempt to persuade her. If that persuasion was unsuccessful there were no further steps towards medical intervention to be taken. The effect of these conclusions was that there would be situations in which the child might die or might be seriously handicapped because the mother said no and the obstetrician was not able to take the necessary steps to avoid the death or handicap. The only situation in which it was lawful for doctors to intervene was if it was believed that the adult patient lacked the capacity to decide.
(4) In the present case the patient wanted the child to be born, had consented to the Caesarian section, but refused the prick of the anaesthetist's needle which at the critical moment had dominated her thinking and made her incapable of making a decision. She was at that moment suffering an impairment of her mental functioning which disabled her and she was temporarily incompetent. In the emergency the doctors would be free to administer the anaesthetic if that were in her best interests and on the evidence in this case it was in her best interests for the child to be born alive and healthy.
(5) It was submitted that the court should take into account the interests of the unborn child and balance them against the mother's interests. Although this delicate and difficult question did not arise in the present case, as decisions of this sort had to be made swiftly, the court would state its conclusion on this issue. This was that the court did not have jurisdiction to take the interests of the foetus into account in a case such as the present and the judicial exercise of balancing those interests did not arise. The proposition that the court should take into account the interests of an unborn child at risk from the refusal of a competent mother to consent to medical intervention was not supported by a number of cases. An observation by Lord Donaldson, MR in Re T (An Adult: Medical Treatment)[1992] 2 FCR 861 at p 865B and the decision of Sir Stephen Brown, P in Re S (An Adult: Medical Treatment)[1992] 2 FCR 893 to the contrary must now be called in doubt. Statute law did not require the court to take into account the unborn child's interests when a competent mother refused medical intervention. Nor did any opinion of the European Commission of Human Rights assist the court on this issue.
(6) As to the practice to be followed in future applications when the medical profession felt it necessary to seek declarations from the courts: (i) The court was unlikely to entertain such an application unless the capacity of the patient to consent or refuse medical
intervention was in issue. (ii) For the time being doctors should seek a ruling from the court on the issue of competence. (iii) The problem should be identified early so the hospital and the patient could obtain legal advice. (iv) Where the case was not an emergency it was highly desirable that it was brought before the court before it became an emergency. (v) The hearing should be inter partes. (vi) The mother should be represented. If unconscious she should have a guardian ad litem. (vii) The Official Solicitor should be notified of all such applications and it would be helpful if he would act as amicus curiae where he was not the guardian ad litem. (viii) If competence was in issue there should be evidence as to this. (ix) Where time permitted, the person to give evidence as to capacity should be made aware of the observations of this judgment. (x) Where possible and time allowed the Judge should be provided with information about the circumstances and relevant background of the patient.
Per curiam: It would follow from the decision that a patient was not competent to refuse treatment that such treatment might have to be given against her continued objection. The extent of force or compulsion which might become necessary could only be judged in each individual case and by health professionals. It might become for them a balance between continuing treatment which was forcibly opposed and deciding not to continue with it. This was a difficult issue which might have to be considered on another occasion. In the present case only the prick of a needle was required. In the event, on hearing the decision of the court, the patient signed the consent form, co-operated in the initial administration of anaesthesia, and was delivered of a healthy baby.
Statutory provisions referred to:Abortion Act 1967, s 1 (as amended by the Human Fertilization and Embryology Act 1990.
Congenital Disabilities (Civil Liberty) Act 1976, s 1.
European Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 2 and 8.
Infant Life Preservation Act 1929, s 1.
Mental Health Act 1983, ss 3 and 63.
Offences Against the Person Act 1861.
Cases referred to in judgment:AC, Re (1990) 573 A 2d 1235 (USA).
Attorney General's Reference (No 3 of 1996) [1996] 1 Cr App Rep 351.
Baby Boy Doe, Re (1994) 632 North Eastern Reporter, 2d Series 32y (USA).
Banks v Goodfellow (1870) LR 5 QB 549.
Bruggemann and Scheuten v Federal Republic of Germany [1977] 3 EHRR 244.
Burton v Islington Health Authority[1992] 2 FCR 845; [1993] QB 204; [1992] 3 WLR 637; [1992] 3 All ER 833.
C v S [1988] QB 135; [1987] 2 WLR 1108; [1987] 1 All ER 1230.
C (An Adult: Refusal of Treatment), Re[1994] 2 FCR 151.
Collins v Wilcox [1984] 1 WLR 1172.
Crouse Irving Memorial Hospital Inc v Paddock (1985) 485 NYS.
F (Mental Patient: Sterilization), Re [1990] 2 AC 1; [1989] 2 WLR 1025; sub nom F v West Berkshire Health Authority [1989] 2 All ER 545.
F (In Utero), Re [1988] FCR 529; [1988] Fam...
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