September 1998 Vol. 25.3

Sheila Kitzinger's Letter from Europe

Court-Ordered Caesareans in the UK

I was lecturing in Turin just after the judgement by three law lords in Britain that a court-ordered Caesarean on a woman in her right mind was illegal. The Italian midwives were astonished. Women in Italy are often over-ruled in the best interests of the baby, and since obstetricians are the experts, their decision is authoritative and sacrosanct, they told me. They believed that no-one would question a decision made by an Italian obstetrician against a woman's wishes. When I discussed this with Piera Maghella, the Italian birth activist who started the Active Birth Movement there, she commented: `We have priests and doctors. They are very powerful. And women in childbirth are terribly vulnerable.'

In Britain, however, the law is unequivocal: compulsory surgical or invasive treatment of a male or female patient is illegal. It is as illegal to force a woman to submit to Caesarean section as it would be to force anyone to give bone marrow or a kidney, even to someone who desperately needed a transplant, and even if that person was his own child.

When 36 weeks pregnant, a 30-year old veterinary nurse registered with a London general practitioner and asked for a home birth.¹ The doctor examined her and told her that she had pre-eclampsia and must come into hospital immediately for induction. She declined, saying that she wanted a natural birth and that she would go to Wales and have her baby in a cave there, rather than going into a hospital. The doctor called in a social worker who tried to convince her that she should be admitted to St George's Hospital, Tooting, for induction. The mother was crying. She said the baby's father had left her. When it was suggested that she was depressed, she admitted that she probably was. She was subjected to cross-questioning for hours on end until late at night. Her blood pressure (not surprisingly) remained high. A psychiatrist was called in and it was arranged for her to be forcibly admitted to a mental hospital and detained for `assessment'.

The mother three times refused her consent, and recorded in writing her `extreme objection to any medical or surgical intervention' and made it `absolutely clear that it (a Caesarean section) is against my wishes and I should consider it an assault upon my person.' She wrote, `I have always held very strong views with regard to medical and surgical treatments for myself, and particularly wish to allow nature to “take its course”, without intervention. I fully understand that in certain circumstances this may endanger my life. I see death as a natural and inevitable end point to certain conditions, and that natural events should not be interfered with. It is not a belief attached to the fact of my being pregnant, and would apply equally to any condition arising.' She called a firm of solicitors, talked to a lawyer for half-an-hour, and said she would seek legal advice first thing in the morning.

But that was not to be. Just before midnight she was transported to a maternity hospital. An application was made to a judge in a Family Court, in an emergency lunch-time hearing, who was told by the hospital authorities, that she had been in labour for 24 hours and that this was a life or death situation with only minutes to spare. In fact, she was not in labour. Though her psychiatrist considered that her `capacity for consent was intact,' the court was not told of this. A hearing took place in which the judge was not notified that `Ms S' had already instructed solicitors, and which was even kept secret from the woman herself. The judge ruled that she could be compelled to have a Caesarean section. The Caesarean was performed. Ms S offered no physical resistance,but said that she was submitting to surgery against her will.

After a restless night she woke at 7.15 am, said that she was very angry that the hospital had gone against her wishes, and complained of physical assault. She at first rejected her baby. Five days later she was returned to the mental hospital, where she was examined by a psychiatrist who said that there were `no current abnormalities in her mental state.' She was released from detention and immediately discharged herself.

In this important case three judges ruled that both the detention and the Caesarean operation were unlawful, even though a High Court judge sanctioned it. The woman had a right to damages against the National Health Service for false imprisonment and trespass to her person. They also ruled that any declaration made in a court hearing when someone is not represented does not protect doctors and hospitals from being sued for trespass. The court reaffirmed the right of any competent adult, male or female, to refuse medical or surgical intervention, even if the result was certain death for the individual or for a fetus.

This ruling opens the way for 12 other women who have been forced to undergo Caesarean sections to sue the National Health Service. In these cases, too, rushed decisions have been made by a Family Court judge, often late at night.

The Mental Health Act cannot be used to detain an individual against her will merely if her thinking process is unusual, even bizarre and irrational, and contrary to the views of the majority of the community. That is a fundamental constitutional principle that can be traced back to the Magna Carta of 1297.

The judges laid down guidelines `to avoid any recurrence of the unsatisfactory events recorded in this judgement.' Doctors and hospital managers must consider, as a priority, whether a patient is mentally competent. If so, the individual's decision must be respected. If there is a court hearing, the patient should be allowed to consult a solicitor, and must be represented at the hearing.

The British Medical Association welcomed the ruling. A spokeswoman said that `the fact that a woman has moral obligations to her baby, does not mean the health professionals or the courts can compel her to fulfil them.'²

The general public's view may be different. In an hour long phone-in radio programme on the subject a consultant gynaecologist and I both supported the legal decision. But most listeners who called in strongly believed that it was right to force a woman to have a Caesarean. They criticised Ms S for being `selfish' and `not thinking about her baby.' They were very angry. If we had suggested that she should be hanged I think that some of them would have agreed to it with enthusiasm!

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