This article appears in the August 1998 edition of the Catholic Medical Quarterly
IS THE LAW AN ASS?
Imagine a single woman seeking registration at your practice and announcing she was approximately 36 weeks pregnant but had not sought ante-natal care. On examination she is found to be suffering from severe pre-eclampsia. Your reaction to this would probably be that she needed urgent attention comprising bed-rest with admission to hospital for induced delivery. Without that treat- ment, the health and life of both herself and her unborn child would be in great danger. But to your surprise, although she fully understood the potential risks, she rejects the advice. as she wants her baby to be born naturally. Not an easy situation for any doctor, but such was the beginning of the case which finally ended in the Court of Appeal under Regina v. Collins and Others, ex parte S.
Subsequently she was seen by a social worker, approved under the Mental Health Act 1983, and two doctors who repeated the medical advice: she again refused to accept it. An application was then made under section 2 of the Act by the social worker for her admission to Springfield Hospital for assessment and signed by the two doctors. S. was admitted to the hospital against her will. Later that day, again against her will, she was transferred to St. George's Hospital where in view of her continued refusal to consent to treatment an application was made ex pane to Mrs. Justice Hogg who effectively dispensed with S's consent to treatment. Appropriate medical procedures were carried out, and she was delivered of a baby girl by Caesarean section. She was later returned to Springfield Hospital, and her period of detention under the Act was terminated.
During the period when she was a patient no specific treatment for mental disorder or mental illness was prescribed.
The verdict of the Appeal Court was that, even when her own life depended on receiving medical treatment, an adult of sound mind was entitled to refuse it. That right of a pregnant woman was not diminished merely because her decision to exercise it would result in the death of an unborn child. The Mental Health Act could not be deployed to achieve the detention of an individual against her will merely because her thinking process was unusual, even apparently bizarre and irrational, contrary to the views of the overwhelming majority of the community at large.
Is then the law an ass? It says that the social worker and the doctors ought to have allowed the unhappy woman to go back to Wales protesting her absolute right to autonomy to pursue natural outcomes one of which assuredly would mean that her increasing hypertension would kill both her and her baby. Certainly the law is concerned with the freedom of the individual, but it applies even when that individual is mulish, dull witted or unstable. The interests of the unborn are neglected; moreover, in this instance it is not unreasonable to assume that the death of a fully formed baby in eclampsia would be accompanied by much suffering. As Professor lan Craft points out when commenting on the case, a future child's destiny can now be determined by the decision of a competent pregnant woman to refuse to accept medical advice given in the knowledge of its certain or potential death in utero even at full term, whereas the full force of the law would be exerted if she harmed her newborn baby within hours of its birth.1
The law seems to favour the parents rather than the baby. But there are cases particularly in Scottish law where damages have been awarded as a result of the baby being injured in utero before birth. Lord Caplan in the Court of Appeal said that a parent who loses a young infant will experience the same sense of loss irrespective of whether the injuries causing death originated shortly before birth or shortly after birth. In England Paul McLaughlan, aged six, from Londonderry was awarded �700.00 for injuries suffered before he was born when his pregnant mother crashed her car. Such instances give considerable support to the legal personality of the fetus, but, when the direct question is raised whether the fetus is a person, the answer is that the law recognises the personhood of fetuses only when it is expedient to do so. (1) In the abortion situation according to McCall-Smith, there have been several judicial pronouncements that the fetus is definitely not a person. In fact in a decision by the Court of Appeal (Attorney - General's Reference No. 3 of 1994 ), the unborn child was relegated to the status of 'a female appendage'.
In an attempt to clarify the law regarding the treatment of anorexia nervosa, the Mental Health Act Commission issued guidance for the profession because of the confusion over how far doctors can legally go to stop a patient from starving to death. It states that a Patient can be detained under the Mental Health Act 1983 and forcibly fed, usually through a naso-gastric tube. More patients with anorexia nervosa are likely to be force-fed to save their lives in the future. It follows from the case of Nikki Hughes who died in January 1996 weighing just four and a half stones. She had been under medical supervision for some time. The hospital in which she was treated sought legal advice and was told that feeding her without consent could have led to assault charges. Doctors were told they could not override her wishes not to eat. However doubts were raised regarding this decision, for, in 1992, the Court of Appeal ruled in the case of a 16 year old girl known as "J" that teenagers between 16 and 18 can legally be required to accept medical treatment without their consent. The rationale behind this is that anorexia nervosa is regarded as a mental illness and therefore could lead to sectioning under the Act. The new guidance advises that, if the patient is unable to make an informed decision, such treatment can be compelled. It is interesting to observe that, before Nikki Hughes died, case law was available saying that she could be treated. We might also speculate that, in the case of the single woman who refused medical treatment for eclampsia, similar reasoning could be applied and that Mrs. Justice Hogg was right. Perhaps the law is not an ass, but what about the lawyers?
- Letter to The Times May 13th 1998.
- Alexander McCall-Smith, The Times, When is a fetus a person and When is it not? 30 March 1993.