In the landmark case re capacity, Re T. Lord Donaldson described the only possible qualification against assuming capacity in an adult woman could be the loss of a foetus.

There have been a couple of these cases, with sensationalist reporting. What should be the powers of the state? How far should these powers go?

Re S [1992]

Religious woman refused c-section based on religious beliefs Risks of death to her and foetus

So an emergency application was made based on medical evidence (20 mins on phone). There wasn't time to hear womans views or examination of evidence.

Legally, saving the foetus shouldn't be in contention when assessing it.

The c-section was allowed, based on Lord Donaldson's caveat. Her refusal should be overriden in the 'vital interests'

Here they've assumed that best interests is prolonging of life, but what if her religious interests had said otherwise

Tameside & Glossop [1996]

A woman with fluctuating capacity, who at the time was felt not to have capacity to make decisions.

She needed to be induced (medical opinion)

She didn't want to give birth as she thought doctors would harm her baby

Doctors argued giving her a live baby would be in her medical best intersts. Doctors tried using the mental health act (that allows you to treat for mental health conditions), to say c-section would be for mental health.

The court held it in her best interests AND that c-section was a treatment for her mental health.

Norfolk & Norwich [1997]

History of psychiatric treament, presented in obstructed labout and denying that she was pregnant.

Dr thought she didn't have a mental disorder at the time, but was unable to ascertain capacity.

Held, authorising treatment that W lacked the mental competence to make a decision about the treatment proposed because she was incapable of weighing up the considerations involved. Termination of the labour was in her best interests for the above medical reasons. The situation was one where there was a necessity to act in the manner of a reasonable person, taking into account the best interests of the patient, and the court had power at common law to authorise treatment.

Normally there's no requirement for the patient to act reasonably, they can refuse for any reason!

Rochdale Healthcare (NHS)

C said she would rather die than go through back and abdomen pain after c-section

The court said "thats ridiculous" (not really, but basically) - but they did say that the pain held her to lack capacity. This is a bit wild, surely any woman in labour, or any patient ever will lose capacity.

Re L (1997)

Woman with fear of needles

Held to have emergency operation with injection

Re MB

Another needle phobia case.

Lady Butler-Sloss, confirmed that a competent pregnant woman may choose not to have a medical intervention.

But they held her to have temporarily incompetent.

The court held that the law was ill-equipped to deal with this

St Georges (1998)

This was a judicial review. The woman was arguing that the admission to mental health act against her will, the hospital got a declaration from the court and gave her a c-section for pre-eclampsia. She never received treatment for mental disorder.

Ethics

Ethics of Care

What about the ethics of care here?

Something about the ethics of embodiment - conjoined embodiment in pregnancy. May not answer

There are relational responsibilites of the competent pregnant

Tipping Point: Is there some gradual increase in responsibilities of the mother towards the rights of the foetus. Have they "missed their chance" to not select an abortion when it was an option?

Jonathan Herring - "Relational Thinking" - to help discern someone's TRUE autonomous wishes

There are duties of health care professionsals

Treating both the foetus and the mother as patients

There is a relationship of mutual persusasion - both doctor and patient have a duty to listen to each other and change their mind where necessary.

A tool for interpreting "best interests" for women lacking capacity.

There might be a need for an aid for best interests for women lacking capacity.

The case of Patton confirms that dad doesn't have right to veto mum's decisions.