Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
By Titlee Pandey
The landmark case of Re T (adult: refusal of treatment) laid down a fundamental principle of English law: any person with capacity can consent to or refuse medical intervention with or without giving a reason for their choice.[1] The aim of this article is to address the question of whether law and policy support the Re T principle of choice in practice with birthing women. Childbirth is a significant event in a woman’s life, and their experience of the process can have long-term physical and psychological ramifications.[2] Therefore, respect for their choice and consent in the procedure is crucial. The aim of this article is to address the question of whether law and policy support the Re T principle of choice in practice with birthing women.
Obiter in the Re T judgment itself discussed the proposition of there being an exception to the rule in the case of childbirth, as there are two patients (the birthing woman and foetus) involved. However, this is not good law, as the case of Re MB (Caesarean Section) held that a pregnant woman with capacity is entitled to refuse medical assistance, even where it is necessary.[3] Courts generally uphold the Re T principle and create no exceptions for pregnancy at law; a birthing woman has the right to accept or refuse any medical treatment whether or not she gives a valid reason. The general principle is in line with Re T, but as will be discussed, its implementation is problematic.
Despite the grand statement that the fact of childbirth does not alter the Re T principle, in Re MB, the birthing woman was still found to lack capacity to refuse medical treatment, due to her fear of needles. There is debate as to whether a phobia should be considered sufficient for a person to be found temporarily incompetent to refuse medical treatment. The decision was perhaps influenced by the notion that a woman is bound to lose capacity while in labour, on the basis of her perceived vulnerability, and that she consequently lacks the ability to make their own decisions. There is also The case of GSTT and SLAM v R furthers this presumption.[4] The court heard the case before the woman went into labour, which implies that the woman’s loss of capacity was inevitable. Decisions in such cases concerning the refusal of treatment are also impacted by a sense of urgency and need to ensure the well-being of both the woman and the foetus. It is clear that although the law creates no difference between the refusal of intervention during childbirth and any other medical situation, there is a divergence in the way the latter situation is considered in courts.
Controversy in policy on choice during childbirth is centred around maternal requests for caesarean sections. The National Institute for Health and Care Excellence (NICE) requires that where a birthing person requests a C-section, their reasons should be discussed, explored, and recorded.[5] If it is found that vaginal delivery is not an option post-discussion, a C-section be offered.[6] The guidelines state that an obstetrician opposed to providing a C-section, should, (not must) refer the pregnant person to another obstetrician. The framing of the policy raises two important questions. Firstly, if the pregnant woman has to convince her doctor and provide reasons for requesting a caesarean section, does this go against the grain of the principle in Re T which states that a person may give a valid, invalid or no reason for their decisions? If so, the policy is at odds with English law.
The second issue is that the availability of a caesarean section is premised on the NHS and resource availability 15% of NHS trusts explicitly do not offer the option of maternal requests for C-sections, another 47% partially offer it or have no written policy on the issue[7], meaning they may or may not agree to perform, creating a divide on the basis of geography, or a ‘postcode lottery’, for access to caesarean sections.[8]
The legal standpoint from the case of R Burke v General Medical Council is that a doctor’s obligation to provide treatment is not founded on the fact that the patient demands it.[9] Essentially, the doctor is not bound to perform a caesarean where they do not deem it to be necessary. Due to the power dynamics between the doctor and the birthing person, if the doctor believes that maternal requests for C-sections are clinically inappropriate, it could be difficult for birthing women to challenge their opinion. The rationality standard involved in the process of providing reasons might prove to be disadvantageous for those who are unable to articulate their reasons, or whose reasons are perceived as unimportant. The law from the case of Montgomery v Lanarkshire states that the doctor must disclose risks and alternatives with the patient.[10] The NICE policy, however, does not suggest any obligation to discuss maternal requests for C-sections as a reasonable alternative during childbirth. Such conflicts create many difficulties in obstetric care.
Returning to the question asked initially: does law and policy support free decision making in practice? The unfortunate answer is that despite attempts by the law to facilitate choice during childbirth, policy and actual implementation of the law fails to adequately support a woman’s ability to make decisions during childbirth. Free choice is constrained by the perception that there are two people to protect; although the foetus is not a legal person, such recognition appears hard to come to terms with for both doctors and courts.
[1] Re T (adult: refusal of treatment) [1992] 4 All ER 649 CA [2] Chloe Romanis, 'Homebirthing in the United Kingdom during COVID-19' [2020] 20(3) SAGE Journals <https://journals.sagepub.com/doi/full/10.1177/0968533220955224> accessed 20 February 2021 [3] Re MB [1997] EWCA Civ 1361. [4] GSTT and SLAM v R [2019] EWCOP 3. [5] NICE Guidance, Caesarean Section Clinical Guideline CG132 [2011]. [6] ibid. [7] Birthrights, 'Maternal Request Caesarean' (Birthrights, 2018) <https://www.birthrights.org.uk/campaigns-research/maternal-request-caesarean/> accessed 19 February 2021 [8] Birthrights, ‘Maternal request caesarean research highlights postcode lottery’ (Birthrights, Aug 2018) <https://www.birthrights.org.uk/2018/08/21/maternal-request-caesarean-research-highlights-postcode-lottery/> [9] R Burke v General Medical Council [2005] EWCA Civ 1003. [10] Montgomery v Lanarkshire [2015] 2 All ER 1031
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