Mr Justice Hayden, sitting in the Court of Protection earlier this month, ruled that doctors could perform a caesarean section on a patient with previous mental health issues if she were to become agitated and subsequently lose mental capacity during labour.
Doctors from Guy’s and St Thomas’ as well as South London & Maudsley NHS foundation trusts sought a ruling to clarify whether performing a caesarean procedure without consent in the course of the woman’s obstetric care would fall within lawful conduct. Thus, the ruling was purely anticipatory of the patient losing her mental capacity but it nonetheless serves to highlight the ongoing tension between the fundamental concepts of self-determination and the desire of professionals to act in the best interests of patients.
This tension was further underlined by the fact that the woman had previously been found to be capable of making decisions in relation to her pregnancy and Mr Justice Hayden heard that she had expressed to doctors that a caesarean operation is ‘the last thing she would agree to’. Bridget Dolan QC, who led the legal team representing the NHS trusts, reaffirmed clinical opinion by arguing that the order was necessary for ‘[her] and her unborn child to ensure their health and safety and to minimise the risk of any significant and long-lasting harm’.
Where the line is drawn when determining whether an individual is mentally capable or incapable of making decisions is likely to continue to be a difficult and controversial area vis-à-vis treatment being potentially forced upon patients against their will.
Mr Justice Hayden described the problems presented by the case as ‘exceptional’ but he has in fact ruled on previous Court of Protection cases involving similar circumstances – most notably in January 2014 and February 2016. Both of these cases involved permission being granted for doctors to perform caesarean sections on pregnant mothers without their consent.
Moving forward, it is overwhelmingly likely that cases presenting similar issues will appear again. It is perhaps telling of Mr Justice Hayden’s reluctance to interfere with individual bodily integrity that he described the order he had been asked to make as ‘draconian’, that is to say excessively harsh, but issues such as these will arguably always require difficult choices due to the complex interplay between fundamental human rights and the provision of care in the best interests of patients they evoke.