Caesarean Sections, Autonomy and Consent

 

In the past week in the UK, an Italian woman has claimed that a health trust had carried out a Caesarean section on her against her will. Whilst details of the case are still emerging, it appears that the woman had been detained under the Mental Health Act whilst pregnant after suffering a panic attack (which, it is reported, was possibly a result of a failure to take medication for a pre-existing mental health condition). Having been hospitalized for a number of weeks, the woman was given a Caesarean section whilst under sedation without consent. It appears that a health trust had been granted permission to carry out the procedure from the Court of Protection. Further to this, Essex social services also decreed that the mother was unfit to raise the child, and took the child into its care.

The case has proved to be highly controversial; it has attracted widespread media attention, with an MP promising to raise the case in parliament. Whilst it raises several moral issues, here I shall consider the question of whether it can ever be morally permissible to compel a woman to undergo a Caesarean section against her will.

The UK has a very firm legal stance on this matter, following a precedent set in St George’s Healthcare NHS Trust v S (1998). In this case, a woman was forced to undergo a Caesarean section despite the fact that she refused to give consent to the procedure having understood all the relevant facts. Her refusal was based on a belief that pregnancy is a natural process which ought to be allowed to take its course whatever the outcome. The judge ruled in her favour, pointing out that:

 

            [An unborn child's] need for medical assistance does not prevail over [the mother’s] rights. She is entitled not to be forced to submit to an invasion of her body against her    will, whether her own life or that of her unborn child depends on it.

 

From the perspective of medical ethics rather than law, we can understand some of the cases in which non-consensual Caesarean sections are considered as cases in which two of the ethical principles that govern ethical medical practice come into conflict; namely, the principles of beneficence and respect for autonomy. Conflicts between these two principles are commonplace in medicine, and nowadays at least, it is generally believed that the principle of autonomy should normally prevail; that is we believe that competent patients should have the right to refuse treatment even if that treatment is necessary for securing their well-being or indeed their own continued survival. Again, this view is enshrined in medical law, and it is indicative of the prevalence of anti-paternalistic attitudes amongst many medical ethicists.

However, in some cases of enforced Caesarean sections, it is not only the patient herself whose welfare the physician must consider. Whilst having a Caesarean section can be in the mother’s own interests (despite the accompanying risks of the procedure), in some cases such a procedure may be carried out because it is in the interests of the baby’s health rather than (or in addition to) the mother’s. As such, considerations of justice must enter into our moral deliberations in such cases.

Accordingly, the judge’s verdict in St George’s Healthcare NHS Trust v S (1998) is not only interesting simply because it suggests that respect for a patient’s autonomy might require that her physicians fail in their duty of beneficence to her; it is most interesting because it suggests that respect for a patient’s autonomy should also overrule the physician’s duty of beneficence to the patient’s child. Establishing whether or not this view is morally justified is well beyond the scope of this blog post. However, it is worth noting that this view goes far beyond the Millian Harm Principle, which is often cited in support of the claim that the principle of autonomy ought to overrule the principle of beneficence. According to this principle, the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others; their own good, either physical or moral, is not sufficient warrant. Whilst it may not be morally permissible to force a competent patient to undergo a Caesarean section simply because it is in their own interests on Mill’s principle, it is perfectly compatible with Mill’s principle that it may be permissible to exercise power over a woman in order to prevent harm to her unborn child.

As such, the legal precedent here cannot necessarily draw on all of the arguments that are use to support general anti-paternalism in medical ethics. Nevertheless, given that the aforementioned legal precedent is in place, it might be claimed that women’s autonomy is adequately protected by the law, since the legal precedent suggests that a patient cannot be forced to undergo a Caesarean section against her will. In view of this precedent, and although the precise details of what exactly occurred have not emerged in the recent case that I am considering here, it seems that the most plausible way in which it would have been legally permissible for the health trust to make the Italian woman undergo a forced Caesarean section was if the woman was deemed incompetent to make her treatment decision; this would be in keeping with the fact that the woman had been detained under the Mental Health Act. If this is so, then it suggests a worry about whether the legal precedent adequately protects women’s autonomy; whilst there may be clear cases in which a woman refusing a Caesarean section is not competent to make a decision due to some pre-existing mental health problem (as might be the so in the case that I am considering here), in other cases, the conditions of competence might feasibly be interpreted in such a way as to make it impossible for a woman to competently refuse to consent to a Caesarean section that was necessary for saving her child’s life (and possibly her own).

It is generally agreed that a patient’s refusal to consent to a treatment is only to be respected if the patient is deemed competent to make the decision to so refuse. In the UK, the Mental Capacity Act 2005 (henceforth MCA) states that a person is competent to make a treatment decision if they have, and are capable of exercising during the decision making process, the following necessary abilities:

 

a)       The ability to understand the information relevant to the decision.

b)       The ability to retain the information for long enough to be able to make a decision.

c)       The ability to weigh up the information as part of the process of making the decision.

d)      The ability to communicate the decision.

 

Conditions (a) and (c) are of particular interest to us here because it seems that women who refuse to consent to a Caesarean section that is necessary to save their child’s life are particularly vulnerable to the charge that they fail to meet one of these two necessary conditions of capacity.

Consider first condition (a); a patient must be able to understand information that is material to their treatment decision in order to be competent to make that decision. We might add to this that since different sorts of information will be material to different sorts of decision, it seems that the standards of competence will vary across different decisions. Whilst this seems plausible, a somewhat more controversial claim that some medical ethicists endorse is that the standard of understanding used in assessments of competence ought to be raised in accordance with the degree of risk to health that will result from the patient’s decision. Interestingly, in the St George’s case, the presiding judge seemed to endorse this view in his verdict, following Lord Donaldson M.R. in claiming with regards to the question of the patient’s competence to consent that:

 

            What matters is whether at that time the patient’s capacity was reduced below the level   needed in the case of a refusal of that importance, for refusals can vary in importance.  Some may involve a risk to life or of irreparable damage to health. Others may not.

 

As Maclean points out in his analysis of the St George case, a worry with this risk related standard of competence is that in many cases in which enforced Caearean sections are considered, a refusal to undergo the procedure will leave not only the patient, but also her child, at a very high risk of serious damage to health. Accordingly, there seems to be some warrant to Maclean’s claim that:

 

            A risk-related standard allows the doctors – and the courts – who are under moral and  emotional pressure, to shift the goal posts and demand an unreachable level of   competence in order to find the woman incompetent and so protect the foetus. [1]

 

This, Maclean suggests, allows paternalism to “sneak in through the back-door”.

It seems that there is another way in which paternalism could sneak in through the back- door with regards to assessments of competence. Consider condition (c); a patient ought to be able to weigh up material information as part of their decision making process. One might worry about how exactly a patient’s ability to do this will be assessed in the cases that we are considering here. More specifically, in the case of enforced Caesarean sections, we might worry that those assessing the patient’s competence might hold the view that a woman’s refusal to undergo a Caesarean section that was necessary to saving both her child’s life (and possibly her own) would simply be evidence of the fact that she lacked the capacity to adequately weigh material information in her decision-making process. To adopt this substantive rather than procedural account of competence would be to make it theoretically impossible for a woman to competently refuse consent to a Caesarean section that was necessary for saving her child’s life (and possibly her own). Again, it seems that this could be another way in which paternalism could sneak in through the back door.

To be clear, I am not suggesting that either of these abuses of the concept of capacity occurred in the case that I am considering here (or others), or that they will do in future. However, if we agree with the legal precedent and wish to protect the moral position that it entails, then we must be on guard against these sorts of interpretations of competence to consent that would legally allow a degree of paternalism that those who endorse the precedent would abhor.

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3 Responses to Caesarean Sections, Autonomy and Consent

  • Nikolas Schaffer says:

    I don’t think the concept of “paternalism” is terribly helpful here. It implies that the health professionals involved are motivated by some sort of unduly oppressive ideology, rather than a perfectly reasonable concern for the lives and welfare of patients under their care. When we are talking about a baby ready to be born, we’re unambiguously talking about a human being; there is no rational basis for medical practitioners to regard this person as being the private property of the mother (or anyone else), and therefore not entitled to his/her own right to adequate medical care.

    “To adopt this substantive rather than procedural account of competence would be to make it theoretically impossible for a woman to competently refuse consent to a Caesarean section that was necessary for saving her child’s life”

    The only important question here is whether or not a Caesarian section would pose a real risk to the mother’s life or basic health in the future. If not, then it should be mandatory if it’s required to save the child’s life. It should surely be the case that “competence” in this context means: the ability to make rational decisions. There is unlikely to be any rational reason to reject the judgment of medical experts in cases like this.

  • Owen Schaefer says:

    An interesting case, indeed. I don’t think the present standard is as problematic as Maclean suggests, though. The worry, as I understand it, is that the standards of (a) and (c) could be set such that almost no one who contravened doctors’ recommendations would be deemed competent to refuse treatment. But there is no indication that this policy is being used in such a way, or that it will evolve that way in the near future. From the news article linked, the woman was not deemed unfit due to her objection to the C-section – she was deemed unfit because of an underlying mental condition. Furthermore, the woman was denied custody of this child (and, apparently, previous children in Italy) due to failure to appropriately manage her condition with medication. The article’s details are too sparse for a reader to fully evaluate whether the determination of competence and custody was indeed fair, but I don’t think anything indicates there’s a risk of back-door paternalism. We should really start being worried if a similar case arises where there is no diagnosis of any mental health condition, and the sole evidence adduced for incompetence is refusal of a treatment, or even lack of medical expertise. But the decision in the St. George case indicates that is a legal non-starter and present policy is not terribly dangerous to patient autonomy (at least, for those without underlying medical conditions – a compelling objection to present policy could be raised based on disability rights and disrespect for the autonomy of those with mental conditions).

    I have to say, though, that I found Nikolas’s comment above quite alarming. He endorses a strongly substantive notion of competence to consent, such that only substantively rational (reasonable?) decisions are competent and one cannot autonomously dissent from apparently ‘rational’ interventions. Such a standard would more or less abolish any useful notion of autonomy. In any case where the powers-that-be determine one option is the most rational/reasonable, one would have no right to dissent. This standard could be made a bit more palatable by making it only apply to harms to others, but even there it would be overly strong – parents would have almost no freedom to deviate from the most-rational methods of childrearing, as determined by the relevant experts.

  • Nikolas Schaffer says:

    Owen, when I said “It should surely be the case that “competence” in this context means: the ability to make rational decisions” I was specifically (and only) responding to this statement:

    “To adopt this substantive rather than procedural account of competence would be to make it theoretically impossible for a woman to competently refuse consent to a Caesarean section that was necessary for saving her child’s life”

    …and I concluded that if the Caesarean does not seriously threaten the mother’s health, she has no rational reason to refuse the operation. To demand that the life of a baby ready to born should be protected by rationally-based ethics is surely essential in a secular society that recognises and observes the concept of universal human rights, including the right to adequate medical care for all.

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