Court‐Authorised Caesarean Sections — The End of a Trend?

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In recent years, several courts have been approached by hospitals asking for a declaration that it would be lawful for them to perform a Caesarean section on a patient without the patient's consent. Even though the facts of the various cases differ, almost all of these cases involved emergency hearings and required instant decisions, as in most of these cases the life of the patient and/or that of the foetus was at risk if the Caesarean section was not performed within hours of the application to the court. Before the recent decision of the Court of Appeal in St. George's Healthcare NHS Trust v S' in every case so far decided by a British court, the pregnant woman's refusal to consent to the Caesarean section had been disregarded and the performance of a Caesarean section without the patient's consent or even despite her explicit refusal had been declared to be lawful. In all cases but one,2 the decision rested on the court's assessment that the patient lacked the competence to validly refuse to have a Caesarean section.3 The urgency of the situation hardly left the courts sufficient time adequately to explore the factual as well as the legal issues arising in the particular case. Decisions in this area tend to demonstrate that the courts, when having to decide an urgent matter of life and death, prefer to decide in favour of preserving life, and the easiest way to reach such a decision is to declare the patient's incompetence. Given the far-reaching implications of this approach for the autonomy of pregnant women, the decision of the Court of Appeal in Re MB4 in which the Court developed guidelines for future cases of court involvement in emergency Caesarean sections becomes all the more significant. Re MB provided an opportunity to clarify the legal principles governing the determination of a patient's competence, the relevance of those principles for women in labour, and the application of the best interests test where the pregnant woman is found to be incompetent. In addition, the Court of Appeal examined the legal status of the foetus and discussed whether the foetus had any rights or interests that must be taken into consideration when deciding cases of emergency Caesarean sections.