Policing Pregnancy

The Law and Ethics of Obstetric Conflict

Sheena Meredith

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9780754644125
• eBook ISBN: 9781351910545
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Are pregnant women entitled to the same rights of self-determination and bodily integrity as other adults? This is the fundamental question underlying recent high-profile legal interventions in situations when pregnant women and healthcare staff do not agree on management options or appropriate behaviour. Courts on both sides of the Atlantic have sometimes answered that they are not, and the law has at times been manipulated to enforce compliance with medical recommendations. This is the first book of its kind to offer a comprehensive assessment of healthcare law as applied to the unique situation of pregnancy. Drawing on case material from both the UK and the USA, it describes the trend towards 'policing pregnancy' and explores the emergence of the concept of 'maternal-foetal conflict' - and why, in the author's view, this would be more appropriately labelled 'obstetric conflict'. Suggestions are made for alternative approaches that better safeguard the overall well-being of pregnant women and their future children.

Chapter 1
Pregnant Women and the Law

Court cases in which medical staff seek to impose treatment on unwilling pregnant women represent a unique legal situation. Even in those instances where the hospital or physician is apparently acting in the pregnant woman’s best interests, as well as those of the foetus, the very possibility of a health care provider instituting legal action aimed at overriding a patient’s wishes is in many ways an extraordinary development, especially since such cases have proceeded even when it is perfectly clear that the woman concerned is legally competent to take her own decisions. A prime purpose of seeking the court’s approval to proceed with the unwanted treatment, either by an injunction forbidding the woman to refuse intervention or by declaratory relief stating that intervention without consent is not unlawful, is in order for medical staff to avoid later sanctions that might otherwise ensue.

This, in turn, implies an unprecedented degree of antagonism and suspicion on both sides of the physician-patient relationship. Whilst such a combative medical stance may be seen partly as a response to the increasingly litigious – and less compliant – nature of the modern patient, particularly perhaps the obstetric patient, it has functioned to draw the law, and wider society, into what was previously a highly private, privileged and in many ways intimate relationship. Introducing the possibility of legal conflict and potential compulsory treatment transforms the confidence, trust and support supposedly inherent in medical interactions and dramatically alters traditional notions of physician-patient relationships in the case of pregnant women.

The ‘two patient’ model of mother and foetus¹ has played a substantial role in this shift and, although lacking legal standing in the UK and, to an extent, in most parts of the US (vide infra), undoubtedly has emotive power affecting judicial emphasis, as will be discussed. Especially where conflict arises around the time of birth, applications to sanction forced intervention are likely to require a rapid decision – often outside normal working hours – prompting disregard of normal procedural rules and heightening the emotive force of potential foetal damage with the threat of escalating risk due to delay.

The impetus for such haste is likely to stem from the medical party to the case, and the decision to be based on medical evidence supplied by the same protagonist(s), with little time for detailed consideration or adequate representation for the woman. Such actions are, of course, predicated on the notion that the medical view of the situation is the correct one, as well as on a view that physicians (or hospital administrators, or social workers) have a greater claim to having the foetus’s best interests at heart and to safeguarding foetal well-being than does the woman carrying the foetus. They assume, furthermore, that the statements of the treating physicians in individual cases represent an absolute body of factual medical knowledge not subject to debate or to differences of opinion or variations in practice – a notion that has been repeatedly demonstrated to be inaccurate.

As will be discussed, the courts have tended to take medical evidence in such cases at face value, even though the situation is clearly very different from the assumed usual dispassionate role of the medical expert witness – and generally there are no witnesses appearing for the other side who might take a contrary view. In many cases in both the US and the UK, the court was not put in full possession of all the facts, medical pronouncements were often highly subjective and the woman was effectively left in the position of an unrepresented (and often unnotified) defendant; yet the unwanted procedure for which the order was sought was to be carried out by the party seeking the declaration.

Perhaps unsurprisingly, the initial outcome of such cases has often been a summary decision based on the alleged medical facts. Even if retrospective examination of the legal principles subsequently allows more considered judgment, by the time of any appeal, it is too late – ‘it must be scant comfort to a woman to know that she was wronged when the wrong has already happened’, as Maclean puts it.² Moreover, whilst court cases in the UK have been numerically insignificant, the ramifications have been widespread – as perhaps even more so in the US against its background of both an increased number and broader scope of such actions.

Legal Background: The Right to Consent to Medical Treatment

On the face of it, the legal position appears straightforward. Self-determination is a basic human right firmly entrenched in and protected by the common law in both the UK and the US, as well as recognised as fundamental to the standards of civilised society:

The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.³

Common law in the US has long recognised the vital importance of bodily integrity, as expounded as long ago as 1891 when the court refused to force someone to submit to surgical examination:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from restraint or interference of others, unless by clear and unquestionable authority of law.⁴

Even those accused of a crime cannot be subject to forced invasion of the body in order to recover evidence.⁵ As applied to medicine, in Judge Cardozo’s famed explanation:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.⁶

The US position has been further refined by the doctrine of informed consent, which requires that not only must a patient freely and voluntarily consent to any proposed medical procedure, but also that this consent be given with an appropriate understanding of the circumstances, based on sufficient knowledge of the risks, benefits, burdens and reasonable alternatives. This, in turn, places on the physician a legal onus of adequate disclosure of ‘sufficient information to enable the patient to make an informed judgement whether to give or withhold consent to a medical or surgical procedure’,⁷ meaning the risks and benefits that a reasonable person in the patient’s position would want to know in order to make an informed decision.⁸

Not only must the physician impart details of the diagnosis; the nature, purpose and risks of the proposed treatment, and the alternatives thereto; but also he or she must be satisfied that the patient comprehends the information and has decisional capacity. Any patient who is a competent adult has the right to decide whether a particular medical treatment is in his or her own best interests. ‘The law protects [an individual’s] right to make her own decision to accept or reject treatment, whether that decision is wise or unwise’⁹ – indeed, it was said in Matter of Conroy (1985) that:

If the patient’s right to informed consent is to have any meaning at all, it must be accorded respect even when it conflicts with the advice of the doctor or the values of the medical profession as a whole.¹⁰

Moreover the right of refusal has been explicitly upheld even when the proposed procedure was of potential major benefit to another. In McFall v Shrimp (1978), a man with a rare bone marrow disease sought a court order to compel his cousin, the only compatible donor, to submit to a bone marrow transplant. The court refused, commenting:

For our law to compel the Defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual and would impose a rule which would know no limits.¹¹

Exceptions for Emergencies and Incapacitated Patients

Other than with minors, there are two general exceptions to the rule of informed consent under US law. If consent cannot be obtained in an emergency because the patient is unconscious or otherwise incapable, and no surrogate (vide infra) is immediately available, the treating physician is entitled to presume consent for procedures that are immediately vital and cannot be postponed until capacity is regained, based on the presumption that the patient would consent to such treatment if able to do so. This rule would also apply in the case of a patient undergoing surgery in whom the need for a more extensive procedure arises during the course of the operation, provided again that need is critical and cannot be postponed, including until a surrogate decision-maker can be found. The presumption can however be rebutted by evidence that the patient would not want such intervention, for example a living will stating advance refusal of consent for life-prolonging treatment, or an advance refusal of blood transfusion by a Jehovah’s Witness.

The other exception is in the non-emergency situation of a patient judged incompetent or incapable of taking his or her own decisions. In such cases, vi...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• Preface
• Cases cited
• Acknowledgements
• Introduction
• 1 Pregnant Women and the Law
• 2 Power Imbalance in Court
• 3 Is the Law Being Used to Enforce Compliance with Medical Advice?
• 4 Undermining Capacity to Consent - Another Route to Compliance
• 5 Questioning Child Welfare - Protection or Punishment?
• 6 Ongoing Challenges to Autonomy
• Conclusions
• Bibliography
• Index