For the broader O&G Magazine readership, balanced answers to those curly-yet-common questions in obstetrics and gynaecology.

‘A 36-year-old primigravida is fully dilated and has been pushing for three hours, with no descent of the fetal head. Despite sound obstetric advice and explanation, she steadfastly refuses caesarean section. Where does one legally stand in such circumstances?’

Situations such as this are always difficult to deal with for doctors, particularly since the legal position is not completely clear. Australian courts have not yet had to rule on a woman’s right to refuse a caesarean section (CS), and each patient’s circumstances are of course different.

There are, however, several English cases that have confirmed that women of ‘sound mind’ have this right even if the refusal is likely to result in the death of the woman and/or her unborn baby. By contrast, the decisions in the United States have divided across state lines, with some states taking the same approach as England, while others have ordered that a woman undergo a CS to save the life of the unborn baby. Were the issue to come before the Australian courts, we consider that the English approach is likely to be adopted; both countries do not recognise the fetus as a separate person, and therefore the rights of the mother will be upheld.

Presumption of capacity

In the English case of Re MB,¹ a patient refused a CS because she had a needle phobia. The Court of Appeal considered her right to refuse treatment and provided the following guidance:

1. ‘Every person is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted.². ‘Every person is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted.
2. A competent woman who has the capacity to decide may, for religious reasons, other reasons, for rational or irrational reasons or for no reason at all, choose not to have medical intervention, even though the consequence may be the death or serious handicap of the child she bears, or her own death. In that event the courts do not have the jurisdiction to declare medical intervention lawful and the question of her own best interests, objectively considered, does not arise.’³

The English cases⁴ formed the basis of the guidelines issued by the Royal College of Obstetricians and Gynaecologists⁵ that state:

The first question is whether the patient has capacity to consent to, or to refuse, treatment and is refusing recommended treatment. If the patient has capacity there is no action to be taken save for the making of meticulous notes.

Determining lack of capacity

A person lacks capacity if: ‘some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment.’⁶ Patients may have a temporarily reduced capacity at the time when the decision has to be made. This could be due to a compulsive disorder or phobia (such as the needle phobia in Re MB). It could also be due to confusion, shock, fatigue, pain or drugs or fear that operates to ‘paralyse the will and thus destroy the capacity to make a decision’.⁷ However, the courts have emphasised that in these situations doctors must be satisfied that ‘such factors are operating to such a degree that the ability to decide is absent’.⁸

The recent NSW case of Re a patient Fay⁹ considered different facts, but provides useful judicial guidance. The NSW Supreme Court was required to assess the capacity of a young woman to refuse a termination of her 22-week pregnancy in circumstances where continuation of the pregnancy was likely to result in serious injury to her health or her death. The court held that a person will be seen as lacking capacity if they are:

• unable to comprehend and/or retain information that is material to the relevant decision, in particular the consequences of the decision; or
• they are unable to use and weight the information as part of the process of making the decision.

Impact of advice on decision-making It has been recognised that patients are entitled to receive advice and assistance from others in reaching a decision, especially from family members, so long as it does not ‘overbear the independence of the patient’s decision’.¹⁰ In a situation where there is a dominant family member who appears to be unduly influencing the patient’s decision, you should seek input from a psychiatrist regarding the patient’s capacity, whether or not they are being influenced by someone else and also practical advice about managing the patient’s family, as appropriate. Legal advice may also be required to determine the options for addressing these difficult clinical circumstances.

Advice on the risks of refusal

Once a decision has been made that the patient has capacity to refuse treatment and she is not unduly influenced by anyone else, it is critical that she and her partner or close support person are fully aware of the potential consequences to the patient and her unborn baby by refusing a CS. You may wish to involve an obstetric colleague to provide a second opinion.

In particular, it should be explained what clinical steps will need to be taken in order to deliver the baby if the head does not descend. Such advice may include the different options for delivery methods depending on the level to which the fetal head descends, the condition of the fetus at each relevant time, as well as treatment options for delivery if the fetus does not survive. The advice given should be well documented in the medical records.

To ensure this information is properly understood, it is advisable to consider involving a social worker, psychiatrist or the patient’s GP if there is sufficient time to arrange this. If there are any language barriers to the patient understanding your advice, you should also involve an interpreter, preferably an independent one. It would also be prudent, and is sometimes required by internal policy, to escalate the matter to hospital management to, for example, the medical director or CEO, depending on the management structure in place at your hospital.

Antenatal care

It may be easier to address these difficult issues if you have had the opportunity to discuss them with the patient during antenatal visits. It is good practice to review a patient’s birth plan with them at that time. This can provide an opportunity for discussion about the treatment options if, for example, a patient expresses a firm view against a CS. The patient’s partner or other support person can be involved in the discussion.

If the patient tells you her particular wishes about escalation of treatment, it is important to document these in the medical records, together with discussion and advice given at that time. Consider also the benefit of consulting your colleagues at that time, either for a second obstetric opinion or from other specialities as part of a multi-disciplinary approach.

Change of mind

While a patient may have initially steadfastly refused to have an operation, she may change her mind as the labour continues. It is important to let her and her support person know that she can opt for the CS at a later stage, provided that it is still clinically feasible.

In our experience, once the potential consequences are clearly explained, most women do change their mind and agree to a CS with a safe delivery of their baby. Further advice should be sought from the hospital’s lawyers and/or your Medical Director if you are in any doubt as to the patient’s capacity to refuse treatment, as it may be necessary to obtain an urgent court order to determine capacity.

1. e MB (Caesarean Section) (1997) EWCA Civ 1361.
2. e MB (Caesarean Section) (1997) EWCA Civ 1361.
3. e MB (Caesarean Section) (1997) EWCA Civ 1361.
4. St George’s Healthcare NHS Trust v S; R v Collins and others, ex parte S [1998] 3 All ER 673.
5. Royal College of Obstetricians and Gynaecologists, ‘Law and ethics in relation to court-authorised obstetric intervention’. Ethics Committee Guideline No. 1, RCOG, 2006 (current).
6. e MB (Caesarean Section) (1997) EWCA Civ 1361.
7. Re T (An Adult)(Consent to Medical Treatment) [1993] Fam 95 per Lord Donaldson MR.4. Re T (An Adult)(Consent to Medical Treatment) [1993] Fam 95 per Lord Donaldson MR.
8. e MB (Caesarean Section) (1997) EWCA Civ 1361.
9. 2016] NSWSC 624.
10. 4. Re T (An Adult)(Consent to Medical Treatment) [1993] Fam 95 per Lord Donaldson MR.4. Re T (An Adult)(Consent to Medical Treatment) [1993] Fam 95 per Lord Donaldson MR.