law

The judges playing doctors and nurses

Why are family courts making medical decisions on behalf of clinicians and patients?

The recent case in the UK of an Italian woman compelled to undergo a court-ordered Caesarean section raises the question of why some medical problems are thought to require a judicial solution. Given that judges are not medically qualified, they seem badly placed to resolve issues of clinical management.

The present vogue for court-ordered medical treatment began with a case about sterilisation called F, which the House of Lords decided in 1989. It concerned a long-term mental patient described as ‘severely mentally handicapped’, who had struck up a relationship with another patient. That case unearthed a problem with the existing law: it did not provide any formal mechanism for decision-making in relation to the welfare of mentally disabled adults. 

Ordinarily, medical treatment without proper consent is an assault. And sexual intercourse with persons lacking the capacity to consent is unlawful. However, the authorities did not seem to think that chaperoning or other restrictions to prevent intercourse were practicable.

The House of Lords circumvented the legal problem by invoking a common-law doctrine of necessity, more usually used to justify emergency action in the context of salvaging ships, or stopping a fire from spreading by tearing down a building. Their reasoning was that mentally disabled people should not be deprived of necessary medical treatment simply because they could not consent to it. They approved the legal device of making a declaration that a proposed course of treatment was ‘lawful’ and in a disabled person’s ‘best interests’ (1). Nowadays, such decisions are made under the Mental Capacity Act 2005.

A legal industry has developed in obtaining judicial approval for a variety of operations on adults said to lack capacity, from blood transfusions to a bone-marrow transplant. One case in 1992 called T illustrates the somewhat erratic way in which this process can work in practice (2). T was pregnant and had been in a car crash. She needed a C-section. Her mother, an ardent Jehovah’s Witness, visited her in hospital. T then signed a form saying she did not want a blood transfusion. After the section, she deteriorated, and was placed on a ventilator. Doctors advised a blood transfusion. Her partner and her father argued that the form did not reflect T’s own beliefs, as T was no longer a practising Jehovah’s Witness.

Initially, a judge spoke with one of the doctors by telephone, who advised that T had been under the influence of a narcotic, and so was not fully compos mentis when she signed the form. The judge decided that T lacked capacity, so he ordered the transfusion. The next day, the doctor changed his mind! So the judge decided that T did have capacity to sign the form, after all. However, he concluded that the professionals, who thought the risk of her needing a transfusion was minimal, had misinformed her. So her refusal was not legally valid. T’s lawyer appealed.

Some weeks later, the Court of Appeal decided that it had been lawful to treat T, either because this was an emergency, or because T did not understand what she was doing, or because she was under her mother’s undue influence when she signed the form. They also suggested that, in cases of doubt about a patient’s refusal of treatment, doctors should apply to a court for guidance. This pits doctors against patients in an adversarial legal process.

The variety of judicial opinions in T does not really inspire confidence in a court as an effective decision-making mechanism. The doctor changed his mind about T’s capacity. The court seems to have thought that the professionals were at fault in failing to advise her of a risk, which at the time they genuinely believed was minimal. It is not obvious that the professionals were at fault, or that judges know more about the risks of a medical procedure than a qualified doctor.

Yet no one seems to have asked T what she made of all this, once she had recovered. What can be discerned is a judicial desire to validate the decision to intervene through any number of legal routes. It is interesting that these cases involving patients alleged to lack mental capacity come before family judges, whose mindset is generally paternalist and risk-averse.

The new jurisdiction made headlines in 1993, when the family of Tony Bland, a victim of the Hillsborough disaster, agreed with his doctors that continuing treatment was futile. Bland was in a vegetative state, with no prospect of recovery. His predicament was tragic. The House of Lords approved the withdrawal of life-saving treatment, noting that otherwise the doctors might be at risk of a complaint by a ‘pro-lifer’. They also noted that in the past, doctors were prepared to act according to their consciences in such matters (3).

One reason for applying to the civil courts is to obviate the risk of any future prosecution for murder or manslaughter. But strictly speaking, a declaration of lawfulness from the civil courts cannot prevent the criminal authorities from deciding to prosecute in a particular case. So what exactly is the magic in a judicial declaration? It seems to have become a way of allaying professional anxiety, and managing risk, even if the ‘risk’ is more imaginary than real. 

Applications for urgent medical treatment are rarely refused, unless it is an application made by a patient’s relative for ongoing treatment that a doctor has deemed futile. In cases where the use of force is authorised, there is rarely a discussion of just how much force is actually envisaged, and how this might damage the therapeutic relationship.

Occasionally, a patient makes her voice heard so forcefully, that the judge ends up agreeing with her: as in a recent case, where a bipolar mental patient was allowed to have an abortion, despite doctors’ reservations about her capacity (4).

In one case of which I have knowledge, a person in detention was on hunger strike, and became unconscious. Judicial approval was thought necessary even for the simple decision to call an ambulance to take the person to hospital. Yet it’s hard to see how calling 999 could expose anyone to the risk of prosecution, or a civil claim for damages. Somewhat ironically, when the person concerned later recovered consciousness, they struggled so much that, in the end, the hospital doctors (to their credit) deemed it unethical to proceed further. It is difficult to see what well-meaning judicial involvement contributed in this scenario, apart from expense and delay. What is striking is that doctors, left to their own judgment, were able to form a view about when intervention was unwarranted.

Previously, doctors would act according to their professional conscience in difficult situations. A famous example is the case of the gynaecologist Aleck Bourne, who performed an abortion for a 14-year-old victim of gang rape in 1938, and reported himself to the police. He was prosecuted for performing an unlawful termination, and acquitted (5). The application of community legal standards by means of a jury trial, in which witnesses are cross-examined in public, is arguably a more democratic way of holding people in positions of trust to account, if some serious wrong is alleged. 

Truncated hearings before judges sitting in private, with little or no oral evidence and argument, are a poor substitute for the exercise of professional judgment. The prospect of proceedings can also detract from the need for professionals to develop an effective working relationship with patients and their families. Involving the family courts only serves to infantilise everyone concerned.

Barbara Hewson is a barrister in London.

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Footnotes and references

(1) In re F [1990] 2 A.C. 1

(2) In re T [1993] Fam. 95

(3) Airedale NHS Trust v Bland [1993] A.C. 789

(4) Re SB [2013] EWHC 1417 (COP)

(5) R. v Bourne [1939] 1 K. B. 687