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practise answers for medical law
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- Medical Law
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- Nottingham Trent University (NTU)
practise answers for medical law seminar about pregnancy and abortion
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TUTORIAL QUESTIONS – INDICATIVE ANSWERSUnit 2 – Workshop
INTERVENTIONS IN PREGNANCY
This question will allow us to recap your knowledge from Unit 1 – in relation to the
fundamental principles of medical law – whilst also developing your knowledge of the
interventions in pregnancy case law from Unit 2.1.
Question 1
Jessica, aged 25, is admitted, already in labour, to the maternity unit at Bloomingdale
Hospital. The doctors there establish that her foetus is in a position of transverse lie and
that, unless an immediate caesarean section is carried out, her uterus will rupture with fatal
results for the foetus and also serious risks for Jessica’s life. When Jessica is told this, she
refuses the caesarean. She tells the team that she wrote a birthing plan with her midwife in
which she specifically stated that she would refuse medical interventions in the pregnancy.
Jessica has strong views that birthing is a natural process, and that vaginal delivery sparks
the bond between mother and child. She has not taken vitamins during her pregnancy, as
prescribed by her midwife and GP, because she believes that nutritional supplements are
just a way for the medical industry to profit from pregnancy.
Advise the hospital about the legal and ethical issues arising from this scenario.
Would it make a difference to your answer if Jessica was 15, and her parents strongly
support the medical team’s assessment that a caesarean section is required?
Indicative answer –
, Following Lord Donaldson’s famous dicta in Re T it was thought that a pregnant
woman did not have an absolute right to consent to or refuse treatment, seemingly
on the basis that her decision jeopardised the life of her unborn child. However, the
Court of Appeal subsequently made very clear in Re MB and St George’s NHS Trust v
S that this is not the position in English law; rather all patients have a right to refuse
treatment, provided that they have legal capacity to make this decision.
This means that, in principle at least, Jessica has a right to refuse treatment; and
going ahead with treatment against her wishes would expose the medical team to a
claim in the tort of battery and possible criminal charges for grievous bodily harm.
However, it may be possible to argue that Jessica does not, in fact, have legal
capacity to make this decision. Jessica would be presumed to have legal capacity
under s.1(2) MCA 2005 and the fact that her decision appears unwise is not reason
enough to find her incapacitated (s.1(4)). But, her capacity can be assessed under
ss.2 and 3 on the basis that her decision seems to be founded on misunderstandings
of information, namely that vitamins are a control mechanism of the medical
industry and that vaginal delivery creates the maternal instinct in respect of the new-
born. Nonetheless, Jessica must be found to suffer from an impairment or
disturbance in the functioning of the mind or brain (s.2(1)) which causes her to be
unable to understand information, retain that information, use or weigh that
information to come to a decision or communicate that decision (s.3(1)(a)-(d)). It is
not clear from the facts whether Jessica has any kind of mental illness or disorder; or
whether she is suffering from the effects of medications, illicit drugs or alcohol. Her
reasoning process seems unusual, but this by itself is not enough and we would want
to see evidence from an independent psychiatric consultant before deciding that she
has an impairment of her mental functioning. If this was diagnosed, then legitimate
concerns could be raised about her reasoning process, given that she appears to
have very rigid beliefs which could compromise her ability to weigh information (Re
E, Ms C). This is not straightforward however: the courts have recently recognised
that a patient’s beliefs systems need not be orthodox or mainstream; indeed,
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