Medical Law Review, Vol. 22, No. 1, pp. 1–25 doi: 10.1093/medlaw/fwt021 Advance Access Publication: November 19, 2013
REFUSAL OF EMERGENCY CAESAREAN SECTION IN IRELAND: A RELATIONAL APPROACH KATHERINE WADE* Department of Children and Youth Affairs Research Scholar, Faculty of Law, University College Cork, Ireland [email protected]
* The author would like to thank Dr Claire Murray, University College Cork and the anonymous referees for their very helpful comments on the draft manuscript. Any errors or omissions remain mine alone.
A B S T R AC T Abstract. This article examines the issue of emergency caesarean section refusal. This raises complex legal and ethical issues surrounding autonomy, capacity, and the right to refuse treatment. In Ireland, the situation is complicated further by the constitutional right to life of the unborn. While cases involving caesarean section refusal have occurred in other jurisdictions, a case of this nature has yet to be reported in Ireland. This article examines possible ways in which the interaction of a woman’s right to refuse treatment and the right to life of the unborn could be approached in Ireland in the context of caesarean section refusal. The central argument of the article is that the liberal individualistic approach to autonomy evident in the caesarean section cases in England and Wales is difﬁcult to apply in the Irish context, due to the conﬂicting constitutional rights of the woman and foetus. Thus, alternative visions of autonomy which take the interests and rights of others into account in medical decision-making are examined. In particular, this article focuses on the concept of relational consent, as developed by Alasdair Maclean and examines how such an approach could be applied in the context of caesarean section refusal in Ireland. The article explains why this approach is particularly appropriate and identiﬁes mechanisms through which such a theory of consent could be applied. It is argued that this approach enhances a woman’s right to autonomy, while at the same time allows the right to life of the unborn to be defended. KEYWOR DS: Autonomy, Capacity, Consent, Refusal of caesarean section, Relational autonomy, Right to life of unborn
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I . I N T RO D U C T I O N Emergency caesarean sections are carried out during labour, where, due to medical complications, it is thought that natural delivery poses a risk to the foetus and/or woman.1 In a situation where a woman refuses this intervention, this raises complex legal and ethical issues surrounding autonomy, capacity, and the right to refuse treatment. In Ireland, while there is a constitutional right to refuse treatment, the situation is complicated by the right to life of the unborn, which is also protected in the Irish constitution. In the Irish context, a caesarean section refusal would result in a woman’s right to refuse treatment coming into direct conﬂict with the right to life of the foetus. This is difﬁcult to resolve. On the one hand, enforcing an unwanted caesarean section can be seen as seriously breaching her right to refuse treatment and violating her bodily integrity. On the other, if an emergency caesarean section were not carried out, this may lead to death or severe injury for her and/or the foetus. While a number of cases involving caesarean section refusal have arisen in other jurisdictions, a case of this nature has yet to occur in Ireland.2 There has also been a lack of engagement, to date, regarding the implications of the constitutional protection of the unborn in the context of caesarean section refusal, with the majority of the debate focusing on the issue of abortion. This article will investigate the core issues which would arise if a case involving a caesarean section refusal occurred in Ireland. This includes a discussion of the constitutional position in Ireland regarding autonomy and the right to refuse treatment, as well as the right to life of the unborn contained in Article 40.3.3° of the Constitution, and outlines possible ways in which the interaction of these rights could be approached in the context of caesarean section refusal. A central argument of the article is that the liberal individualistic approach evident in the caesarean section cases in England and Wales is difﬁcult to apply in the Irish context, due to the conﬂicting constitutional rights of the woman and foetus. Thus, alternative visions of autonomy which take the interests and rights of others into account in medical decision-making are examined. These theories may go some way towards ﬁnding a balance between respecting the woman’s right to refuse treatment and the right to life of the unborn in the context of caesarean section refusal. In particular, this article focuses on the concept of relational consent, as developed by Alasdair Maclean, and examines how such an approach could be applied in the context of caesarean section refusal. The article explains why this approach is particularly relevant for the Irish context and identiﬁes mechanisms through which such a theory could be applied. It will be argued that this approach enhances the protection of a woman’s 1
Caesarean section operations may also be elective in that they are carried out because natural birth poses a risk to the foetus and/or woman. Elective caesarean sections also include those requested by patients in situations where vaginal birth would also have been possible. Elective caesarean sections are not the focus of this article. The question of how an emergency caesarean section refusal would be addressed in this jurisdiction is important as the rate of caesarean sections is rising and thus it is perhaps more likely that a refusal case may arise in the near future. The caesarean section rate was 27% in 2011, compared with 21% in 2000. See F Ó Cionnaith, ‘One third of First-Time Mothers Give Birth by C-section’ Irish Times (31 May 2011) 6 and Economic and Social Research Institution, Perinatal Statistics Report (ESRI, Dublin 2012).
Refusal of Emergency Caesarean Section in Ireland • 3
autonomy, while at the same time allowing the right to life of the unborn to be defended and vindicated, as required under the Irish constitution. I I. A U TO NO MY A ND R E F U S A L OF CA E S A R E A N S E CT IO N I N E N G LA N D A ND WAL ES Generally, autonomy is understood as the right to make choices concerning one’s own life. It is seen as a central principle in medical law and ethics. Its importance is based on the notion that, while a physician may be able to ascertain the best clinical choice for patients, the latter is usually best placed to make the choice which ﬁts with her values and idea of a good life.3 There are various perspectives on the concept of autonomy.4 Healthcare law is inﬂuenced by the liberal vision of autonomy as proposed by John Stuart Mill.5 In Mill’s view, ‘the only purpose for which power can be rightfully exercised over any member of a civilised society, against his will, is to prevent harm to others. The individual’s own good, either physical or moral, is not a sufﬁcient warrant’.6 Mill, however, recognises that the duty to respect autonomy is not absolute and that a person may be prevented from violating ‘a distinct and assignable obligation’ to others.7 Nonetheless, he concedes that if a conﬂict arises between autonomy and other values, autonomy must be afforded primary status.8 This, in his view, is the only means by which individual sovereignty is preserved. This view of autonomy is individualistic, as it is based on the notion of non-interference.9 Jennings notes that the Millian theory of autonomy can be more accurately described as a theory of ‘liberty’, as developed further by Isaiah Berlin through the concept of ‘autonomy as negative liberty’.10 With this concept of autonomy, the focus is on liberty, understood in a negative sense, since it places emphasis on ‘warding off interference’.11 Berlin distinguished this from positive liberty, which stresses the use of reason in order to exercise control of one’s self.12 Other forms of autonomy put more emphasis on the latter idea. For example, Kantian autonomy emphasises obedience to self-imposed law or categorical imperatives as discerned by the exercise of reason.13 3 4
5 6 7 8 9 10 11 12 13
JW Berg and others, Informed Consent: Legal Theory and Clinical Practice (2nd edn Oxford University Press, New York 2001) 18–9. There are, for example, liberal, communitarian, feminist, and relational perceptions of autonomy. A detailed explanation of these different accounts is outside the scope of this article. However, see M Donnelly, Healthcare, Decision-Making and the Law: Autonomy, Capacity and the Limits of Liberalism (Cambridge University Press, Cambridge 2010) 16–48. See also R Scott, Rights, Duties and the Body: Law and Ethics of Maternal-Fetal Conﬂict (Hart Publishing, Portland 2002) 7–15 for a discussion of theorists such as Kant, Dworkin, Rawls, Berlin, and Raz. Donnelly, above, n 4, 19. See also O O’Neill, Autonomy and Trust in Bioethics (Cambridge University Press, Cambridge 2002) 29–34. JS Mill, On Liberty (London, 1859) in J Grey (ed.), On Liberty and Other Essays (Oxford University Press, Oxford 1991) 14 [hereinafter Mill]. Ibid at 90. Donnelly, above, n 4, 21. Donnelly, above, n 4, 16. B Jennings, ‘Autonomy’ in B Steinbock (ed.), The Oxford Handbook of Bioethics (Oxford University Press, Oxford 2007) 73. Ibid 85, citing I Berlin, ‘Two Concepts of Liberty’ in I. Berlin (ed.), Four Essays on Liberty (Oxford University Press, New York 1993) 127. Ibid. Jennings, above, n 10, 85.
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This theory of autonomy is objective, in the sense that reason and the moral law on which it is based are objective and universal.14 However, for Mill, reason is subjective. As Jennings explains: On this account of autonomy there is no independent standard or moral knowledge to determine if one use of freedom is inherently superior to another; the individual should decide as a matter of right, and if individuals are permitted by social and political arrangements to have this liberty, the society will prosper and the arrangement will be justiﬁed from a utilitarian point of view.15 However, it is the individualistic and subjective approach as espoused by Mill which is reﬂected in the law on consent. For example, a competent person’s consent must be attained for any medical intervention and a person cannot be compelled to accept a treatment which is considered to be in their best interests. For example, in Re T (Adult: Refusal of Medical Treatment),16 Lord Donaldson MR stated: An adult patient who . . . suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment . . . This right of choice is not limited to decisions which others might regard as sensible. It exists not withstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.17 Furthermore, his Lordship stated that this right exists ‘even if a refusal may risk permanent injury to his health or even lead to his death’.18 This liberal approach to autonomy is evident in most of the caesarean section cases in England and Wales. However, the ﬁrst case involving a caesarean section refusal did not reﬂect this approach. In Re S,19 a health authority applied to the High Court for a declaration to authorise an enforced caesarean section. The patient was a Born-Again Christian and refused the intervention on religious grounds. The surgeon believed that both patient and foetus would die if a caesarean section were not carried out.20 The woman’s competence was not in doubt. After an ex parte hearing, Sir Stephen Brown P granted the declaration, holding that an enforced caesarean section was permissible as it was in the vital interests of the patient and the unborn child. He relied on the fact that in Re T Lord Donaldson MR noted one exception to the right to refuse treatment, i.e.
14 15 16 17 18
Ibid 83. Ibid. Re T (Adult: Refusal of Treatment)  4 All ER 649. Ibid 653. See also Sidaway v Board of Governors of the Bethlem Royal Hospital  1 AC 871. Re T (Adult: Refusal of Treatment)  4 All ER 649, 664. This was upheld in Airedale NHS Trust v Bland  1 All ER 821, 864; Frenchay Healthcare NHS Trust v S  2 All ER 403; Re C (Adult: Refusal of Medical Treatment)  1 All ER 819; Secretary of State for the Home Department v Robb  2 WLR 722 and Re B (Adult: Refusal of Medical Treatment)  MHLR 411. Re S (Adult: Refusal of Treatment)  4 All ER 671. Ibid 642.
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when the choice ‘may lead to the death of a viable foetus’.21 He concluded that this case fell within this exception.22 However, this judgment was heavily criticised. For example, Thomson argues that the judgment ‘runs counter to accepted principles of law’.23 The treatment was imposed as it was in the patient’s best interests, i.e. in order to save her life. However, the law in England and Wales is clear that treatment cannot be imposed on a competent patient because it is in her best interests.24 The decision also conﬂicted with earlier cases, which state that the foetus does not have a legal personality until it is born.25 In this regard, Francis notes that the circumstances of the case did not lend itself to reasoned jurisprudence.26 It was conducted in the context of extreme emergency, without any representation on the woman’s behalf and on the basis of rudimentary evidence.27 Indeed, while the case is now considered to have been wrongly decided,28 it illustrates the difﬁculties which arise in applying a liberal approach to autonomy, while at the same time taking the interests of the unborn into account. The discourse of liberal autonomy does not accommodate a situation in which a person’s right to refuse treatment comes into conﬂict with the rights and interests of others. In light of these difﬁculties, it was made clear in subsequent cases that a woman had the right to refuse a caesarean section, regardless of the consequences for her or her foetus. For example, in Re MB 29 the Court of Appeal held that ‘[t]reatment can be refused, for religious reasons, other reasons, rational or irrational reasons or for no reason at all, regardless of consequences’.30 The Court ﬁrmly refuted the view that the foetus has interests which should be balanced against a woman’s right to refuse treatment. Relying on Paton v BPAS Trustees,31 C v S,32 and Re F(in utero),33 Lady ButlerSloss held that ‘[t]he foetus, up to the moment of birth, does not have any separate 21 22
25 26 27 28 29 30 31
Re T (Adult: Refusal of Treatment)  4 All ER 649, 653. His Lordship also referred to the US decision of In re AC 573 A 2d 1235 (DC, 1990). The reliance on the case was said to be erroneous as the order for a caesarean section was reversed on appeal. See M Thomson, ‘After Re S’ (1994) 2 (2) Med L Rev 127, 128. Ibid. Ibid 129. See Re T (Adult: Refusal of Treatment)  4 All ER 649 at 664; Airedale NHS Trust v Bland  1 All ER 821 at 864; Frenchay Healthcare NHS Trust v S  2 All ER 403; Re C (Adult: Refusal of Medical Treatment)  1 All ER 819; Secretary of State for the Home Department v Robb  2 WLR 722; Re B (Adult: Refusal of Medical Treatment)  MHLR 411. Thomson, above, n 22, 130. R Francis, ‘Compulsory Caesarean Sections: An English Perspective’ (1997–1998) 14 J Contemp Health L & Pol’y 365, 372. Ibid 376. E Jackson, Regulating Reproduction: Law, Technology and Autonomy (Hart Publishing, Portland 2007) 134. Re MB (An Adult: Medical Treatment)  2 FLR 426. MB initially consented to a caesarean section, but later withdrew her consent due to needle phobia. Ibid, 436–7. Paton v British Pregnancy Advisory Service Trustees  QB 276. George Baker P. stated: ‘the foetus cannot in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother’. C v S  QB 135. Relying on Paton, it was held that a man could not prevent his girlfriend from having an abortion. Re F (in utero)  Fam 122. It was held that there was no jurisdiction to make an unborn child a ward of court.
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interests capable of being taken into account when a court has to consider an application for a declaration in respect of a Caesarean section’.34 The same approach was evident in St George’s Healthcare NHS Trust v S, 35 where the Court of Appeal overturned a declaration authorising an enforced caesarean section on a competent woman who refused the intervention because she wanted to give birth naturally. Lord Reid concluded that a pregnant woman ‘is entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depends on it. Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant’.36 The law is clear that a competent pregnant woman has the same right to refuse treatment as any non-pregnant woman, since the foetus has no separate interests until it is born and becomes a legal person.37 However, these cases also revealed the difﬁculties of applying a liberal conception of autonomy in this context. For example, the right to refuse treatment as set out in Re MB and St George’s was not upheld in practice. In none of the reported cases was a woman permitted to refuse a caesarean section. In most cases, the woman was found to lack capacity. While some of these ﬁndings were not contested,38 it was argued that in some cases there was a lack of evidence to indicate that the woman was incompetent.39 For example, in Rochdale Healthcare (NHS) Trust v C,40 a woman refused the intervention because of back pain and pain around the scar she experienced following a previous caesarean section. Notwithstanding the fact that the consultant obstetrician believed her to be competent, it was held that she lacked capacity because she was incapable of comprehending, weighing up, and retaining the information she had been given, particularly as she was in the ‘throes of labour with all that is involved in terms of pain and emotional stress’.41 However, as Herring notes, since almost any labour involves stress and pain, this could mean that every woman in labour can be found incompetent.42 The ﬁnding of incapacity in the case of Tameside and Glossop Acute Services Trust v CH 43 was also particularly contentious. In this case, a woman refused a caesarean section. Wall J held that she was incompetent and thus the caesarean section could be 34 35 36 37 38
39 40 41 42
Re MB (An Adult: Medical Treatment)  2 FLR 426, 444. St. George’s Healthcare NHS Trust v S  3 All ER 673. St. George’s Healthcare NHS Trust v S  3 All ER 673, 691. The declaration was granted after the caesarean section had been carried out. Scott, above, n 4, 128. See Norfolk and Norwich Healthcare NHS Trust v W  2 FLR 6 ( patient denied she was pregnant); Re L (5 December 1996, unreported), Fam Division (needle-phobia); Re MB (An Adult: Medical Treatment)  2 FLR 426 (needle-phobia) and Bolton Hospitals NHS Trust v O  EWHC 2871 ( posttraumatic stress disorder from previous caesarean sections). Francis, above, n 26, 380. Rochdale Healthcare (NHS) Trust v C  1 FCR 274. Ibid 275. For similar reasoning, see Norfolk and Norwich Healthcare (NHS) Trust v W  2 FLR 613. J Herring, Medical Law and Ethics (4th edn Oxford University Press, Oxford 2012) 345. For a feminist critique, see Jackson, who argues that these judgments assume that women should have a ‘natural impulse towards self-sacriﬁcing behaviour’. Jackson, above, n 28, 139. Tameside and Glossop Acute Services v CH  1 FLR 762. See S Bewley, ‘Bad Medicine and Bad Law’ (1997) 314 BMJ 1184 and W Goldthorp, ‘Debate over Mentally Ill Patient’s Caesarean Section was too Emotional’ (1997) 315 BMJ 1017. For a feminist critique, see C Widdett and M Thomson, ‘Justifying Treatment and Other Stories’  5 (1) Fem L S 77.
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carried out as it was in her best interests. Bartlett and Sandland argue, however, that the woman’s actions do not necessarily indicate inability to understand information.44 When the possibility of a caesarean section was raised, she objected, stating that she wished to continue on a course of antibiotics for a week in order to help the development of the foetus.45 The statement from the ofﬁcial solicitor’s agent indicated that the antibiotics had assisted such development.46 Furthermore, the woman reiterated in an interview with the solicitor’s agent that, should a caesarean section become necessary, she would consent.47 Bartlett and Sandland question how a ﬁnding of incapacity could be reached from this evidence, as the woman appeared to understand the information given to her.48 These cases illustrate the limits of the discourse of liberal autonomy. While there are strong judicial pronouncements supporting a liberal approach, there appears to be judicial reluctance to allow women to make decisions which may endanger them and/or their foetus in this context.49 As Harrington notes, ‘. . . the right to refuse, conceded in such high terms as a matter of ﬁrst principle, is frequently undermined by courts’ use of available Common law resources in determining capacity’.50 I II . CA ESAR EAN S E CT IO N RE FUSAL I N I RE LAN D : T HE R IG H T TO R E F U S E T R E AT M E N T A N D T HE R I G H T TO L I F E O F T H E U N B O R N Autonomy was recognised in Ireland as an unenumerated constitutional right in Re a Ward of Court 51 wherein the Supreme Court held that the requirement of consent to medical treatment is an aspect of a person’s right to bodily integrity under Article 40.3 of the Constitution.52 Denham J conﬁrmed that the principle of informed consent is based on the concept of autonomy and stated:
44 45 46 47 48
50 51 52
P Bartlett and R Sandland, Mental Health Law: Policy and Practice, (3rd edn Oxford University Press, Oxford 2007) 524. Ibid 766. Ibid 760. Ibid. Ibid 524. See also St. George’s Healthcare NHS Trust v S  3 ALL ER 673. In this case, the woman was told that without a caesarean section, her life and the life of her foetus was in danger. She understood the risks but refused the advice as she wanted her baby to be born naturally. She was compulsorily admitted under s 2 of the Mental Health Act 1983. A court declaration was obtained for an enforced caesarean section. Two days later S’s detention under the Mental Health Act was terminated and no speciﬁc treatment for a mental disorder was administered during this detention. For a criticism of this case, see A Morris, ‘Once Upon a Time in a Hospital. . .The Cautionary Tale of St. George’s Healthcare NHS Trust v. S, R v. Collins and Others Ex Parte S  3 All ER 673’ (1999) 7 (1) Fem L S 75. See Thorpe LJ, ‘The Caesarean Section Debate’ (1997) Fam L 663, wherein he states: ‘It is, perhaps, easier for an appellate court to discern principle than it is for a trial court to apply it in the face of judicial instinct, training and emotion. Applications in Caesarean cases are conﬁned to judges of the Family Division. Those judges are dedicated to upholding child welfare. It is simply unrealistic to suppose that the preservation of each life will not be a matter of equal concern to the Family Division judge surveying the medical dilemma . . . Unless the recognition of this consideration is legitimated there is an obvious risk of strained reasoning, increased litigation . . . and stress in interdisciplinary co-operation’. JA Harrington, ‘Privileging the Medical Norm: Liberalism, Self-Determination and Refusal of Treatment’ (1996) 16 Leg Stud 348, 358. In Re a Ward of Court (No 2)  2 IR 79. Ibid 156, per Denham J.
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Medical treatment may not be given to an adult person of full capacity without his or her consent . . . If medical treatment is given without consent it may be a trespass against the person in civil law, a battery in criminal law and a breach of the individual’s constitutional rights.53 It was also held that ‘there is an absolute right in a competent person to refuse medical treatment even if it leads to death’.54 However, Donnelly notes that in Re a Ward of Court, there was little discussion of what autonomy meant and how it should be protected.55 She states that the issue of the interaction of autonomy with other rights and principles mentioned, such as the right to life, the right to die, the right to bodily integrity and the sanctity of life, was not examined.56 This lack of clarity becomes particularly acute when a person’s right to refuse treatment is juxtaposed against the right to life of the unborn. The constitutional protection of the right to life of the unborn is contained in Article 40.3.3° of the Constitution which states:57 The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. The main interpretation of Article 40.3.3° is provided in the 1992 case of Attorney General v X 58 which involved a 14-year-old girl who became pregnant as a result of rape. In this case, the Supreme Court deﬁned the circumstances in which an abortion is lawful in Ireland. Finlay CJ held: [I]f it can be established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible.59
55 56 57
Ibid. In Re a Ward of Court (No 2)  2 IR 79, 129. This was upheld in JM v Board of Management of St Vincent’s Hospital  1 IR 321 and Fitzpatrick and Another v K and Another  2 IR 7 which both involved the refusal of blood transfusions. M Donnelly, ‘The Right to Autonomy in Irish Law’ (2008) 14 (2) MLJI 34, 35. Ibid. Article 40.3.3° was inserted into the Irish Constitution, due to fears that the criminal prohibition of abortion in s 58 Offences Against the State Act 1861 did not adequately protect the right to life of the unborn. It was thought that the decision in McGee v Attorney General  IR 284 which recognised a right to marital privacy may lead to s 58 being struck down as unconstitutional. This was because a similar case to McGee in the US (Griswold v Connecticut 381 US 479 (1965)) was the basis for the majority decision in Roe v Wade 410 US 113 (1973) in which a constitutional right to abortion was recognised. Attorney General v X  1 IR 1. See also A and B v Eastern Health Board  1 ILRM 460 and D v HSE, 9 May 2007 (HC). Attorney General v X  1 IR 1, 53–4, per Finlay CJ.
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A risk to a woman’s life caused by the threat of suicide satisﬁes this test.60 The X case provides a judicial interpretation of Article 40.3.3° in the context of abortion. It does not give any guidance as to how a woman’s right to refuse treatment and the right to life of the unborn would be reconciled in the case of a caesarean section refusal.61 The question which arises relates to the applicability of Article 40.3.3° in the context of caesarean section refusal. It is submitted that the constitutional protection would be applicable. As Sherlock notes, the provision is not a negative prohibition on abortion but a positive afﬁrmation of the right to life of the unborn and, thus, the provision could be applicable in the enhancement of the rights of the foetus in ways other than limiting the circumstances in which an abortion can be carried out.62 This approach is evident in G v An Bord Uchtála, 63 wherein Walsh J stated: [A child] has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth . . . The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life . . .64 Similarly, the obiter comment of Geoghegan J in A and B v Eastern Health Board 65 also seems to point to a broad application of Article 40.3.3°. He stated that Article 40.3.3° ‘quite clearly not merely prohibits abortion but gives a positive right to life of the unborn, subject only to the exception where the mother’s life is endangered’.66 On the other hand, there have been recent references in Irish case law to the fact that the intention behind Article 40.3.3° was to prevent the legalisation of abortion and that the provision is not applicable in other scenarios in which the right to life of the unborn might be threatened. For example, in Baby O v Minister for Justice, 67 the Supreme Court held that the protection of the right to life of her unborn child under Article 40.3.3° did not prevent the deportation of a pregnant woman to a country which had a higher child mortality rate. However, a caesarean section refusal is a different issue. It involves a refusal to accept an intervention which is indicated to be in the best interests of the foetus. The steps which must be taken to defend the right to life of the foetus in the context of a caesarean section refusal could be argued to be more practicable. In addition, a refusal of caesarean section poses immediate and identiﬁable risks to the foetus. Thus, it could be argued the state’s mandate to protect its 60
62 63 64 65 66 67
It was held that the conditions of the test were satisﬁed, as the defendants had established, as a matter of probability, that there was a real and substantial risk to X by self-destruction, avoidable only by termination of pregnancy. Attorney General v X  1 IR 1, 76. The implications of Art 40.3.3° in the case of caesarean section were not discussed during the drafting of Art 40.3.3° or the X case. See S McAvoy, ‘From Anti-Amendment Campaigns to Demanding Justice: The Changing Landscape of Abortion Rights Activism in Ireland, 1983–2008’ in J Schweppe (ed.), The Unborn Child, Article 40.3.3° and Abortion in Ireland: Twenty-Five Years of Protection? (Liffey Press, Dublin 2008) 15–45 and A Rynne, Abortion: The Irish Question (Ward River Press, Dublin 1982). A Sherlock, ‘The Right to Life of the Unborn and the Irish Constitution’ (1989) 24 (1) Ir Jur 13, 16.  IR 32. Ibid 69. A and B v Eastern Health Board  1 IR 464. Ibid 482.  2 IR 169.
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life is stronger than in the case of deportation to a country where child mortality is higher. More recently, in Roche v Roche,68 which focused on the applicability of Article 40.3.3° to frozen embryos, it was stated that the Eighth Amendment was inserted into the Constitution in order to prohibit abortions. It was held that a consideration of the intention of People would suggest that the pre-implantation embryo was not covered by the provision.69 However, the case does not deal with the extent of the protection afforded by Article 40.3.3° in the context of alternative threats to foetal life which can arise after implantation. Thus, the issue remains open as to the applicability of Article 40.3.3° in the context of caesarean section refusal. However, in examining the manner in which Article 40.3.3° might apply in a case of caesarean section refusal, the lack of clarity around 40.3.3° makes it difﬁcult to assess its potential effect. While it was held in X that an abortion is permissible in Ireland, if there is a substantial risk to a woman’s life, there is no guidance regarding the distinction between life and health in this context.70 It is clear that there must be a risk to a woman’s life, in order to justify the subordination of the right to life of the unborn. However, it is unknown what level of risk to a woman’s life is required. The uncertainty around the meaning of the right to life of the woman also makes it difﬁcult to ascertain what the outcome might be in a case where a woman’s quality or longevity of life might be affected as a result of a caesarean section.71 For example, this operation can result in health complications, such as infection, respiratory problems, reactions to anaesthesia, and painful scars.72 As noted in the Rochdale case, a woman refused a caesarean section due to back pain and painful scars which can result from a caesarean section. If one were to apply the reasoning in X to a case of this nature, namely that only a threat to the life of the mother could result in the subordination of the right to life of the foetus, it would be difﬁcult to argue that a woman could refuse a caesarean section on the grounds that her quality of life or health would be threatened. However, since there is no legal guidance regarding the scope of the ‘equal right to life of the mother’, the position in Ireland remains unclear.73 The meaning and scope of the right to life of the unborn is also uncertain. The guidance in X is difﬁcult to apply. A caesarean section refusal is distinct from an 68 69 70
71 72 73
 2 ILRM 1. Ibid 15. In England and Wales, in the case of R v Bourne  3 All ER 615, Macnaghten J stated that he did not think a clear distinction could be drawn between the life and health and held abortions were permissible under the Offences against the Person Act 1861 if the doctor considers that the ‘probable consequence of the pregnancy will be to make the woman a physical or mental wreck . . .’. Sherlock, above, n 62, 27. See further M Wagner, ‘Choosing Caesarean Section’ (2000) 356 (9242) Lancet 1677. Following the death of Savita Halappanavar in November 2012, there was debate regarding the uncertainty in Irish law. See A Sheikh, ‘Medico-Legal Aspects of the Savita Halappanavar Case’ (2005) 11 (2) MLJI 1. At the same time, the Expert Group on the Judgment in A, B and C v Ireland published its Report suggesting options for a governing framework for permissible abortions in Ireland. This was commissioned by the government after the ECHR case of A, B and C v Ireland (2010) ECHR 2032, where the ECtHR held that the lack of clarity in Irish law surrounding the circumstances in which an abortion is permissible was a breach of Art 8 ECHR. Available at . Following this, a Joint Committee on Health and Children held public hearings on the implementation of a legal framework on foot of the Expert Group Report. Transcripts of the hearing are available here: . On 1 May 2013, the General Scheme of the Protection of Life during Pregnancy Bill 2013 was published. Available at . There have been cases where the foetus has survived an attempted abortion. See Renaerts (Guardian ad litem of ) v Korn  BCJ No 3223. For a critique of the X case on these grounds, see R Fletcher, ‘Reproductive Justice and Article 40.3.3°’ in J Schweppe, above, n 61, 322–37. D Madden, Medicine, Ethics and the Law (Bloomsbury Professional, Dublin 2011) 421. See also A Sheikh and D Cusack, ‘Maternal Brain Death, Pregnancy and the Foetus: The Medico-legal Implications’ (2001) 7 (2) MLJI 75, 78. Attorney General v X  1 IR 1, 72.
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section would take precedence over the right to life of the unborn.78 Referring to the case of Fitzpatrick and Another v K and Another 79 where it was held that a competent woman could not be compelled to receive a blood transfusion against her wishes, Madden argues that the courts seem reluctant to override a person’s medical choices on the basis of her best interests and thus may be unlikely to override a woman’s refusal to submit to a caesarean section, particularly if it could be shown to present a serious risk to her life.80 On the other hand, there is also jurisprudence which may indicate that a woman’s right to refuse a caesarean section could be subordinated to the right to life of the unborn. In the X case, Finlay CJ and Egan J approached the issue of conﬂicting rights by establishing a hierarchy of rights and decided that, in relation to the right to travel to procure an abortion, the right to life of the unborn must take precedence.81 Donnelly notes that if the woman’s right to autonomy were accorded the same status as the right to travel, the right to autonomy could also be subordinated to the right to life of the unborn.82 Interestingly, an Irish case in 2002 called South Western Area Health Board v K and Anor 83 seemed to indicate that a woman’s autonomy could be subordinated to the interests of her foetus. In this case, a woman refused to undergo treatment which would reduce the risk of transmitting HIV to her foetus. Finnegan P advised the woman that if she refused to give birth in a hospital, he would have to make ‘much more serious orders affecting her bodily integrity’.84 As Casey notes, it is not known whether such orders could mean forced conﬁnement, twenty-four hour supervision, or the forced administration of medicine, as further details were not given.85 However, whether a caesarean section, as opposed to forced supervision or administration of medicine, could be imposed to safeguard the right to life of the unborn is open to question. For example, Hogan and Whyte note that Article 40.3.3° provides that the State must guarantee in its laws to defend and vindicate the right to life of the unborn as far as practicable and state that ‘. . . it is possible that in some situations forced medical intervention may not be practicable’.86 Indeed, a caesarean section is an invasive operation which carries some risk to the woman. In this regard, statements made by Denham J in Re a Ward of Court regarding privacy and dignity may be relevant. Citing the US case of In Re Quinlan,87 she noted that ‘. . . the individual’s right to privacy grows as the degree of invasion increases . . .’88 Denham J
78 79 80 81 82 83
84 85 86 87 88
Madden, above, n 76, 442.  2 IR 7. Madden, above, n 76, 424. See judgments of Finlay CJ, Hederman J, and Egan J. However, McCarthy J and O’Flaherty J disagreed. Donnelly, above, n 55, 37. South Western Health Board v K and Anor, High Court, ex tempore, P Finnegan, 19 July 2002 (no written judgment available at the time of writing). See F Broughton, ‘An Invisible Judgment for Invisible Children? What the High Court Decision in HSE v F (2010) says about Health Care Rights for Pre-Natal Children’ (2012) 18(1) MLJI 76. Irish Times (20 July 2001). See G Casey, ‘Pregnant Woman and Unborn Child: Legal Adversaries’ (2002) 8(2) MLJI 75, 75. Ibid. GW Hogan and GF Whyte, The Irish Constitution (4th edn Tottel, Dublin 2003) 1523. In re Quinlan (1976) 355 A. 2d. 647. In re a Ward of Court (No 2)  2 IR 79, 163.
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also stated ‘. . . the dignity of a person is progressively diminished by increasingly invasive medicine’.89 This reasoning could be applicable to the issue of enforced caesarean section. Since a caesarean section is an invasive procedure, the woman’s right to privacy could be seen as assuming greater importance in this context. Since autonomy was held to be an aspect of privacy in Re a Ward of Court,90 it could be argued that her right to refuse treatment is strongly protected in the case of particularly invasive procedures. This reasoning is in accord with jurisprudence of the ECtHR. In A, B and C v Ireland, it was stated that it is ‘legitimate for a State to choose to consider the unborn to be such a person and to aim to protect that right’.91 However, it was held that the Court must ensure that the interference involved in protecting that right (in this case, restrictions on abortion) ‘constitutes a proportionate balancing of the competing interests’.92 It is questionable whether an enforced caesarean section would be a proportionate response in balancing the interests of the State in preserving pre-natal life, on the one hand, and the woman’s right to privacy and family life under Article 893 as well as the right not to be subjected to inhumane or degrading treatment under Article 3, on the other.94 It could be argued that an enforced caesarean section is not ‘proportionate’ in this regard as it is an invasive surgical procedure which can carry risks for the woman. In relation to further Irish guidance on the matter, the case HSE v F 95 in 2010 appears to indicate that a refusal of caesarean section should be upheld. In this case, a pregnant woman refused to consent to the administration of drugs to her baby on birth, which was medically advised in order to reduce the risk of transmission of HIV. She also refused a caesarean section on the day that was medically advised, but agreed to have it four days later. In the interim, she wanted the Court to determine whether it was in the child’s best interests to be treated with the drugs. The HSE secured a High Court order allowing a doctor to administer the drugs to the baby. However, it was reported that ‘Justice George Birmingham had earlier stated that she could not be forced to have a caesarean section and said no order could be made requiring her to undergo such a procedure’.96 However, since no further details on the case are available, it is unknown how such a conclusion was reached and how the constitutional 89 90 91 92 93
Ibid. See the judgments of Denham J and Hamilton CJ in In re a Ward of Court (No 2)  2 IR 79, 125 and 163. A, B and C v Ireland (2010) ECHR 2032 at para . Ibid at para . In Pretty v United Kingdom  ECHR 2346/02, the ECtHR stated that ‘the notion of personal autonomy is an important principle underlying the interpretation of its guarantees’ and that treatment without consent ‘would quite clearly interfere with a person’s physical integrity in a manner capable of engaging the rights protected under art 8(1) of the Convention’. Pretty v United Kingdom  ECHR 2346/02 at para . See also X and Y v Netherlands (1986) 8 EHRR 235; X v Austria (1980) 18 DR 154 and Glass v United Kingdom (2004) 39 EHRR 341. See Wicks, who discusses how Art 3 could apply to the right not to be subjected to degrading medical treatment, referring to Herczegfalgy v Austria (1993) 15 EHRR 437. E Wicks, ‘The Right to Refuse Treatment Under the European Court of Human Rights’ (2001) 9 (1) Med L Rev 17, 21–4. Health Service Executive v F, High Court, ex tempore, Birmingham J, 20 November 2010 (no written judgment available at the time of writing). J Mooney, ‘Court: Baby Must Have HIV Drugs’, Sunday Times (21 November 2010) 8.
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rights of the woman and the unborn are to be balanced in a case of caesarean section refusal. No further guidance was given in a recent case in March 2013, wherein it was reported that a hospital made an emergency application to carry out a caesarean section on a woman who refused the intervention, as she wanted the baby to be born naturally.97 The Court was told that the baby could die or have severe brain damage and the mother would be at serious risk of haemorrhage if the procedure were not carried out. However, when the case was called, the woman reconsidered and consented to the procedure. It was reported that ‘Judge Hedigan said that if it is not necessary, then it is appropriate that no court order is made’.98 Thus, the matter of caesarean section refusal was not addressed. In the two Irish cases involving caesarean section refusal, the women eventually agreed to the procedure. Therefore, the Court has not had to engage in an in-depth analysis of the scope, meaning, and interaction of the constitutional rights at issue. It is difﬁcult to assess a likely outcome regarding caesarean section refusal in Ireland based on the current law, due to uncertainties surrounding autonomy and the right to life of the unborn, as well as a lack of guidance in relation to their interaction. It is submitted that the approach in England and Wales is of limited guidance as to how Irish courts might proceed. This is because the right to refuse treatment is not absolute in the Irish context, as it is curtailed by a competing right, namely the right to life of the unborn, which the State is mandated to defend and vindicate under the Constitution. It is not particularly likely that Ireland would develop along the lines of the jurisprudence in England and Wales. Pro-life sentiment was very strong during the debate surrounding the Eighth Amendment and the X case99 and continues to have public and political support, as evidenced in the current debate surrounding the development of legislation for permissible abortions in Ireland.100 Thus, it is useful at this point to examine alternative theories of autonomy, in order to ascertain whether a different approach could contribute to addressing the complex legal and ethical challenges which arises in the context of caesarean section refusal in Ireland. V. A N A LT E R N ATI V E A P P ROAC H TO L I B E R A L A U TO N O M Y
A. Relational Autonomy and Moral Responsibilities Alternative conceptions of autonomy have developed with a view to challenging the perceived primacy of autonomy in medical law and ethics. One trend in this area is the development of relational approaches to autonomy. These approaches are based on the idea that individualistic conceptions of autonomy do not recognise the reality of human existence which involves social embeddedness and interdependence of
J Reilly, ‘Hospital Sought Court Order to Force Mother to have C-Section’, Irish Independent (10 March 2013). 98 Ibid. 99 For an account of pro-life sentiment in public and political spheres at the time, see M Solomons, Pro Life? The Irish Question (Lilliput Press, Dublin 1992). 100 See ‘Delegates afﬁrm Fianna Fáil status as ‘pro-life’ party’, Irish Times (27 April 2013); R Mac Cormaic, ‘Abortion ‘Suicide Test’ Hurdle Still to be Overcome’, Irish Times (24 April 2013); H McGee and others, ‘Tensions on abortion law escalate at Fine Gael Meeting’, Irish Times (25 April 2013). 97
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individuals.101 Relational theorists reject the idea that patients are isolated unconnected individuals making treatment decisions solely for themselves, and recognise that people live their lives based on interdependent relationships.102 Relational critiques do not repudiate the value of autonomy itself, but rather argue for its reconceptualisation. Relational theorists base this reformulation on a sense of agency which is both conditioned by and constitutive of one’s relationships with others. Maclean argues that autonomy is undermined if people are viewed as isolated atomistic existences, since it is only through and by relationships that a person can fully develop and express their autonomy.103 In the medical context, this approach differs from the traditional liberal approach, which embraces the concept of the ‘isolated patient deciding for himself what is in his best interests’,104 and recognises that patient’s decisions are inﬂuenced by the relationships they have with others and the feelings of love and obligation they have towards others.105 Thus, in a relational approach, the impact of a patient’s healthcare decisions on those with whom she has a relationship should also be considered.106 Good decision-making should be based on the patient’s goals and values as well as their obligations to others, including spouses and children.107 For example, Callahan argues that ‘[a]utonomy as a moral principle ought to encompass not simply our right to make our choices whenever possible, but also lead us to take seriously the ethical implications of the different choices open to us, whether in our public or private lives’.108 Furthermore, he contends that choices which have the potential to cause grievous suffering to others, such as a refusal of life-saving treatment, are not merely private decisions but have an important community dimension and thus should be open to outside moral judgment and critique.109 Similarly, 101 See, for example, M Sandel, Liberalism and the Limits of Justice (Cambridge University Press, Cambridge 1982); W Gaylin and B Jennings, The Perversion of Autonomy: Coercion and Constraint in a Liberal Society (Georgetown University Press, Washington, D.C. 2003); J Christman, ‘Relational Autonomy, Liberal Individualism, and the Social Construction of Selves’ (2004) 117 Philos Stud 143. 102 J Herring, above, n 42, 196. See further J Herring, Relational Autonomy, unpublished manuscript, 2007 as cited in C Foster, Choosing Life, Choosing Death, The Tyranny of Autonomy in Medical Ethics and Law (Hart, Portland 2009) 14. 103 A Maclean, Autonomy, Consent and Medical Law: A Relational Challenge (Cambridge University Press, Cambridge 2009) 18. 104 Herring, above, n 42, 202. 105 S Dodds, ‘Choice and Control in Feminist Bioethics’ in C Mackenzie and N Stoljar (eds), Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the Social Self (Oxford University Press, Oxford 2000) as cited by Herring, above, n 42, 203. Feminist theorists have also developed relational conceptions of autonomy, drawing frequently on ethic of care theory and arguing that the individualistic notion of the self is male-deﬁned and at odds with many women’s experience and the norms of femininity, which are associated with love, loyalty, friendship, and care. An examination of this branch of relational autonomy is beyond the scope of this article, see, however, A Donchin, ‘Understanding Autonomy Relationally: Toward a Reconﬁguration of Bioethical Principles’ (2001) 26 (4) J Med Philos 365; M Friedman, ‘Autonomy and Social Relationships: Rethinking the Feminist Critique’ in D Tietjens Meyers (ed.), Feminists Rethink the Self (Westview, Boulder, Colo 1997) 55–8; V Held, Feminist Morality (University of Chicago Press, Chicago 1993) and E Fox Keller, Reﬂections on Gender and Science (Yale University Press, New Haven, Conn. 1985). 106 See J Herring, ‘Caregivers in Medical Law and Ethics’ (2008) 25 (1) J Contemp Health L & Pol’y 1. 107 Maclean, above, n 103, 247. 108 D Callahan, ‘Principlism and Communitarianism’ (2003) 29 (5) J Med Ethics 287, 289. See also D Callahan, ‘A Moral Good, Not a Moral Obsession’ (1984) 14 (5) Hastings Cent Rep 40. 109 Ibid. See also J Keown, Euthanasia, Ethics and Public Policy (Cambridge University Press, Cambridge 2002) 53. Raz also argues that autonomy should be ‘exercised in the pursuit of the good’ and that ‘[a]
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Brazier contends that the harm caused to a child by the loss of a parent, including the trauma of bereavement and the loss of parental care, suggests a moral obligation on parents to care for their health.110 She gives the example of a widowed father who refuses surgery to remove a melanoma on his face because his good looks and sexual allure may be at stake.111 She holds that the man acts unethically if he acts without regard to the consequences of his choice for his children.112 In relation to pregnant women, she argues that ‘[c]hoices which affect the children we bring into the world should be made responsibly, with regard not just to our desires but to the interests of those children’.113 McCall Smith seems to go a little further and argues that the distress which would be caused to family members by a person’s treatment refusal could override the person’s right to refuse treatment and justify enforced treatment. He states that ‘a patient who refuses medical treatment for a life-threatening condition may risk causing considerable distress to family members should his death result. Surely an argument can be presented here for considering this distress as a possible justiﬁcation for non-consensual treatment’.114
B. Relational Autonomy in the Irish Context Interestingly, a relational approach to autonomy of this nature has been evident in some constitutional jurisprudence in the Irish context. For example, in the High Court ex tempore decision of Re K,115 Abbot J held that a woman’s refusal of a blood transfusion should be overridden, notwithstanding that he believed her to be competent.116 This was due to concerns that her new-born child would have no-one to look after it in the event of her death.117 The child’s welfare was paramount and superseded the woman’s right to refuse treatment. Abbot J appears to have taken into account her perceived obligations to her child and to have viewed these obligations as a justiﬁcation for overriding her refusal to consent to treatment. However, as Donnelly notes, this approach would ﬁnd little support in other jurisdictions.118 She views the
110 111 112 113 114 115
116 117 118
utonomous life is only valuable if it is spent in the pursuit of acceptable and valuable projects and relationships’. See J Raz, Ethics of the Public Domain: Essays on the Morality of Law and Politics (Clarendon Press, Oxford 1994) 381–417. M Brazier, ‘Do No Harm-Do Patients Have Responsibilities Too?’ (2006) 65 (2) Camb Law J 402. Ibid. Ibid. M Brazier, ‘Liberty, Responsibility and Maternity’ (1999) 52 CLP 359, 369. A McCall Smith, ‘Beyond Autonomy’ (1997) 14 (2) J Contemp Health L Pol’y 23, 30–5. Re K (22 September 2006, unreported), High Court. See also JM v Board of Management of St. Vincent’s Hospital  1 IR 321 wherein P Finnegan held that a woman’s advance refusal of a blood transfusion could be overridden as she lacked capacity. He added that since the medical evidence showed she had a sixty per cent chance of survival and ‘since she has a child and a loving husband’, his decision was ‘easy’, which indicates a relational approach to autonomy. See Fitzpatrick and Another v K and Another  2 IR 7, 83. The evidence before the court was that the woman had recently arrived in Ireland unaccompanied by the child’s father. Donnelly, above, n 4, 38. There have been some cases indicating that a person’s right to refuse treatment due to the existence of dependant others in the USA. See, for example, In the Application of President and Directors of Georgetown College Inc (1964) 118 App DC 90, United States v George (1965) 239 F Supp 752; Holmes v Silver Cross Hospital (1972) 340 F Supp 125 and Superintendent of Belchertown v Saikewicz (1977) 370 NE 2d 417.
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decision as a serious reduction in the status of autonomy, as the woman’s right to refuse treatment was overridden not because of a threat to the child’s life but because of ‘a more amorphous threat to his wellbeing’.119 Indeed, the decision of Re K seems to depart from existing jurisprudence in Ireland on treatment refusal.120 A limit to one’s right to refuse treatment based on the welfare needs of others had not been previously set out in law. For example, in Re a Ward of Court it was held a competent person’s refusal of treatment can only be overridden in cases of contagious diseases or in a medical emergency where the patient is unable to communicate.121 However, in North Western Health Board v HW and CW,122 Hardiman J listed broader exceptions including those ‘based on social need’ and those ‘speciﬁcally identiﬁed by the law’.123 The ‘social need’ exception could perhaps justify the decision of Abbot J. However, the issue of whether the woman’s right to refuse treatment was limited by responsibilities she owed to her son was not addressed at a full hearing.124 As Donnelly notes, Laffoy J did, however, refer to the US decision of Norwood Hospital v Yolanda Munoz 125 which held that the state’s interest in protecting children’s welfare did not override the mother’s right to refuse life-saving treatment.126 This may indicate that a relational approach which focuses on a person’s moral obligations to others does not apply in this jurisdiction. Nonetheless, the issue remains open.127
C. Challenges of the Relational Approach There are difﬁculties with translating the relational approach to autonomy into legal principle. Indeed, while Brazier argues that one has a moral obligation to make ethical and responsible choices which consider the consequences for others, she does not contend that the law should intervene to ensure people make ethical choices. Referring to maternal conduct during pregnancy, she points out that to compel a woman to subordinate her interests to those of the potential child would be illogical, since a parent is under no legal obligation to donate blood, for example, to their born child.128 Moreover, the boundaries of such a legal principle would be difﬁcult to deﬁne, with questions arising as to whether a pregnant woman could be compelled to give up smoking or to consent to foetal surgery.129 She also argues that allowing law to police pregnancy in this manner would give the control of pregnancy to others, such as the medical profession.130 She states that: 119 Donnelly, above, n 4, 37–8. 120 A Sheikh, ‘Medico-legal Issues and Patient Autonomy—Here Yesterday, Gone Tomorrow?’ (2006) 12 (2) MLJI 54, 54–5. 121 In re a Ward of Court (No 2)  2 IR 79, 56 per Denham J Donnelly, above n 55, 36. 122 North Western Health Board v HW and CW  3 IR 622. 123 Ibid 747. See Donnelly, above, n 55, 36. 124 Laffoy J found that the woman lacked capacity to refuse the blood transfusion. Thus, the balancing of rights and interests was not at issue in the case. Fitzpatrick and Another v K and Another  2 IR 7, 101. 125 Norwood Hospital v Yolanda Munoz (1991) 564 NE 2d 1017. Donnelly, above n 55, 37. 126 Fitzpatrick and Another v K and Another  2 IR 7, 84. 127 Donnelly, above, n 55, 37. 128 Brazier, above, n 113, 375. 129 Ibid 377–8. 130 Ibid 383.
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. . . once legal means are used to compel a woman to accept the case made for the foetus at whatever cost to her, we have abandoned the language of choice for the crudity of compulsion. We have ceased to recognize the pregnant woman’s capacity to make her own moral choices for herself and her child.131 If one applies McCall’s argument that the possible distress of family members caused by a person’s treatment refusal could justify enforcing treatment, this could mean that one could be forced to accept treatment which could lead to years of unwanted hardship and pain. It could also result in the enforcement of treatment which the patient believes will result in her eternal damnation.132 This type of argument could mean that a person’s moral agency is undermined,133 and their right to making important decisions regarding their treatment is taken away. The emphasis is on the impact on others caused by a person’s treatment refusal rather than on the possible physical or psychological impact of enforced treatment on a person who wishes to refuse it. Indeed, McCall-Smith also takes this approach in an earlier article regarding maternal-foetal conﬂict and notes: [i]t is preferable to protect the value of maternal autonomy even if in doing so the interests of a fetus are compromised. The reason for the making of an exception in this case could seriously weaken the protection which the law affords human liberty. If the principle is admitted that rational persons can have treatment forced upon them, even for the admitted good of another, then the way is open to a range of interventions which could well prove unacceptable.134 Following these arguments, it is submitted that while it can be considered unethical for a person to make a decision which will have bad effects for others, it should not be considered illegal. One’s moral obligations to others and the interests of others should certainly be weighed in the balance in medical decision-making. However, these obligations should not ultimately be used as a legal basis for the imposition of medical treatment. In this regard, Maclean has suggested a framework of consent to support this approach, which he terms ‘relational consent’, which will now be discussed. V I . THE THEO RY OF RE LATI ON AL CO NSE NT
A. Professional and Patient Relationship At the centre of the concept of relational consent is the relationship between healthcare professionals and patients. Maclean argues that both parties in this relationship must recognise each other’s moral agency, in order to maximise the outcome for 131 Ibid 375. 132 For example, Jehovah’s Witnesses believe that if they accept a blood transfusion, they will not live eternally in God’s new world. It is also seen as denouncing the doctrines of one’s religion and can lead to the person being shunned from the religious community. 133 Maclean, above, n 103, 76. 134 A McCall-Smith, ‘Fetal Medicine: Legal and Ethical Implications’ (1992) Issues in Fetal Medicine 163, 169.
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autonomy.135 Through mutual respect and trust, patients are empowered to be autonomous and healthcare professionals are empowered to exercise their expertise to further the patient’s goal.136 This contrasts with the liberal approach, which appears to ignore the healthcare professional’s moral agency and reduces her role to that of disclosing information.137 In the relational model, healthcare professionals have an obligation to facilitate a communicative process preceding consent138 and patients have an obligation to engage in this process, out of respect for the autonomy of the healthcare professional.139 This approach leans towards the Kantian vision of autonomy, which places emphasis on objectivity and rationality. Autonomy is understood as ‘moral, rational self-determination’ rather than the liberal individualistic model of ‘rational self-determination’.140 However, Maclean’s approach to consent does not claim that a patient’s moral responsibilities or the impact of her treatment refusal on others should override her right to refuse treatment. Rather, he argues that in order to endorse a relational approach to autonomy, health care professionals should facilitate good decision-making which is based on patients’ goals and values and which takes into account the impact of their decisions on others.141 According to Maclean, relational consent involves a dialogical process between the patient and the professional which aims to reach an autonomous decision regarding treatment, and requires duties of both to be recognised. For example, he argues that the professional must encourage self-reﬂection142 and engage patients in dialogue which involves challenging apparently irrational decisions.143 The process also involves enquiring into patients’ reasons for their decisions, to ensure that they are not based on misinformation or a misunderstanding.144 Indeed, this approach respects autonomy in a more robust way than the liberal approach. Respecting autonomy should not merely be seen to be achieved by accepting a person’s unexamined decision,145 but should be a process which facilitates and respects true autonomous choice. The liberal approach to autonomy does not encourage such an approach. The 135 136 137 138 139 140 141 142
Maclean, above, n 103, 76. Ibid. McCall-Smith, above, n 114, 25. Maclean, above, n 103, 243. Ibid 244. Maclean, above, n 103, 79. Ibid 94. Maclean notes that ‘. . . through critical self-reﬂection agents are able to decide whether to accept or reject the inﬂuences to which they are subject. It is only by thinking about the inﬂuences and accepting them as one’s own that one can be more than just determined entirely by factors outside one’s control. It follows from this that, if autonomy is to mean anything more than simple freedom (from external constraints) of action, then it must include some notion of critical self-reﬂection’. Maclean, above, n 103, 19 citing P Huntington, ‘Towards a Dialectical Concept of Autonomy’ (1995) 21 (1) J Philos Soc Crit 37 and B Berofsky, ‘Identiﬁcation, the Self and Autonomy’ (2003) 20 (2) Soc Phil Pol’y 199. 143 Maclean, above, n 103, 247. Challenging a decision, he argues, should not be an adversarial challenge, but rather a ‘gentle probe’ to allow healthcare professionals to assess patients’ decision and to ensure they have understood the information given and the decision to be made. 144 Ibid 83. 145 Ibid 85. Maclean cites Barilan and Weintraub, who argue that ‘[a]biding by unexplored expressed wishes does not necessarily amount to respect for persons, since respect is much more than submission to social boundaries’. See Y Barilan and M Weintraub, ‘Persuasion as Respect for Autonomy: An Alternative View of Autonomy and the Limits of Discourse’ (2001) 26 (1) J Med Phil 12, 20.
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law allows for irrational or non-existent reasons regarding treatment refusal.146 However, as Scott notes, such reasons can lack a fundamental connection to the person’s deeply held values and as such are not linked to a person’s interest in selfdetermination which is the principal foundation of the right to refuse treatment.147 The case of Re MB highlights the dangers which arise in taking an individualistic liberal approach to decision-making. MB wanted to give birth, but refused a caesarean section due to needle-phobia. As Herring notes, if the reasons for her refusal had not been ascertained, it would not have been discovered that her phobia had compromised her capacity to make the decision and the caesarean section would not have been performed.148 This would have led to the preordination of her momentary wishes over her long-held desires and values.149 Thus, the liberal approach may, in fact, undermine autonomy by respecting decisions which are not truly autonomous, in that they do not accord with the patient’s deeply-held goals and values. In addition, in the relational consent model, there is increased understanding and communication between healthcare professionals and patients, which could thereby reduce the circumstances in which cases come to court in an emergency situation. In the cases in England and Wales, it has been argued that ﬁndings of incapacity were made, often on dubious grounds, in order for the Court to be able to impose a decision which complied with medical orthodoxy.150 McCall-Smith is of the view that this practice is a way of avoiding the central issue of the balancing of individual autonomy against other interests.151 In contrast, a relational approach to autonomy identiﬁes the conﬂicting rights and interests in these cases and seeks to balance them by facilitating reasoned decision-making, which takes into account the rights and interests of others. For example, Maclean contends that patients are required to give due concern to the impact of their behaviour on others.152 This duty to engage in dialogue and mutual persuasion arises from the argument that there is an obligation to act in a morally responsible way and to at least consider the impact of one’s decisions on others.153
B. Mutual Persuasion As part of the process of relational consent, Maclean suggests that if a professional is faced with an apparently irrational decision, she would need to go further than merely exploring the patient’s reason for the decision. She would have a duty to persuade the patient to change her mind.154 He also argues that patients should seek to persuade professionals as to why their decision is in keeping with their goals and values. Maclean also argues that the professional must be open to persuasion that her opinion may not 146 Re T (Adult: Refusal of Treatment)  4 All ER 649, 653. 147 Scott, above, n 4, 243. 148 See Herring, above, n 42, 197. See also J Herring, ‘Caesarean Sections, Phobias and Foetal Rights’ (1997) 36 (3) Camb Law J 509. 149 Ibid. 150 Harrington, above, n 50, 362. 151 McCall-Smith, above, n 114, 35. 152 Maclean, above, n 103, 96. 153 Ibid, citing C Gauthier, ‘The Virtue of Moral Responsibility’ (2005) 30 (2) J Med Phil 153. 154 Maclean, above, n 103, 84. See also A Maclean, ‘Autonomy, Consent and Persuasion’ (2006) 13 EJHL 321. See also C Tauer, ‘When Pregnant Patients Refuse Interventions’ (1993) 4 (4) AWHONNS Clin Issues Perinat Womens Health Nurs 596.
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be the patient’s best option.155 In this way, both parties are open to being persuaded that their position is wrong. Maclean terms this ‘mutual persuasion’. He argues that the duty to persuade ‘must be restricted to the use of rational argument and should avoid any manipulative tactics such as deception, bullying or undue exploitation of the patient’s guilt’.156 Scott also views coercion as inappropriate, arguing that ‘heavy duty persuasion’ is only appropriate when the treatment refused does not carry signiﬁcant risks or pain and an ‘insufﬁciently serious’, ‘trivial’, ‘irrational/inappropriate and purposeless’, or ‘non-existent’ reason is given for refusing a caesarean section.157 However, notwithstanding the use of persuasion, Scott notes that the ﬁnal decision rests with the patient.158 Maclean also concedes that if, after the process of mutual persuasion, the patient persists with her decision, this must be respected.159 Thus, coercion is avoided and the patient’s autonomy is protected. The aim of persuasion is to facilitate good decision-making, not merely to enforce upon the patient the professional’s idea of good clinical decision-making.160 It is submitted that the concept of relational consent may be a useful framework within which to examine the issue of caesarean section refusal in Ireland, as this approach allows for the right to life of the unborn to be defended while at the same time respecting the woman’s autonomy. As Scott argues, the approach based on persuasion allows the State’s interest in protecting foetal life to be expressed by encouraging reasonable treatment decisions on the part of pregnant women.161 The right to life of the unborn is, at the very least, considered. This is done through discussion of the impact of refusal of treatment on the foetus, and through attempts to persuade a woman to change her mind if she makes a decision which threatens the life of the foetus. In this way, the right to life of the unborn can be defended and vindicated. V I I. I M PLE M EN TI N G R E LATI ON AL CON S EN T I N CAESAR EAN S E C T I O N RE F U S A L
A. Relational Consent and Emergency Caesarean Section It has been argued that, in the context of caesarean section refusal in Ireland, a relational approach to consent involving a process of mutual persuasion may be an appropriate way to balance conﬂicting rights. However, Maclean suggests that mutual persuasion should be conducted when the patient is best able to engage with the process, and when adequate time and a suitably private location are available.162 This 155 Scott, above, n 4, 250. 156 Maclean, above, n 103, 249. 157 Scott, above, n 4, 243. She deﬁnes a trivial reason as one which ‘arguably lacks a fundamental connection to the person’ and which is not ‘linked with the person’s moral interests in self-determination and/or bodily integrity’. A serious reason is one which has ‘an intrinsic connection to the woman and her underlying moral interests in self-determination and/or bodily integrity’. When a ‘serious reason’ is given for the refusal of a caesarean section, Scott argues that counselling and discussion are appropriate. Scott, above, n 4, 238–9. 158 Maclean, above, n 103, 263. 159 Ibid. 160 Ibid 247. 161 Scott, above, n 4, 263. 162 See Maclean, above, n 103, 241–2.
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raises particular issues regarding refusal of emergency caesarean section. First, emergency conditions do not allow time for engaging in meaningful dialogue. Second, while it is wrong to assume that a woman in labour is incompetent, conducting a capacity test at this time may not be appropriate due to possible pain, stress, and medication. As O’Neill argues, ‘a person who is ill or in pain may not be in a position to make a “robust expression of autonomy”’.163 Thus, it is submitted that in order to provide an environment which is conducive to mutual persuasion it may be appropriate to address the issue of decision-making surrounding caesarean section before an emergency arises.164 This could reduce the circumstances in which resort to the court is required. The cases which arose in England and Wales indicate the difﬁculties inherent in producing reasoned judgement in emergency cases, with many of the cases being heard over the telephone, without formal evidence and in a matter of minutes. These cases also indicate serious breakdowns in trust and communication.165 For example, the women were often not represented166 and in the case of Tameside, the action was brought before the Court without the woman’s knowledge. Thus, the process of mutual persuasion, occurring during the pre-natal stage, could help to address these issues. This could be implemented through the use of advance decisionmaking mechanisms, such as advance care directives or birth plans, as discussed below.
B. Advance Decision-Making Regarding Caesarean Sections One option which could be used in order to implement a decision-making framework regarding caesarean sections before emergencies arise is advance care directives. The process of drawing up an advance care directive would include a process of mutual persuasion and would record a competent woman’s preferences regarding caesarean sections. However, there are issues with such an approach. First, there is no legal provision for advance directives in Ireland.167 Secondly, there is a lack of capacity 163 O’Neill, above, n 5, 9. In the Irish context, in Fitzpatrick v White  3 IR 551, 556 it was held: ‘There are obvious reasons why, in the context of elective surgery, a warning given only shortly before an operation is undesirable. A patient may be stressed, medicated or in pain in this period and may be less likely for one or more reasons to make a calm and reasoned decision in such circumstances. ’ 164 See also the Medical Council’s, The Guide to Professional Conduct and Ethics (7th edn 2009) which states at para [37.2]: ‘It is not recommended to seek consent when a patient may be stressed or in pain and therefore less likely to make a calm and reasoned decision. Where possible, you should explain risks well in advance of an intervention.’ 165 In Tameside and Glossop Acute Services Trust v CH  1 FLR 762, an application was made for a declaration that an enforced caesarean section would be lawful in the event that the woman refused and the application was made without her knowledge. The woman was, however, represented by a guardian ad litem at the hearing. See Bartlett and Sandland, above, n 44, 524. 166 This occurred, for example, in Re S  Fam 123; Rochdale Healthcare NHS Trust v C  1 FCR 274; Norfolk and Norwich Healthcare NHS Trust v W  2 FLR 613 (the woman was not represented but the Ofﬁcial Solicitor provided counsel to act as amicus curiae); Re L (5 December 1996, unreported), Fam Division and in Re MB(Adult: Medical Treatment)  Fam Law 542 (MB was represented by counsel who spoke to her over the phone). See Francis, above, n 26. 167 Madden, above, n 82, 531. Madden suggests that a court would uphold the validity of an advance directive provided that the author was competent and informed and that it was clear and speciﬁc to the patient’s current situation. See also Law Reform Commission, LRC 94-2009, Bioethics: Advance Care Directives (Law Reform Commission, Dublin 2009) 22–3.
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legislation in the Irish context.168 In addition, an advance care directive is a legally binding document, which must be followed in the event of a patient losing capacity to make a decision. However, since a woman is not necessarily incompetent during labour, she may also be in a position to override her earlier decisions, thus meaning the advance directive is an inappropriate way in which to record her wishes in this context. In light of these difﬁculties, a birth plan may be a more suitable mechanism with which to address caesarean section refusal.169 A birth plan is described as ‘a written statement outlining an individual woman’s or family’s wishes about the birth of their baby’.170 They may cover a woman’s preferences in relation to, for example, induction of labour and pain relief.171 They may also contain refusal of treatments, such as, for example, caesarean sections.172 In this context, it is interesting to note that in Fitzpatrick v K 173 Laffoy J suggested that when a woman books into a maternity hospital, information should be sought on her position regarding blood transfusions in the case of emergency.174 In the same way, it could be argued that during prenatal care, the hospital is obliged to ascertain the woman’s view regarding emergency caesarean section and to record it in a birth plan. Regardless of a woman’s stance, discussion of the procedure and the impact of a caesarean section refusal on the foetus and on others should take place. If a woman is opposed to a caesarean section, the process of mutual persuasion including the examination of a woman’s reasons for the decision should be undertaken. This should involve a sensitive discussion of the woman’s reasons for refusal, the impact of the woman’s decision, time for self-reﬂection and discussion in which both patient and physician attempt to persuade the other to see their position as appropriate. In addition, if a woman consents to a caesarean section but later withdraws her consent during labour, the impact of the refusal will still have been considered. One of the main beneﬁts of completing a birth plan is that it facilitates the process of relational consent. The process of making a birth plan ‘requires a woman to examine her values, identify her goals, and educate herself’.175 It enables improved communication in the patient–professional relationship, the creation of opportunities
168 An Assisted Decision-Making (Capacity) Bill is expected to be published in 2013. 169 J Herring, ‘The Caesarean Section Cases and the Supremacy of Autonomy’ (2000) 3 CLI 281. 170 Health Department Victoria, Having a Baby in Victoria. Final Report of the Ministerial Review of Birthing Services in Victoria (Health Department Victoria, Melbourne 1990) as cited in S Brown and J Lumley, ‘Communication and Decision-Making in Labour; Do Birth Plans Make a Difference’ (1998) 1 Health Expect 106, 107. 171 See M Wagner, Creating Your Birth Plan: The Deﬁnitive Guide to a Safe and Empowering Birth (Penguin, New York 2006) 221–35. 172 V Harpwood, Legal Issues in Obstetrics (Dartmouth Publishing, Aldershot 1996) 111. 173 Fitzpatrick and Another v K and Another  2 IR 7. 174 Ibid 103. A useful analogy is the consent process which occurs in the context of biobank research in the UK, where women are approached in ante-natal classes for their consent to the collection of umbilical cord blood for research. See Annex A of the Human Tissue Authority 003/2010. 175 N Philipsen and D Haynes, ‘The Similarities between Birth Plans and Living Wills’ (2005) 14 (4) J Perinat Educ 46, 47. See also J Lothian, ‘Birth Plans: The Good, the Bad, and the Future’ (2006) 35 (2) JOGNN Clin Issu 295.
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to discuss preferences and enhanced participation of women in their care.176 Thus, drawing up birth plans allows for the process of mutual persuasion to occur. As outlined above, the cases in England and Wales revealed issues regarding poor communication. One of the main beneﬁts of completing a birth plan is that it facilitates the process of relational consent. In addition, since the process involves time and dialogue, it allows for informed conclusions to be made about a woman’s decisional capacity. VI II . CON CL US IO N The issue of emergency caesarean section refusal raises issues of considerable legal complexity, in relation to autonomy, capacity, and the right to refuse treatments. In contrast to England and Wales, both the woman’s right to refuse treatment and the right to life of the unborn are afforded constitutional protection in Ireland. This makes the liberal individualistic approach to autonomy and treatment refusal difﬁcult to apply. The current position in England and Wales is ﬁrm in its refutation that foetal interests should be weighed against the right of the pregnant woman to refuse treatment. It is on this basis that the courts can set out an individualistic right to refuse treatment. However, since the right to life is protected under the Irish constitution, this reasoning is not easy to apply in the Irish context. Thus, it was argued that an alternative theoretical framework may be needed within which to address situations which involve competing rights. In this regard, it was stressed that a relational approach to autonomy has an important role to play, as this vision of autonomy stresses the importance of the consideration of the rights and interests of others in the decision-making process. In this regard, it focused in particular on the value of Maclean’s theory of relational consent, which stresses the importance of mutual respect and dialogue between healthcare professionals and patients. It was argued that the process of mutual persuasion, which seeks to facilitate reasoned and autonomous decision-making through explanation of reasons for decisions, challenging of apparently irrational decisions, and encouragement of self-reﬂection, has many beneﬁts in this context. First, it allows time for the development of good communication and trust in a way which could reduce the circumstances in which the issue of enforced caesarean section cases arise. Second, it is preferable that the issue of caesarean section refusal be dealt with in a process of dialogue in the prenatal stage, thereby reducing the circumstances in which emergency orders are sought, which, as was seen from the cases in England and Wales, are often not conducive to reasoned argument or considered assessments of capacity. It was also argued that the relational model of consent allows for the right to life of the unborn to be taken into account through discussion of the impact of the woman’s choice on her foetus and through persuasion which tries to encourage her to make a
176 Health Department Victoria, Having a Baby in Victoria. Final Report of the Ministerial Review of Birthing Services in Victoria (Health Department Victoria, Melbourne 1990) as cited in Brown and Lumley, above, n 130, 107. As Perry and others note: ‘the birth plan is not intended to be simply a list of requests but rather a tool to facilitate communication between women and those who will care for them in labor birth to foster trust, respect, autonomy, and integrity of all involved’. C Perry and others, ‘Birth Plans and Professional Autonomy’ (2002) 32 (2) Hastings Cent Rep 12.
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choice which does not endanger herself or the foetus. Through this process, the State can fulﬁl its mandate to protect foetal life and to do what is both practicable and proportionate in the circumstances. The woman’s autonomy is also protected. Under this model, it is argued that, ultimately, a woman’s choice should not be overridden due to her obligations to others, such as the foetus. If, after the process of mutual persuasion, she insists on refusing a caesarean section, this decision should be respected. In addition, it is submitted that the woman’s autonomy is protected in a more robust way than it would be if an individualistic theory of autonomy were applied. This is because attempts are made to ensure that her choice is autonomous, in that it is not based on a misunderstanding and complies with her values and goals. Thus, an approach based on relational consent, through the possible use of advance decision-making, could provide an appropriate framework within which to address the particular issues which arise in this jurisdiction in relation to caesarean section refusal. However, as noted, this approach ultimately allows for the subordination of the foetal right to life to a woman’s right to autonomy. On this point, it must be noted that in all the reported cases in England and Wales, the courts were unwilling to adopt this approach in practice, notwithstanding the fact that the foetus does not enjoy legal personality under English law. Due to the tragic results for the woman and foetus which can arise as a result of the refusal of caesarean sections, it would certainly be a brave court which would uphold a woman’s right to refuse treatment. It is thus hoped that the circumstances in which healthcare professionals wish to enforce a caesarean against a patient’s wishes are rare. However, if such a case arises in Ireland, it is certain that the judiciary will be faced with complex legal and ethical issues, resolved only by either the grave diminution of a woman’s autonomy and bodily integrity or the exposure of the woman and/or her foetus to the risk of serious harm or death.