ABSTRACT
Power Imbalance in Court It is only relatively recently that the law has been drawn into conflicts in which doctors have asked the court to authorise treatment against the wishes of the patient. Such actions are often brought to protect doctors from criticism and claims that they have acted unlawfully.1 In most such cases there is time for the due process of the law to take its course, even if considerations must be expedited. However, in cases involving pregnant women, decisions have usually been taken in a hurry and there has been minimal, if any, representation for the woman. Medical evidence has been generally accepted without demur, and assessment of the woman’s competence has often been perfunctory. In particular, the use of forced Caesareans in the UK has been described as ‘an Orwellian scenario’ revealing ‘the blanket assumption of maternal incompetence and the widespread use of thinly veiled coercion’.2 Seeking Compulsion by Law The traditional principle is that the foetus has no legal personality so, as held in Paton v BPAS,3 its interests cannot be set up in preference to those of the mother. This was applied to an English obstetric case in In Re F (in utero) (1988), in which both Paton and the subsequent similar case of C v S4 were affirmed. In Re F concerned a pregnant woman whose first child had already been taken into care. When she disappeared within two weeks of the expected delivery date of her next child, the local authority – which had already planned wardship of this child too once born – applied to the court to commence proceedings in advance of the birth. The application was dismissed at first instance because the judge held that the court had no jurisdiction, and the local authority appealed and obtained a further emergency hearing. This also failed.
