Re MB

A competent adult has an absolute right to refuse medical treatment, however irrational the refusal and however grave the consequences. The court has no jurisdiction to authorise intervention merely to protect an unborn child.

Capacity is presumed. It is absent only where an impairment or disturbance of mental functioning prevents the patient from understanding and retaining material information, or from using and weighing it to reach a decision. Panic, fear and irrationality do not alone establish incapacity, but a phobia may temporarily destroy capacity by preventing a real choice. Where capacity is absent, necessary treatment may be given in the patient’s best interests, using reasonable force if justified.

A health authority obtained urgent declarations from Hollis J permitting a caesarean section, anaesthesia and reasonable force in relation to a woman in labour whose unborn child was in a footling breech position. She had agreed to the caesarean section but repeatedly refused the needles and anaesthesia required for it because of an acute needle phobia.

The judge found that the phobia prevented her from considering matters lucidly. She appealed, contending that she had capacity, that treatment had not been shown to be in her best interests, and that force could not lawfully be used. The Court of Appeal dismissed the appeal after an emergency hearing and later gave reasons. The central issues were capacity, best interests, the use of force, and whether the interests of the unborn child could justify intervention.

1. Appeal dismissed. The court held that Miss MB temporarily lacked capacity when she refused anaesthesia. Although she wanted the caesarean section, her needle phobia caused panic which dominated her thinking and made her unable to weigh the relevant information or make a decision.

2. Every adult is presumed capable of consenting to or refusing treatment. A competent patient may refuse treatment for rational, irrational or no reasons, even if refusal risks death or serious injury. The gravity of the decision informs the level of capacity required, but irrationality, panic or indecision alone do not establish incapacity.

3. The decisive question is whether an impairment or disturbance of mental functioning prevents the patient from understanding and retaining material information, or from using and weighing it as part of the decision-making process. A phobia may have that effect. Applying the approach in [1993] Fam 95 and [1994] 1 FLR 31, the psychiatric evidence established such an impairment at the material time.

4. Once capacity was absent, the doctors could provide treatment that was necessary and reasonably required in the patient’s best interests. Best interests extended beyond strictly medical interests. The evidence showed that the operation accorded with Miss MB’s own wish for a live, healthy child and would avert likely long-term psychological harm. The declaration permitting reasonable force was justified, although none was ultimately required.

5. The court’s conclusions on the unborn child were expressly unnecessary to the result. A competent woman’s refusal cannot be overridden by balancing the interests of her foetus. Before birth, the foetus has no separate interests capable of being considered on an application to authorise a caesarean section. The contrary implication in [1993] Fam 95 and the approach in [1993] 1 FLR 26 were rejected. The court also gave procedural guidance for urgent applications, including early identification, representation of the mother, notice to the Official Solicitor, and evidence on capacity and best interests where time permits.

• Court of Appeal (Civil Division): Dismissed Miss MB’s appeal and upheld Hollis J’s urgent declarations authorising treatment, including a caesarean section and reasonable force if necessary.
• High Court, Family Division: Hollis J granted declarations that treatment necessary for the patient’s labour could lawfully be given despite her inability to consent.