A conflict of ethics and responsibility

another Solomon judgment. The veterinary assistant, known only by her anonymous initial, yesterday became the latest subject in a series of high-profile legal cases concerning when it is right for the medical profession to treat a person against their wishes.

The case of Miss S follows a string of others - most notably that of the anorexic Miss C who was force-fed against her will - but Miss S's case, to the layman but not the law, was different in one crucial respect:

Miss S was pregnant.

As a general principle, adults in Britain can legally accept or reject medical advice or treatment, even if this means they will die. The law places a high value on an individual's right to choose and on their body's integrity. Key to this is the law's recognition that a patient may decide that there are things more important to them than the predicted outcome of a course of treatment.

Put simply, as far as adult patients are concerned, the courts can't decide to overrule a patient's decision not to have treatment just because that decision is likely to result in their death. But with this comes an important proviso: the patient has to be capable of making this decision. And this brings particular difficulties in the case of Miss S.

Miss S was detained in hospital under the Mental Health Act by social worker Louize Collins after her local GP and another doctor informed the social worker that Miss S was refusing treatment for severe pre-eclampsia - a condition which threatened not only Miss S's life, but that of her unborn baby.

The Court of Appeal was told of the very real problems Louize Collins faced in making her decision. Miss S was obviously depressed and she told doctors ''she would not be bothered if she dies and it would be better for the baby to be dead''. She also wanted to leave the hospital so that she could go to Wales to have the baby in a barn.

But the appeal court judges did not believe such statements meant that Miss S was unable to make up her mind whether she wanted treatment.

''The Mental Health Act cannot be deployed to achieve the detention of an individual against her will merely because her thinking process is unusual, even apparently bizarre and irrational, and contrary to the view of the overwhelming majority of the community at large,'' they said.

The question of Miss S's capabil-ity of making the decision is, according to Professor Sheila McLean, Professor of Law and Ethics in Medicine at Glasgow University, fundamental. ''This is a critical judgment because there is a confusion between someone's competence to make a decision, which is a legal concept, and someone's rationality, which is a more intuitive thing, and this goes some way towards clarifying it,''

she says.

''Competence is a legal term which considers a person's ability to receive information, understand that information, and use it. If the way the

person chooses to do this appears irrational then, legally, that should

be irrelevant.''

There are further complications in Miss S's case in that she was detained unlawfully under a section of the Mental Health Act which allows only assessment of her condition. This was unknown to the High Court judge, Mrs Justice Hogg, who granted the order for a caesarean operation. Mrs Justice Hogg was also told wrongly that Miss S was in labour and in urgent need of treatment.

For these reasons the judges found that Miss S's detention in hospital was unlawful, the application to Mrs Justice Hogg was defective, and

the caesarean operation amounted

to trespass.

Although it is easy to accept that what a patient does with their own body is their own concern, it is obvious that many people reading of Miss S will be concerned with how her decision would have affected her unborn child. But, as far as the rights of Miss S's unborn child are concerned, the case is clear legally, if not, to some at least, morally.

Lord Justice Judge, one of the Court of Appeal judges, said: ''Many doctors would believe that for them to do nothing in the face of such intransigence, at least for the sake of the unborn child, was not consistent with the ethics which underpin their profession.''

However, Professor McLean points out the dangers of affording rights to unborn children. ''Foetuses do not have any legal rights,'' she says. ''One of the things that has been causing concern is the number of cases, particularly in England and the US, which involve making a judgment about the welfare of the foetus.

''Most women, most people, would agree that a woman should make a decision that is in the best interest of the foetus. But, if you think about it, if you required all women to do this then women would have to behave at all times as if they were pregnant.''