Elective Caesareans without Medical Justification

12 September 2002

Aon Legal Buying Group
c/o Risk Management Consultant
PO Box 46080
Herne Bay
AUCKLAND

Attention: Jane Bawden

Elective Caesareans without Medical Justification

Introduction

1 You have asked us to consider the legal position when pregnant women request delivery by caesarean section despite there being no medical reason for undertaking such a procedure.

2 In summary, our view is that there is no obligation upon practitioners or DHBs to conduct such procedures without medical justification for doing so. In the absence of any clinical reasons rendering caesarean delivery the preferred delivery method, it is our view that doctors and DHBs are entitled to and should decline to perform this procedure in favour of natural child birthing options. The risk of legal action (breach of Code, professional complaint) is more real than the perceived risk involved in failing to allow the mother’s request.

Reasoning

3 We base this opinion on certain factual premises. First that a caesarean section delivery involves increased risk to the mother than conventional birth, both immediately, post-birth and in future childbirth. Second that caesarean section delivery involves increased cost to the DHB in a number of aspects. Third, we assume for the purpose of the opinion that there is no clear best option for the child (although we are advised natural birth is likely to be preferable).

4 The first point of reference is the Medical Practitioners’ Code of Ethics. The operative principle in respect of this issue is principle 11 which requires a practitioner to “Recommend only those diagnostic procedures which seem necessary to assist in the care of the patient and only that therapy which seems necessary for the well-being of the patient. Exchange such information with patients as is necessary for them to make informed choices where alternatives exist.”

5 Pursuant to this principle it seems clear that a practitioner’s first obligation is to recommend natural child birthing techniques in the absence of any clinical indications requiring caesarean intervention. Consumers can express a preference as to who will provide services, and must give informed consent to them, but there is no right to the provision of services of a particular kind. Where a caesarean section is actively sought without any clinical indication for such intervention, the doctor has the right to refuse to perform this procedure despite it being a patient’s expressed preference.

6 We reach this view for a number of reasons. The first is that while patients, namely consumers, have the right to make an informed choice regarding the services they are provided with (Right 7, Code of Health and Disability Services Consumer’s Rights), the nature of those services are restricted pursuant to Right 4. This provides consumers with “the right to have services provided that comply with legal, professional, ethical and other relevant standards.” Right 7 also requires services to be provided in a manner consistent with the needs of the patient.

7 If a patient’s medical condition is not such as to require a caesarean delivery then such a procedure is not endorsed by a practitioner’s legal, professional, ethical or any other standards. Accordingly, it is not one of those services which a patient has the right to receive. Conversely it is a service that a practitioner has the right to refuse.

8 There are few New Zealand cases on point. Of some assistance in determining the legal position is Auckland Area Health Board v Attorney General [1993] 1 NZLR 235. While the facts of this case are not particularly analogous, Thomas J’s discussion of “good medical practice” is highly relevant. As the Court there recognized, this concept begins “with a bona fide decision on the part of the attending doctors as to what, in their judgment, is in the best interests of the patient” (p251). The Court cited with approval the observation of Lord Donaldson MR in Re J (a minor) [1992] TLR 290 that a doctor’s duty is “to treat a patient in accordance with his or her own best judgment. A doctor should not be required to act contrary to this fundamental duty” (p251). Thomas J later reiterated “what is involved is not just medical treatment, but medical treatment in accordance with the doctor’s best judgment as to what is in the best interests of his or her patient. They remain responsible for the kind and extent of the treatment administered and, ultimately, for its duration” (p253.)

9 This point was again taken up by the Court of Appeal in the decision of Shortland v Northland Health Ltd [1998] 1 NZLR 433. Again the facts bear little relevance to the subject of this opinion, but several of the Court’s pronouncements appear to have direct applicability here. The Court referred to Auckland Area Health Board (see above) and held that the criteria of “good medical practice” that are framed for one situation are not necessarily applicable in their entirety to a different situation (p442). The Court held that Thomas J’s fourth criterion in Auckland Area Health Board, namely that there should be fully informed consent of the patient’s family “… is not a requirement which should be regarded as applying to medical decisions irrespective of the circumstances. To require the consent of the patient’s family to the cessation of a particular form of treatment, or to a decision not to give the patient a particular form of treatment, gives the family the power to require the treatment to be given or continued irrespective of the clinical judgment of the doctors involved (p443). The law cannot countenance such a general proposition.” Instead, and of particular importance for present purposes, the Court directed that “those responsible for the patient’s care should bear in mind the views expressed, but ultimately they must decide what in clinical terms and within the resources available is best for their patient” (p443).

10 A similar view was taken by the High Court at Auckland in Auckland Healthcare Services Ltd v L [1998] 5 HRNZ 748. The Court there stated that “when the medical evidence acceptable to the Court indicates that it is in the best interests of the [child] that a certain course be taken, this Court would not lightly require the medical staff to depart from that course. Indeed, there is authority in England which would suggest that to do so would be an abuse of power, directly or indirectly requiring a medical practitioner to act contrary to the fundamental duty to which he owes his or her patient” (p758.)

11 Analysis of such decisions leads us to the view that it is the doctor’s clinical judgment that assumes paramount importance in the situation with which we are now concerned. While a patient is entitled to express any preference she may have regarding the method of her delivery, it ultimately falls to the doctor to determine which method is in her best interests and those of her unborn child.

12 Support for this proposition can similarly be drawn from Australian case law. Of particular interest is Eagle & Anor v Prosser [1999] NSWCA 166 (4 June 1999.) This decision concerned a woman who sued her doctor after giving birth to her child naturally. She argued that she had expressed her preference for a caesarean birth on numerous occasions and that her doctor’s failure to carry out her wishes caused her subsequent medical complications and distress. In the circumstances the doctor had chosen not to proceed by way of caesarean section because she believed there “was no medical reason for a caesarean birth.” The Court found as a matter of fact that the procedure would have become available if, at any time, it became medically necessary, and that the doctor’s decision not to pursue a caesarean delivery without any clinical reason for doing so did not amount to a breach of duty.

13 It is also interesting to note the decision of an Administrative Appeals Tribunal in Australia: Waterford v Department of Health [1995] ACTAAT 104 (6 February 1995). This decision assumes some relevance for opposite reasons. Here the concern was that caesarean sections were being performed too freely in Canberra by obstetricians and disclosure of the number of procedures performed by each practitioner was sought by the local newspaper. The newspaper hoped to use such statistical information to say which Doctors were “more prone to intervene in delivery or to perform caesarean sections when they are not medically justified.” Ultimately the information was not disclosed, but the tribunal did note that “the performance of caesarean sections consumes more public resources than normal births, so that those performed for other than strictly medical reasons will be an unnecessary burden upon those resources”. The tribunal also noted that the information had been compiled in order to allow “questions to be asked about the efficacy of the bodies responsible for maintaining proper standards of medical practice if it seems that certain doctors may be unnecessarily performing caesarean sections.”

14 Adopting such an analysis, it would be preferable to limit caesarean sections performed to only those which are necessitated on a clinical basis. This would not only avoid criticism of the type experienced in Canberra, but also ensure compliance with the Code of Ethics. Particular reliance is here placed on principle 47 which states that “doctors must not allow the commercial interests of an employer or health provider to interfere with the free exercise of clinical judgment in determining the best ways of meeting the needs of individual patients or the community…”. Naturally the doctors own commercial interests must not interfere with clinical judgement.

15 The DHB will be liable for the acts and omissions of those providing the caesarean section to the women (s72 Health and Disability Commissioner Act 1994). It is a defence to prove that such steps as were reasonably practicable were taken to prevent the employee’s action or omission.

16 The downstream risk of elective caesareans is not something which can be ignored. In our view it is not sufficient to leave the election solely to the mother and the doctor concerned. In circumstances where there is no clinical need for the procedure, the DHB retains a level of risk above that present where the procedure was clinically indicated.

17 The objectives of the DHB pursuant to s22 NZ Public Health and Disability Act 2000 include “(i) to uphold the ethical and quality standards commonly expected of providers of services …”. In addition DHBs are obliged to monitor the delivery and performance of services provided (s23(i)). We can see nothing in this Act which suggests a different approach to that suggested above.

18 It is our opinion that limiting the number of caesareans performed to only those which are clinically indicated is not only legally and ethically appropriate, but is the correct approach having regard to the resources that are available.

Should DHBs agree with this advice we suggest DHBs make their policy clear to all those performing caesareans in its hospitals. We hope that the above will be of assistance to you. Should you have any further queries, please do not hesitate to contact the writer. Thank you for your instructions.

Yours faithfully

MEREDITH CONNELL

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