THE HOSPITAL AUTHORITY v. C

HCMP 479/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.479 OF 2003

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J U D G M E N T

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Introduction

1. On Friday, 31 January of this year, the first day of the Lunar New Year holidays, an urgent application was made to me by the Hospital Authority for a declaration to authorise doctors at the Prince of Wales Hospital to carry out an emergency caesarean section on a patient whom I will refer to as Madam C.

2. The application was made on the basis that Madam C, who was in a deep coma, was incapable of giving or withholding her consent, but that the court, in the exercise of its inherent jurisdiction, had the power to make a declaration that the operation (which would result in the birth of her child) could lawfully take place if it was shown to be in her best interests.

3. What made an unusual application unique was that Madam C's husband, the father of the unborn child, while he did not object to a caesarean section being performed in or about 10-14 days time, objected strongly to it being carried out immediately. He objected because his spiritual guide, a person who was not named but in whom the husband clearly had the deepest faith, had urged that, to ensure the health of both mother and child, the operation be delayed. Time was required, it appears, to bring together metaphysical healing powers.

4. Because of the urgency of the matter and the fact that the holiday period had commenced, there was regrettably no opportunity for Madam C to be represented by a guardian ad litem or a guardian appointed in terms of the Mental Health Ordinance, Cap.136. The husband, however, had been notified and he was able to attend the hearing.

5. I was satisfied that a reasonable body of medical opinion skilled in matters relevant to the mother and her unborn child had demonstrated that the proposed operation was in the best interests of Madam C and that it was necessary to proceed with the operation as one of urgency. I therefore granted the declaration that was sought, saying that I would give my reasons in full at a later date. My reasons are contained in this judgment.

6. I am told that having made the declaration, the caesarean operation did take place and a physically healthy child, a girl, was born.

The background

7. On 8 September of last year, Madam C (who was 31 years of age) was admitted to the Intensive Care Unit of the Prince of Wales Hospital. She had suffered a massive intracranial haemorrhage. As a consequence, she sustained irreversible brain damage and became deeply unconscious, dependent for life on a ventilator and the skills of the physicians and staff who attended upon her.

8. It was known, however, that Madam C was pregnant. The husband was consulted. Even though warned of what Professor Gavin Joynt, Director of the Intensive Care Unit at the Prince of Wales Hospital, warned was a 'probable poor foetal outcome' he was strongly in favour of Madam C's life support systems being maintained until the foetus became viable and the child could be delivered. It was his stated opinion at that time that his wife would also have wished her life support systems to be continued until the foetus was viable; if her life was forfeit, let her child at least have a future.

9. Medically, there were few precedents for the proposed course of action. However, senior representatives of neurosurgery and obstetrics were consulted together with professional personnel attached to the Intensive Care Unit and it was agreed that an attempt should be made to maintain Madam C on her life support systems so that the foetus would have the chance to grow to viability. The decision was made not only because it was considered medically possible, even if it would perhaps extend the frontiers of experience in this field, but because, having regard to what the mother's wishes would have been, it was believed to be in her best interest to sustain her life with the intention of delivering a child.

10. Accordingly, through the months of September, October, November and December 2002 and into January 2003, Madam C was kept on advanced life support systems at the Prince of Wales Hospital, she and the foetus being constantly monitored.

11. During this time, the husband, who had not previously been a member of any formal religious group, began to consult and increasingly to accept and rely upon the advice of a person whom I have described as his spiritual guide. The husband has called him 'his master'. The spiritual guide assured the husband that, despite the perhaps pessimistic prognosis of the doctors, both mother and child would be well. But it followed, of course, that his guidance as to the gathering of spiritual forces had to be followed.

12. There is a sad irony in the fact that the longer the medical team at the Prince of Wales Hospital, through the use of their scientific methods, kept Madam C alive and the foetus growing towards full term, the more profound grew the husband's belief in his spiritual guide : the one who had told him all would in fact be well.

13. In or about late January of this year, that irony manifested itself in direct conflict. Madam C's survival and that of the foetus had been achieved with some difficulty. As Professor Joynt expressed it, she had suffered "multiple infections and other physiological and metabolic complications associated with prolonged life-support in the presence of such severe cerebral damage". However, the pregnancy had now reached 32 weeks. As Professor Tam Wing Hung, an associate professor in the Department of Obstetrics and Gynaecology at the Chinese University of Hong Kong and Dr Cheung Tak Hong, the Acting Chief of Service of the Department of Obstetrics and Gynaecology at the Prince of Wales Hospital, said in a joint statement, the survival rate of an otherwise healthy baby delivered at 32 weeks of gestation is well above 90%. Once the pregnancy has passed beyond 32 weeks, any prolongation of gestation age does not improve the foetal outcome significantly. In short, the time had arrived when delivery by caesarean section was fully viable.

14. The operation, however, had to be carried out without delay. The mother's condition was growing increasingly unstable and that instability directly threatened the child. In their joint statement, Professor Tam and Dr Cheung summarised the clinical situation in the following terms :

"1. The foetus has severe oligohydramnios (reduction in amniotic fluid) throughout the pregnancy and this is a sign suggesting a compromised intra-utero environment.

2. The foetus has been growing along the third percentile throughout the pregnancy till 30 weeks and ultrasound scan performed two days ago did not show further growth of the foetus.

3. There are frequent episodes of hypotension since 31 weeks gestation that requires drug support.

4. Recently, the mother has also been found to have abnormally high blood calcium level and this could have detrimental effect to the foetus."

15. The two doctors concluded that, because of "intrauterine growth restriction and maternal metabolic disturbance" it was essential that a caesarean section be performed without delay. Indeed, the opinion generally of the doctors who appeared at the hearing was that each day of delay would further endanger the child; the longer the delay, manifestly the greater the danger. If there was a delay of the kind that the husband sought, even if the child was born alive, the prognosis for its future quality of life was bleak.

16. However, the husband, who impressed me as a man of considerable dignity and fortitude, strongly opposed what he believed to be a premature delivery. As I have earlier said, the husband had been told by his spiritual guide that further time was needed to marshall spiritual healing powers and it was therefore essential that the birth be delayed at least until 10 February. Just as the doctors sought the earliest possible delivery for the welfare of the child, the husband was convinced that only a further delay would ensure that same welfare for both mother and child.

The jurisdiction of the court and the principles on which it should be exercised

17. In tragic circumstances of this kind, with the mother so severely brain damaged and the life of an unborn child at stake, it is perhaps natural to go directly to the interests of that unborn child in the belief that those interests must decide the issue. But that is not the common law. Nor is it the law of statute. The law, as I understand it, is that a foetus, up to the moment of birth, does not have any separate interests capable of being taken into account by a court considering an application to perform a caesarean section on a pregnant woman carrying the foetus. In short, a court does not have jurisdiction to declare medical intervention lawful solely to protect the interests of an unborn child.

18. What the court must look to are, first, the wishes of the mother and, if the mother is incapable of making any such wish, then, and only then, to the mother's best interests. In Re MB 38 BMLR 175, at 193, Butler-Sloss LJ, giving the judgment of the Court of Appeal, said the following :

" The law is, in our judgment, clear that a competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though, as we have already stated, the consequence may be the death or serious handicap of the child she bears or her own death ... The foetus, up to the moment of birth, does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarian section operation. The court does not have the jurisdiction to declare that such medical intervention is lawful to protect the interests of the unborn child even at the point of birth."

19. But this does not mean that a foetus is to be treated as simply an integral part of the mother, as integral to her as any other organ of her body : a kidney or limb. In Attorney-General's Reference (No.3 of 1994) [1998] AC 245, at 255, Lord Mustill accepted that the foetus is a unique organism, albeit living symbiotically :

"There was, of course, an intimate bond between the foetus and the mother, created by the total dependence of the foetus on the protective physical environment furnished by the mother, and on the supply by the mother through the physical linkage between them of the nutrients, oxygen and other substances essential to foetal life and development. The emotional bond between the mother and her unborn child was also of a very special kind. But the relationship was one of bond, not of identity. The mother and the foetus were two distinct organisms living symbiotically, not a single organism with two aspects. The mother's leg was part of the mother; the foetus was not ... I would, therefore, reject the reasoning which assumes that since (in the eyes of English law) the foetus does not have the attributes which make it a 'person' it must be an adjunct of the mother. Eschewing all religious and political debate I would say that the foetus is neither. It is a unique organism. To apply to such an organism the principles of a law evolved in relation to autonomous beings is bound to mislead."

20. That recognition, of course, makes the moral dilemma greater. It is a dilemma which has taxed a number of courts in the common law world. In the Canadian decision of Winnipeg Child and Family Services (Northwest Area) v. G [1997] 3 BHRC 611, in a dissenting judgment, Major J was forced to state that :

" ... where the harm is so great and the temporary remedy so slight, the law is compelled to act ... Someone must speak for those who cannot speak for themselves."

21. Judge LJ, in the Court of Appeal judgment in St.George's Healthcare N.H.S. Trust v. S .Regina v. Collins and Others, ex parte S [1998] 3 WLR 936, at 953, recognised that when human life is at stake the pressure to provide an affirmative answer authorising unwanted medical intervention is very powerful. But he recognised that the fundamental principle that has prevailed and must continue to prevail (unless the legislature otherwise directs) is that of the mother's right to self-determination. He said :

" In our judgment, while pregnancy increases the personal responsibilities of a woman it does not diminish her entitlement to decide whether or not to undergo medical treatment ... She 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."

22. In my judgment, in respect of a competent woman, this is at present the law in Hong Kong. But what if the woman as in the present case is not competent? What if she is incapable of giving or withholding consent because she has no capacity to do so? In such a case, the woman may lawfully be treated by a doctor provided, in accordance with the doctor's clinical judgment, it is considered to be in the patient's best interests. That this is so in common law has been established by a number of high authorities. For example, in F v. West Berkshire Health Authority and another (Mental Health Act Commission intervening) 4 BMLR 1, a 1989 decision of the House of Lords, the headnote reads (in part) :

" The court did have jurisdiction [an inherent jurisdiction] ... to make a declaration that the proposed operation was lawful on the ground that in the circumstances it was in the best interests of the patient, and although (Lord Griffiths dissenting) such a declaration was not necessary to establish the lawfulness of the operation, because a doctor could lawfully operate on such a patient if it was in her best interests, in practice the court's jurisdiction should be invoked whenever it was proposed to perform such an operation, since a declaration would establish by judicial process whether the proposed operation was in the best interests of the patient and therefore lawful. In determining whether the proposed operation was in the best interests of the patient the court should apply the established test of what would be accepted as appropriate treatment at the time by a reasonable body of medical opinion skilled in that particular form of treatment."

23. The Mental Health Ordinance also recognises the lawfulness of treatment taken in the best interests of a patient who is incapable of giving or withholding consent. S.592F of the Ordinance states :

" (1) Treatment by a registered medical practitioner or registered dentist may be carried out in respect of a mentally incapacitated person to whom this Part applies without consent ... if that registered medical practitioner or registered dentist intending to carry out or supervise the treatment considers that as a matter of urgency that treatment is necessary and is in the best interests of the mentally incapacitated person.

(2) Subject to subsection (3), treatment by a registered medical practitioner or registered dentist may be carried out in respect of a mentally incapacitated person to whom this Part applies without consent under section 59ZD(1) if-

(a) after all reasonably practicable steps have been taken by that practitioner or that dentist to ascertain whether or not a guardian has been appointed under Part IIIA or IVB responsible for that person, there is, or appears to be, no guardian so appointed; or

(b) the guardian appointed under Part IIIA or IVB has not been conferred the power to consent in a guardianship order under section 44B(1)(d) or 59R(3)(d).

(3) Where a registered medical practitioner or registered dentist intending to carrying out or supervise the treatment under subsection (2) considers that that treatment is necessary and is in the best interests of the mentally incapacitated person, then he may carry out that treatment without the consent of the mentally incapacitated person or that persons' guardian (if any) accordingly."

[my emphasis]

24. The 'best interests' of a mentally incapacitated patient are defined in s.59ZA of the Ordinance as the carrying out of treatment in order to

"(a) save the life of the mentally incapacitated person;

(b) prevent damage or deterioration to the physical or mental health and well-being of that person; or

(c) bring about an improvement in the physical or mental health and well-being of that person."

25. The term 'well-being' used in the definition is a broad, inclusive term and, in my judgment, concurs with the meaning given in the common law to the 'best interests' of a patient. In common law, the best interests of a patient are not limited solely to best medical interests : see Re MB (supra) at 188. Nor are best interests limited solely to what is necessary : see F v. West Berkshire Health Authority (supra) at 26. In considering the scope of best interests, the two authorities to which I have just referred have concluded that they are to be determined on similar principles to the welfare of a child since the doctors and the court are concerned with a patient unable to make the necessary decisions for himself or herself.

26. In seeking the best interests of a patient, Lord Goff in F v. West Berkshire Health Authority (supra) at 27, commented that the doctors must act in accordance with a responsible and competent body of professional opinion. But, in emphasing the broader nature of 'best interests', Lord Goff went on to say :

" No doubt, in practice, a decision may involve others besides the doctor. It must surely be good practice to consult relatives and others who are concerned with the care of the patient. Sometimes, of course, consultation with a specialist or specialists will be required; and in others, especially where the decision involves more than a purely medical opinion, an inter-disciplinary team will in practice participate in the decision."

27. In the present case, in looking to the best interests of Madam C, the doctors wisely consulted with the husband and it is apparent that they paid as much heed to his views as their professional wisdom would allow. But that is not to say that the husband had any legal authority to dictate what should or should not happen to his wife or the unborn child.

28. In Paton v. British Pregnancy Advisory Service Trustees [1978] 2 All ER 987, a case in which a husband made an unsuccessful attempt to obtain an injunction in the High court to restrain the carrying out of an abortion on his wife, Sir George Baker P said :

" The first question is whether this plaintiff has a right at all. 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. That permeates the whole of the civil law of this country (I except the criminal law, which is now irrelevant), and is, indeed, the basis of the decisions in those countries where law is founded on the common law, that is to say, in America, Canada, Australia, and, I have no doubt, in other."

29. In In re T (Adult : Refusal of Treatment) [1992] WLR 782, at 787, Lord Donaldson MR spoke plainly of the lack of legal rights vested in next of kin, very often the husband :

" There seems to be a view in the medical profession that in such emergency circumstances the next of kin should be asked to consent on behalf of the patient and that, if possible, treatment should be postponed until that consent has been obtained. This is a misconception because the next of kin has no legal right either to consent or to refuse consent."

However, he went on to make the practical observation

"This is not to say that it is an undesirable practice if the interests of the patient will not be adversely affected by any consequential delay. I say this because contact with the next of kin may reveal that the patient has made an anticipatory choice which, if clearly established and applicable in the circumstances two major 'ifs' would bind the practitioner. Consultation with the next of kin has a further advantage in that it may reveal information as to the personal circumstances of the patient and as to the choice which the patient might have made, if he or she had been in a position to make it."

The reasons for my decision

30. In the present case it was not in any way disputed that Madam C, having sustained severe cerebral damage and being in a deep coma, was incapable in any way of either giving or withholding her consent to the caesarean operation. That being the case, it was necessary to look to the best interests of Madam C. Those best interests were not limited simply to what was necessary to keep her clinically alive but embraced a broader range of factors, especially what she herself would have wished.

31. In or about September of last year, the husband had said that his wife would have wished to be kept on life support so that her child may be born healthy. That indeed, over the following weeks, had been the driving motive for the undoubted skill and care exercised by the medical team. Manifestly, in my view, in the circumstances it was in the best interests of the patient that an operation take place to try and ensure that a healthy child was born.

32. Aside from all other imperatives, not to have acted risked the death of the child and a foetus without life lying in the womb of the mother could not, by any reckoning, be considered to be in her interests.

33. I granted a declaration not because the mother and foetus were one and what was for the benefit of the foetus had to be for the benefit of the mother. I granted the declaration because they were not one, because the foetus was a unique organism having the potential for a full and independent life, because, on the evidence available, the mother's wish, if she had been able to express it, would have been to deliver into the world a healthy child and, in all the circumstances, that clearly was in her best interests.

34. In In re MB (supra), at 188, Butler-Sloss LJ, a jurist of the highest repute in these difficult matters, adopted similar reasoning :

" It is clear on the evidence that the mother and the father wanted this child to be born alive ... It must be in the best interests of a woman carrying a full-term child, whom she wants to be born alive and healthy, that such a result should if possible be achieved."

35. As for the husband, while I took full note of his deeply held beliefs and while I sympathised with the anguish he was experiencing, it had to be accepted that he had no legal right to object and to have that objection upheld.

36. The body of medical opinion that was placed before me, opinion which I accepted as being entirely reasonable, was to the effect that it was critically important that a caesarean section take place without delay.

37. If there had been more time, ideally, I would have wished to hear from a guardian ad litem or guardian appointed under the Mental Health Ordinance to speak for the interests of the wife. The Official Solicitor may fulfil that role. But time, in my view, did not allow for further delay. I therefore granted the declaration that had been sought.

38. I close by saying that I made the declaration in the exercise of the court's inherent jurisdiction in matters of this kind. S.59ZG of the Mental Health Ordinance makes provision for similar applications but, without in any way determining the matter, I was concerned as to whether, in the absence of the appointment of a guardian under the Ordinance, that section conferred jurisdiction upon me to authorise the particular treatment that was sought.