doctors are concerned with a person unable to make the necessary decision for
himself.' [38]These observations of Lady Butler Sloss are interesting. However ,is it the case that
one overarching principle should be applied or do different considerations apply
in the context of the incompetent adult to those that apply in relation to a child
patient? There has been much cross-reference between cases concerning children
and mentally incompetent adults at the end of life [39]. However ,treatment
decisions regarding vulnerable adults were notably the subject of considerable
separate ?and indeed extensive) consideration by the Law Commission in their
report on mental incapacity. The complexities of such issues are excellently
highlighted in that report. It is suggested that before the application of the best
interest tests are further conflated the whole question of the interrelationship
between treatment decisions of incompetent minors and adults requires reconsi-
deration.
The Court of Appeal held that the treatment was in MB's best interests in this
emergency situation. But in whose best interests was this procedure? The Court of
Appeal took into consideration the fact that agreement had initially been given by
MB for the caesarean section. Furthermore ,evidence from the consultant psy-
chiatrist was to the effect that if the child had been born handicapped or had died,
MB herself would have suffered long-term harm. In contrast little harm would be
caused by the administration of the anaesthetic against her wishes.
What of the interrelationship between the best interests of both the fetus and the
woman? The Court of Appeal upheld earlier cases such asRe F in utero)?1988),
Patonv.British Pregnancy Advisory Service?1978) in confirming that the fetus has
no independent status in English law. They were of the view that Sir Stephen
Brown inRe Shad reached an incorrect conclusion. The Court of Appeal stated
that:
`Although it may seem illogical that a child capable of being born alive is pro-
tected by the criminal law from intentional destruction ,and by the Abortion Act
from termination otherwise than as permitted by the Act ,but is not protected
from the ?irrational) decision of a competent mother not to allow medical
intervention to avert the risk of death ,this appears to be the present state of the
law.' [40]Thus even at the point of birth itself the court could not intervene in the face of
refusal of medical intervention by a competent woman with the aim of safe-
guarding the position of the fetus. The English courts may consider such future
decisions in the light of Article 2 of the European Convention of Human Rights.
However ,the weight of authority makes it questionable whether a different
approach will be taken.
Re MBalso recognises that there may be circumstances ?beyond the Mental
Health Act 1983) when the use of forcible treatment may be justifiable. Lady Butler
Sloss stated that:
`The extent of force or compulsion which may be necessary can only be judged
in each individual case and by the health professionals. It may become for them
abalance between continuing treatment which is forcibly opposed and deciding108 Nursing Law and Ethics