Today’s correspondent is a paramedic who raises the issue of a pregnant woman’s right to make health care decisions that may affect the unborn baby. They have in mind a situation where:

Paramedic crew are on scene with a female patient; full term waters broken and in labour. Patient is a chronic drug addict. She is refusing transport until she can secure a supply of drugs. She is agitated and non-compliant and obviously in labor. Birth is not imminent, but she is well on the way.

Q1:       Is there a duty of care to the unborn child?

Q2:       Can the mother be considered lacking in capacity of she is a; on drugs or b: hanging out for drugs and in an obsessed state of mind?

Q3:       If she is not deemed sectionable under Section 20, can the Police schedule her as she is threatening the safety and life on the unborn child?

Q4:       Can the patient be forced to go to hospital on the grounds her child will require resuscitation once it is born and the likelihood of mother calling ambulance for help after delivery low?

Q5:       Could you argue there is a lack of capacity if the mother fails to comprehend the urgency and seriousness of delivering the baby unassisted?

It is critical in this story that we’re told that she is refusing transport in order to secure drugs, not that she is currently affected by drugs.

In Collins v Wilcock [1984] 3 All ER 374 Lord Goff said ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery…’ It is the patient’s consent that converts what would otherwise be a battery into lawful touching. That doesn’t change just because the person is a pregnant woman whether she is 2 weeks or 40 weeks pregnant.

Q1:       Is there a duty of care to the unborn child?

A child is not a person in the eyes of the law until it has been born.  In R v Hutty [1953] VR 338 Barry J said:

… legally a person is not in being until he or she is fully born in a living state. A baby is fully and completely born when it is delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother. It is not material that the child may still be attached to the mother by the umbilical cord; that does not prevent it from having a separate existence. But it is required … that the child should have an existence sperate from and independent of its mother, and that occurs when the child is fully extruded from its mother’s body and is living by virtue of the functioning of its own organs.

In Opbroek by her next friend Crittall v Australian Capital Territory [2016] ACTSC 64 Mossop AsJ said (at [27]):

In Watt v Rama [1972] VicRp 40; [1972] VR 353 (Watt), a Full Court of the Supreme Court of Victoria held that a plaintiff, who at and after birth suffered injuries caused by the negligent driving of the defendant prior to the plaintiff’s birth, had a cause of action in negligence against the defendant in respect of those injuries. That decision resolved some uncertainty about the state of the law in Australia and has been accepted since as stating the common law: X and Y (By her tutor X) v PAL (1991) 23 NSWLR 26; Lynch v Lynch (1991) 25 NSWLR 411; Ren v Mukerjee (unreported, Supreme Court of the ACT, 12 December 1996, 5-6); Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1, 146 [407]; Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52, 74 [66], 106 [176], 128 [257]; Laws of Australia [33.2.1380]. In reaching that decision, the Court rejected the submission that the defendant did not owe to the plaintiff prior to her birth any duty because she was not then a human being. The conclusion reached in Watt is the foundation for a cause of action such as that in the present case, where conduct of a defendant in relation to the pre-natal period is relied upon to give a cause of action to a child who has been born alive.

And at [30]:

The significant point about these judgments is that they emphasise that the injury upon which the plaintiff is entitled to sue is that which occurs at birth, at the point where the plaintiff suffers those injuries as a human being and not before. Any damage pre-birth is not an independent element of the cause of action but, merely an evidentiary fact relevant to the issue of causation.

It follows that there is a duty to the unborn child, but the duty is a duty not to cause injury, it is not a duty to prevent injury (Stuart v Kirkland-Veenstra [2009] HCA 15). (Whether the mother owes a duty to her unborn child is more problematic (see Anna Walsh ‘Can there be a positive maternal duty of care to the unborn in Australia?’ (2009) 95 Precedent 35-38 and Christina Do and Jackie Mapulanga-Hulston ‘The Ethical and Legal Conundrum: Should a Mother Owe a Duty of Care to her Unborn Child?’ Curtin University) but we need not address that here as the question we’re addressing is the paramedic’s duty.)

If the paramedic does owe a duty to the unborn child, it is a duty to do what is reasonable in all the circumstances which must include reference to the paramedic’s authority and the mother’s right to choose.  The paramedic’s duty may be a duty to warn the mother if, in the paramedic’s opinion, the clinical indications are that the mother or baby are at risk and need transport to hospital or that taking drugs at this stage poses a risk to the baby. But the duty cannot be a duty to take the mother into custody or otherwise apply force to her.  In another context French CJ said ‘The case for a duty of care depended upon the existence of the power to apprehend. That power did not exist in this case’ (Stuart v Kirkland-Veenstra [2009] HCA 15, [5]). In that case Victoria Police could not have had a duty to detain Mr Veenstra because they had no power to detain him.

A lawful power to do something may give rise to a duty to exercise that power. A duty of care on the other hand, does not give rise to a power or authority to do something and in particular it does not allow someone to do something that would otherwise be illegal such as assaulting someone (see Publication on detaining patients in the ED (August 29, 2023); No power to detain a patient just because it’s good for them (January 22, 2023) and Relying on the concept of ‘duty of care’ to impose treatment on the unwilling (September 30, 2020)).

For all practical purposes, particularly in the context of this question, we can say that there is no duty to the unborn child. There is certainly no duty that could justify treating the woman without her consent or forcing her to go to hospital.

Q2:       Can the mother be considered lacking in capacity of she is a; on drugs or b: hanging out for drugs and in an obsessed state of mind?

Whether a person lacks capacity or not is a question of fact.  It is not a conclusion or axiomatic consequence of a particular situation. The mother is competent if she:

… is able to:

  • Understand the information relevant to the decision and the effect of the decision; and
  • Retain that information to the extent necessary to make the decision; and
  • Use or weigh that information as part of the process of making the decision; and
  • Communicate the decision, including by speech, gesture or other means.

A person is presumed to have decision-making capacity unless there is reasonable evidence to the contrary… (Kelly, A.-M., Eburn, M., Cockburn, T. and Senthi, A. (2023), Review article: Detaining patients against their will: Can duty of care be used to justify detention and restraint in emergency departments? Emergency Medicine Australasia https://doi.org/10.1111/1742-6723.14299).

Just because she is a drug user or ‘hanging out for drugs’ does not mean that she is not competent.  A paramedic would have to ask the questions they normally ask and do the assessment they normally do to determine if the patient is competent. A patient may well understand the advice that she should go to hospital and not take drugs, but she better than the paramedics may also understand her need for drugs.

She may or may not be competent, her competence may or may not be affected by drugs or her need for drugs but it is not axiomatic and you cannot just assume a lack of competence simply because the patient has taken drugs or is ‘hanging out’ for drugs.

An ethical, professional paramedic has to assess their patient’s competence without judging their decision either to refuse treatment or take drugs.  The paramedic is there to treat this patient and to assess this patient’s competence. Greater care needs to be taken to assess competence where the paramedic thinks the patient is making, or has made, a poor choice to avoid substituting the paramedic’s decision for the patient’s.

Q3:       If she is not deemed sectionable under Section 20, can the Police schedule her as she is threatening the safety and life on the unborn child?

Section 20 of the Mental Health Act 1987 (NSW) provides that an ambulance officer who believes a person is mentally ill or mentally disordered may take that person to a declared mental health facility to be dealt with in accordance with the Act.  First it does not seem that in this case the paramedics want the person to be dealt with under the Act (save that if she is detained as an involuntary patient, a doctor may consent to any necessary surgical procedure (s 99) but there is nothing to suggest that a childbirth necessarily requires emergency surgery). 

In any event to be mentally ill a person must be suffering from a mental illness (s 14) that is

… a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms–

(a) delusions,

(b) hallucinations,

(c) serious disorder of thought form,

(d) a severe disturbance of mood,

(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).

A person is not to be taken to mentally ill or mentally disordered just because they have taken any alcohol or other drugs (s 16).  Just because a person is a drug addict refusing medical care does not mean they are mentally ill.

A person is mentally disordered (s 15) if their:

… behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary–

(a) for the person’s own protection from serious physical harm, or

(b) for the protection of others from serious physical harm.

Demanding drugs by a drug addict may not be irrational. Wanting to take her into care for the baby’s benefit does not fit s 15(b) as the baby is not yet born and not therefore a separate person.

I agree that on the scenario given the person could not be ‘taken’ into care under s 20.

So, can the Police schedule her as she is threatening the safety and life on the unborn child? The police power is in s 22. It says

A police officer who, in any place, finds a person who appears to be mentally ill or mentally disturbed may apprehend the person and take the person to a declared mental health facility…

Again on the story given you would not assume that the person is either mentally ill or mentally disturbed in which case the police have no power to ‘schedule’ her any more than the paramedics do.

Police cannot, generally, take someone into ‘protective custody’ whether it is for the person or some other person’s benefit.   Police can take an intoxicated person found in a public place into protective custody (Law Enforcement (Powers and Responsibilities Act) 2002 (NSW) s 206)) but on the story we’re given the patient is not intoxicated even if she wants to be.  And if she’s in her own home she’s not in a public place.

No, If she is not ‘sectionable’ under Section 20, the Police cannot schedule her just because she is threatening the safety and life on the unborn child.

Q4:       Can the patient be forced to go to hospital on the grounds her child will require resuscitation once it is born and the likelihood of mother calling ambulance for help after delivery low?

We’re not told why the woman should go to hospital – Birth is not imminent, but she is well on the way. Women have been giving birth forever.  They can refuse care for any reason or for no reason.

A patient cannot be ‘forced to go to hospital on the grounds her child will require resuscitation once it is born and the likelihood of mother calling ambulance for help after delivery low’.

Q5:       Could you argue there is a lack of capacity if the mother fails to comprehend the urgency and seriousness of delivering the baby unassisted?

The test for competency was given in answer to q. 2 above. To be competent she must be able to ‘Understand the information relevant to the decision and the effect of the decision’ and be able to ‘Use or weigh that information as part of the process of making the decision’.  She doesn’t have to come to the decision the paramedics think is a reasonable decision.  She doesn’t even have to use or weight the information, the issue is whether she can do those things, not whether she did (see PBU & NJE v Mental Health Tribunal [2018] VSC 564 discussed in the post Victorian decision on refusing medical treatment – reviewing the principles (November 24, 2018) where I said:

The appropriate test for capacity, both at common law and under the Victorian legislation, is a functional test, that is the question is ‘whether, at the time the decision had to be made, the person could understand its nature and effects’.  It is not an outcome test that is whether it is a good or wise decision.

The given facts beg the question of ‘what is the urgency and seriousness of is delivering the baby unassisted as many healthy babies have been born that way?’  It may be that the mother’s drug use means the baby will be at greater risk of being born in poor condition but is that, at this stage, an emergency? 

And the patient is not unassisted, paramedics – registered health professionals are there – if the patient doesn’t want transport to hospital what’s to stop the paramedics staying and assisting with the delivery?  Paramedics owe a duty of care to their patient and the duty is not ‘take it or leave it’. Today paramedics are more than just stretcher bearers whose only tool in the toolbox was to drive the patient to hospital.  The duty a paramedic owes their patient is a duty to act reasonably in all the circumstances and that can, and we know at times must, mean helping women to deliver their babies.  Is it reasonable in this case to stay with the patient?

A counterpoint

Imagine the same scenario but the woman is not a drug addict. No-one would suggest a women in labour could be forced by paramedics to go to hospital if she did not want to no matter how much the paramedics thought she should.  That is what respect for patient autonomy is all about.

In PBU & NJE v Mental Health Tribunal [2018] VSC 564, Justice Bell quoted both Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871 where Lord Templeman said:

Where the patient’s health and future are at stake, the patient must make the final decision. The patient is free to decide whether or not to submit to treatment recommended by the doctor… if the doctor making a balanced judgment advises the patient to submit to the operation, the patient is entitled to reject the advice for reasons which are rational, or irrational, or for no reason. The duty of the doctor in these circumstances, subject to his overriding duty to have regard to the best interests of the patient, is to provide the patient with information which will enable the patient to make a balanced judgment if the patient chooses to make a balanced judgment.

And Malette v Shulman (1990) 67 DLR (4th) 321 where Robins, Catzman and Carthy JJA said:

The right of self-determination which underlies the doctrine of informed consent also obviously encompasses the right to refuse medical treatment. A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death and may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor’s opinion, it is the patient who has the final say on whether to undergo the treatment … for this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others …

In her article ‘Can there be a positive maternal duty of care to the unborn in Australia?’ Anna Walsh says:

In the case of In re F (in utero), the English Court of Appeal was required to determine whether a foetus could be made a ward of the state on the grounds that the behaviour of the pregnant woman was endangering the foetus. The pregnant woman was mentally disturbed and led a nomadic existence and local authorities held fears for the safety of the child once born and wanted her found and admitted to a hospital. She was 36 years old and had another child, aged 10, who had been made a ward of the state. The court held that as a foetus at whatever stage of development has no existence independent of its mother, the court cannot exercise its rights, powers and duties of a parent over the foetus without controlling the actions of the pregnant woman. Accordingly, the court could not extend its jurisdiction over minors to a jurisdiction over a mother for the protection of the unborn child, which had no legal rights for existence.

The fact that a person is pregnant does not mean they are not competent and that they cannot make decisions about their own health care regardless of the impact it may have on their unborn child. If the courts cannot compel a woman to undergo treatment or exercise a protective jurisdiction over the unborn, neither can a paramedic.

Conclusion

The fact that a person is both pregnant and a drug addict does not mean they are not competent.  If they are competent and not mentally ill they can refuse care no matter how much the treating health care practitioners think that is a poor choice. The answers to the questions are:

Q1:       Is there a duty of care to the unborn child?

Yes but it is a duty not to cause harm, not a duty to prevent harm. The duty also has to be understood as the duty to do what one can reasonably do. One cannot do what one has no authority or power to do. There is no duty to act illegally or to force care upon the mother for the baby’s benefit as that would conflict with the duties owed to the mother.

Q2:       Can the mother be considered lacking in capacity of she is a; on drugs or b: hanging out for drugs and in an obsessed state of mind?

No. She may be lacking capacity but that cannot be inferred by her status as a drug user. That has to be assessed as it does with every patient.

Q3:       If she is not deemed sectionable under Section 20, can the Police schedule her as she is threatening the safety and life on the unborn child?

No.

Q4:       Can the patient be forced to go to hospital on the grounds her child will require resuscitation once it is born and the likelihood of mother calling ambulance for help after delivery low?

No.

Q5:       Could you argue there is a lack of capacity if the mother fails to comprehend the urgency and seriousness of delivering the baby unassisted?

The answer is the same as the answer to q. 2. Capacity has to be assessed in each case.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.