Three and a half years after the original publication of this article, the right to choose a caesarean section remains one of the most common enquiries we receive at Birthrights.
Today we are launching a campaign asking you to help us identify Trusts who have a public policy of not offering caesareans unless there is a medical indication, contrary to NICE guidance and their duties under human rights law.
NHS Trusts are under pressure to reduce their caesarean section rate and there are good public health reasons for this. However in their quest to meet targets some Trusts appear to be abandoning their duty to consider cases on an individual basis and to act in accordance with NICE guidelines unless they have good, necessary and proportionate reasons. Any blanket policy not to offer elective caesareans without a medical reason is unlikely to be lawful and the fallout is felt by the very small percentage of women who, even with support, feel incredibly distressed about the idea of a vaginal birth. The reasons cited by women trying to access caesareans for non-medical reasons include physical damage from a previous vaginal birth, extreme fear of childbirth, emotional trauma after a previously difficult birth or experience of sexual violence or other violent trauma.
Birthrights wants to hold to account Trusts that do not give women the individual consideration and respect they are entitled to, and we need your help. Have you been denied a caesarean yourself? Do you know if a Trust that states publicly that it does not offer elective caesareans for no medical reason? Then do email us today at email@example.com so that we can write to that Trust and explain to them their obligations under human rights law.
This article explains a woman’s rights to choose an elective caesarean:
A human rights-centred approach
Birthrights is regularly asked whether women are legally entitled to a cesarean section. The question is asked both by women who seek an elective c-section and by healthcare professionals who wish to understand their obligations towards women who choose c-sections.
While women have no statutory entitlement to any particular type of maternity care in the UK, the decisions of healthcare professionals about the care that they give to women must be lawful. That means decisions must be taken in accordance with the general principles of the law, and where the care is provided by the NHS, that includes the principles of public and human rights law.
It goes without saying that a decision not to perform a c-section where it is clinically necessary to avoid harm to mother or child could lead to a retrospective claim for damages for clinical negligence. Where there is a threat to the life of mother or child, hospitals and individual clinicians are obliged to take steps to save life under Article 2 of the European Convention on Human Rights, enacted in UK law by the Human Rights Act 1998. But these are not the concerns of mothers who request a c-section when there is no immediate clinical necessity for the operation.
The right to an informed choice
Women have a right to make choices about the circumstances in which they give birth. This simple but powerful principle was established by the European Court of Human Rights in Ternovszky v Hungary (2010) under the right to private life in Article 8 of the European Convention which encompasses rights to physical autonomy and integrity. Article 8 is a ‘qualified right’ and so limitations on the right are permitted. The Ternovszky case concerned the right to give birth at home, but the principle applies equally to all choices that women make about childbirth. The decision represents a profound challenge to medical authority: if women have a legal right to make a choice, any limitation on that right must be justified. The decision-maker, whether a hospital or a doctor or midwife, must give proportionate reasons for their decision based on the individual circumstances of the woman and their reasons can be tested in court before a judge.
A reasonable request
To take the experiences of a number of women who have contacted Birthrights, if a women requests a c-section after a previous traumatic vaginal birth and explains to her midwife and obstetrician that she is afraid of giving birth vaginally again, the reasons given to her for refusing to offer a c-section can be scrutinised and balanced against her reasons for requesting a c-section. A court has not considered this sort of case before (and it seems unlikely that a case would reach court given the cost of litigation versus the much lower cost of simply providing the surgery), but a judge would undoubtedly take into account the serious effects of refusing the operation on the mother alongside obstetric risk as assessed by the doctor and, potentially, the financial cost of a c-section.
Some cases would be stronger than others. As recent research by the Royal College of Obstetricians and Gynaecologists revealed, in some UK hospitals women have a 40% chance of an emergency c-section after an induction. If a woman requests a c-section in order to avoid the induction process and the high odds of an emergency c-section or instrumental birth, and consequent potential trauma, a decision to refuse to perform the operation might be hard to justify. (And, of course, a failure to explain the likelihood of a c-section in these circumstances disables the woman’s ability to make an informed choice and casts doubt on her consent to the induction.)
We are often asked whether NICE guidelines have legal force to compel a doctor to provide a c-section. The NICE guideline on elective c-sections without a clinical indication states that women ought to be offered a c-section after discussion and an offer of mental health support. NICE guidelines are not legally binding on medical professionals. However, where a decision is made to depart form a guideline, reasons need to be given and exceptions considered in each individual case.
With thanks to RightsInfo who re-published this article last week to mark International Week for Respecting Childbirth