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Foreclosing the use of force: A.C. reversed.

William Carlos Williams relates how he once used force to pry open the mouth of a recalcitrant child who, he suspected, had diphtheria that could only be diagnosed by viewing her throat.(1) The little girl resists his coaxing, and when, with the father's help, he finally manages to jam the wooden tongue depressor between her teeth, the child opens her mouth just enough to crunch down on the blade to "reduce it to splinters." The doctor becomes furious with the child, whose mouth is now bleeding and who is "screaming in wild hysterical shrieks." But he knows he must see her throat for her own good, and it actually becomes "a pleasure to attack her ... The damned little brat must be protected against her own idiocy... " Using a metal spoon and all his strength, he overpowers the child "in a final unreasoning assault ..." He learns her secret: she has diphtheria.

We can agree that Williams lost control and brutalized his child patient, yet still sympathize with him. Diphtheria was a life-threatening disease, and the child could not make a competent decision to refuse to have the doctor look at her throat. Moreover, her parents were present, and consented to the entire proceeding. It was the means not the rationale that was wrong.

The Right Track

The use of force has little, if any, role in the practice of medicine, although it may sometimes seem necessary in treating children and mentally incompetent patients. The 1980s, a decade not known for its compassion, saw some physicians and judges moving beyond children and the mentally incompetent to encompass pregnant women in the group of patients for whom forcing compliance was sometimes seen as justifiable. The rationale was not that pregnant women were incompetent to make their own decisions, but rather that some of the decisions they made might take inadequate account of the possible consequences of those decisions on the soon-to-be-born child.

Although there have been dozens of lower court opinions involving attempts to force treatment, usually cesarean sections, on pregnant women, only two have reached appeals courts. The first, Jefferson v. Griffin Spalding Hospital Authority,(2) was at the beginning of the 1980s. The second opens the 1990s on an entirely different note and is the most important case to be decided in this area to date: the case of Angela Carder, known simply as In re: A.C..(3) This new en banc decision, issued by the District of Columbia Court of Appeals almost three years after the original hearing (and two years after the original three judge appeals decision was vacated), firmly reverses the original decisions (7 to 1) and sets forth the legal principles that should govern all doctor-patient relationships with pregnant patients: "We hold that in virtually all cases the question of what is to be done is to be decided by the patient-the pregnant woman-on behalf of herself and the fetus. If the patient is incompetent ... her decision must be ascertained through ... substituted judgment" (emphasis added).

Angela Carder was twenty-six-and-a-half weeks pregnant and near death from cancer when the hospital's lawyer decided to ask a judge to come to the hospital to tell the hospital what to do. The request was made because Angela's attending physicians had informed the hospital administrator that they intended to honor the patient's wishes to keep her comfortable while she died, and not perform an immediate cesarean section. The patient, all members of her family (her husband and her mother), and all her attending physicians agreed on this course of action. The issue at the hearing was not what Ms. Carder wanted, but centered instead on whether the state had a compelling interest sufficient to force immediate surgery for the sake of the fetus. Accordingly, the testimony focused on the likelihood of fetal survival if surgery were performed immediately, rather than waiting until after Ms. Carder died (she was expected to die within forty-eight hours in any event) to deliver the fetus. The trial court found that her fetus had a 50 to 60 percent chance to survive an immediate cesarean, and that delay would greatly increase the risk to the fetus.

The D.C. appeals court has now ruled that it was improper for the lower court judge to weigh the mother's interests versus the state's interest in the fetus to decide what to do. Instead, the appeals court concluded that the proper procedure would have been for the judge first to determine if Ms. Carder were competent (a step that would at least have required the judge to see Ms. Carder), and if she were competent, to permit her to make the decision herself The appeals court reached this conclusion because it could find no persuasive rationale to justify depriving women of their constitutional and common law rights as citizens because they become pregnant, carry a fetus to viability, or continue pregnancy with a terminal illness.

If the pregnant patient is incompetent, the trial judge is to determine what she would decide if she could decide, i.e., to apply the substituted judgment doctrine. To make this determination the judge should examine previous statements by the patient, the patient's value system, and what family members, loved ones, and even treating physicians think the patient would want.

Appeals courts cannot find facts, and this court accordingly did not determine what Ms. Carder wanted. On the other hand, the court did make it clear that judges are to do what patients in situations like this want done, and it could think of no "extremely rare and truly exceptional" case in which the state-might have an interest sufficiently compelling to override the patient's wishes. The court also concluded unequivocally that the state had no interest sufficiently compelling to force surgery in the A C. case itself.

All of this is solid and reasonable, and essentially concurs with the August 1987 opinion of the American College of Obstetrics and Gynecology's Ethics Committee. ACOG's committee concluded that when disagreements occur the physician should "convey the reasons for the current recommendation to the pregnant woman, encouraging responsible behavior through education and counseling," and that resort to the court is almost never justified" (emphasis added). Law and medicine are on the same track here, and in honoring the pregnant patient's decision as outcome-determinative, both are on the right track.

The case was remanded, but not for further fact finding, an exercise the appeals court labeled "inappropriate and futile." To litigate competence and substituted judgment without Ms. Carder would be little more than a vulturous act of vengeance on the part of those who treated her as if she were already dead at the original hearing.

The Footnotes

One potential for misunderstanding and underestimating the importance and strength of this opinion are some of its twenty-three footnotes. Footnotes in legal opinions are an old problem. It is often stated, for example, that "footnotes are for losers." This implies that the judge writing the majority opinion will put material in footnotes at the request of other judges who will join the opinion only if he does. Some of the footnotes in A.C.., read separately from the opinion, could easily be taken out of context to present a misleading view of the opinion itself.

The opinion holds that in virtually all" cases the decision should be made by the pregnant woman herself or through substituted judgment. Footnote 2, however, seems to suggest that a separate "tribunal" of some sort be formed to make the final decision on unspecified grounds: "Because judgment in such a case involves complex medical and ethical issues as well as the application of legal principles, we would urge the establishment-through legislation or otherwise-of another tribunal to make these decisions, with limited opportunity for judicial review." Of course, there are no "complex medical and ethical issues" to resolve if the only relevant issue is what the woman wants done.

This suggestion should not be taken any more seriously than legislatures and others have taken suggestions from a string of courts since the Karen Ann Quinlan case to establish quasi-administrative agencies to resolve conflicts that should have been resolved in the doctor-patient relationship. The central idea in A.C.. is not that an alternate decision-making "tribunal" or committee should be established; rather it is that judges should not be called to hospitals to make emergency decisions. As this case so well illustrates, rushed to an unfamiliar environment, asked to make a decision under great stress, and having no time either for reflection or for study of existing law and precedents, a judge cannot act judiciously. Neither the facts nor the law can be accurately determined. The judge in the hospital in an emergency situation will ultimately act arbitrarily, and the exercise will become one simply of using raw force. The court has made the law crystal clear; it is now the obligation of physicians, hospitals, and hospital lawyers to follow it.

Prior Decisions

Footnotes 7 and 23 try to distinguish this case from Jefferson, the only other appeals court decision in this area, and from a previously decided lower court opinion in the District of Columbia, In re Mayden.(4) In both of these cases the pregnant woman was "unquestionably competent," and both women refused to submit to cesarean sections based on religious objections. Even though the court refuses either directly to challenge Jefferson or directly to overrule Mayden, it should be emphasized that neither decision can any longer be considered good law in the District of Columbia. The appeals court spent little time on Jefferson because it found the facts distinguishable. In jefferson the court relied completely on the testimony of one physician that because of placenta previa, without a cesarean section there was a 99 percent chance that the soon-to-be-child would die, and a 50 percent chance that the mother would die. Legally, the Jefferson court wrongly equated an almost child before birth with an actual child after birth. Reliance on medical "evidence" also proved misplaced. The child was ultimately delivered vaginally, without any surgical intervention, and both mother and child did fine.(5)

The Mayden case is more important because it is a District of Columbia case, and the trial judge in A.C. relied on it. In footnote 23 the appeals court says it is neither "approving or disapproving" Mayden; nonetheless, its opinion overules it. In Mayden, the chief resident at the public hospital wanted to perform a cesarean section on a woman whose labor was not progressing. The woman, a Muslim who was specifically determined to be competent, refused and her husband agreed with her. She instead wanted to stand up or walk to assist delivery naturally. The stated basis of the physician's wish to perform a cesarean was that an infection could begin at any time and could kill the baby or cause brain damage. The likelihood of an infection increased every hour. On this basis alone the court ordered the cesarean. A healthy child was born, with no evidence of infection. The Mayden decision also contains two revealing statements: All that stood between the Mayden fetus and its independent existence, separate from its mother was, put simply, a doctor's scalpel"; and "Neither parent ... is a trained physician." In short, Mayden seemed to hold that if a doctor believes a surgical procedure is necessary, and has the means to perform it, he should be able to perform it even if the woman competently refuses, a result precisely opposite to that in A.C.

Moreover, in A.C. the pregnant woman was dying, and the judge believed that the only chance for the fetus to live was an immediate cesarean. In Mayden there was no evidence of medical problems to either the mother or the soon-to-be-child. It appears that the majority of the appeals court decided to discuss Mayden at all only because the lone dissenting judge opted to append the text of this previously unreported decision to his dissent. Rather than ignore it altogether, the majority apparently decided to add a final footnote to their already finished written opinion.

Three other footnotes are also relevant. The first is note 17, in which we learn for the first time in the court proceedings to date the views of Ms. Carder's personal physician, who had been treating her for cancer for years. The court tells us that he was not notified by the hospital about the hearing, but if he had been "he would have come to the hospital immediately and would have testified that a cesarean section was medically inadvisable both for A.C. and for the fetus" (original emphasis). The court says this shows that the record was deficient, but it shows much more. It shows that emergency hearings in hospitals are inherently unfair and arbitrary because it is impossible to prepare for them adequately and even to assemble, much less consider, the relevant facts and individuals.

The Use of Force

In footnote 3 the court notes that even though Angela Carder's attending physicians refused to perform the cesarean, and another doctor who was willing had to be found, "no physician was ordered to perform surgery or to provide any treatment against his or her will." likewise, the trial judge in this case indicated that he didn't believe he had the authority to order a physician to operate against his will. Everyone at the original hearing seemed to concur. Nonetheless, none of the judges to date has commented on the radical asymmetry: forcing invasive surgery on a competent adult had, until this opinion, seemed perfectly acceptable; forcing a physician to perform such surgery was always unthinkable. Both should be unthinkable. Even the lone dissenting appeals judge, who defines "the viable unborn child" as "literally captive within its mother's body" (transforming the mother-fetus relationship into a warden-prisoner relationship), would draw the line at the use of physical force to perform surgery on an unwilling pregnant woman.

The dissenting judge, just as the trial judge in A.C., apparently thinks that because a major surgical procedure such as a cesarean section must be done by a trained physician, it does not constitute the use of force, whereas holding someone's hands down does. This is probably because judges are very familiar with restraining one's physical liberty, but have little familiarity with medical procedures. It may also, of course, be simply that because judges are predominantly male and cesarean sections will never be performed on them, it is a surgical intervention they cannot see as offensive.

The use-of-force argument, if taken seriously, would lead to the repulsive conclusion that it is acceptable to force unwanted procedures on defenseless competent patients, such as the anesthetized or quadriplegic, but not on those who can physically fight back. This is just one reason why the ultimate justification for surgical intervention must be the consent of the patient, not the patient's ability to fight the doctor. William Carlos Williams's language in "The Use of Force" is again helpful: force fouls the doctor-patient relationship, subverting it into an assailant-victim relationship. He asks his small patient, "Will you open it [her mouth] now by yourself or shall we have to open it for you?," and without her agreement, their relationship rapidly deteriorates to a point where medical "treatment" can only be termed "unreasoning assault." It is thus not surprising that all the judges in A.C. find the use of force unacceptable.

The A.C. opinion and the ACOG standards come as close to saying that the decision of a pregnant woman, even one in labor, should never be overridden by a judge as any court or medical professional association can. It is almost impossible to think of any case where a competent pregnant woman's decision might be appropriately over-ruled by a judge that would be consistent with the A.C. opinion that "force" should never be used to physically restrain a competent woman. Not only surgery, but blood transfusions, injections, and even forcing a pill down a woman's throat, are to be prohibited.

The conclusion thus seems inescapable: the use of the judiciary to force women to undergo medical treatments against their will is not only counterproductive, unprincipled, sexist, and repressive, it is also lawless. Instead of trying to develop better procedures to force "treatment" on a few unwilling pregnant women, we should be trying to improve consensual prenatal and perinatal care for everyone.

Williams opens another of his Doctor Stories with the words, "That which is possible is inevitable."(6) Forcing pregnant women and those in labor to undergo surgery and other interventions against their will is certainly possible, as we have seen. If the decision in A.C. and the guidelines of ACOG are taken seriously, however, the use of force in the delivery room will no longer be inevitable.
 [1] William Carlos Williams, "The Use of Force,"
 in The Doctor Stories (New York: New
 Directions, 1984), 56-60.
 [2] 247 Ga. 86, 274 S.E.2d 457 (1981).
 [3] In re: A.C., D.C. Ct. App., April 26, 1990 (en
 banc, slip op.). The story of the 1987 in-hospital
 hearing and appellate decision that
 ordered Ms. Carder to undergo a cesarean
 section was reported previously in "She's
 Going to Die: The Case of Angela C,"
 Hastings Center Report 18:1(1988), 23-25.
 [4] 114 Daily Wash. L. Rptr. 2233 (D.C. Super.
 Ct July 26, 1986).
 [5] George J. Annas, Forced Cesareans: The
 Most Unkindest Cut of All," Hasting Center
 Report 12:3 1982),16-17,45.
 [6] William Carlos Williams, "Danse Pseudomacabre," 88.
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Title Annotation:"In re: A.C." legal case
Author:Annas, George J.
Publication:The Hastings Center Report
Date:Jul 1, 1990
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