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. …