The normally secretive Court of Protection has surprisingly opened their doors for the case of forced sterilisation of a young, pregnant woman “P” who has learning disabilities.
Her mother, Mrs. P is currently taking care of P’s first child. As P’s caregiver, she is asking the courts to sterilise her daughter. She told the courts, “Obviously we can’t carry on supporting more and more children. She doesn’t see anything wrong in her behaviour.”
Yogi Anin, a soliciter at Irwin and Mitchel, says that the ethical issues that arise are the right to be a parent and proceed with the pregnancy versus the ability to understand the consequences of having a child.
“There’s also a balance with the rights of a child and their rights to be parented,” says Anin.
P’s case will be the first ruling of forced sterilisation under the 2005 Mental Capactiy Act put in place in 2007. Before, the high court Family Divison held the jurisdiction. “There have been terminating pregnancy cases made earlier but this is the first sterilisation case under the new act,” says Anin.
Headly has postponed the preliminary hearing until April to gather further evidence.
“For the individual this is the biggest decision of their lives so he won’t take it lightly,” says Anin.
Steve Edwards, a professor of philosophy and medical ethics at Swansea University says that any decision will hinge on the psychological assessment proving P’s capacity to understand being pregnant.
But, he adds that there is a sensitivity to the assessment. It should be carried out by someone with experience working with mentally disabled people. “My fear would be that maybe it’s being conducted by people who don’t really find it easy to connect with people with intellectual disabilities.”
Edwards says the biggest ethical question is P’s right to procreate and that depends on what notion of procreate the court holds. “Is it the minimal way of creating a child or is it a richer notion which is the right to be a parent?” asks Edwards.
The British Medical Association’s Ethics Committee say that a doctor needs to be confident his or her patient has the capacity to make the decision about a medical procedure at the time it is required.
“The BMA’s ethics committee also believes that doctors should inform patients of the benefits of reversible contraception so that the patients have more reproductive choices in the future.”
The real breach of ethics in P’s case has already occurred, according to David Congdon, head of campaigns at Mencap. The case was brought to court by a local NHS trust and council, which shows that the doctor was actually considering the procedure.
“The doctor should always ask himself, if the person hadn’t got a learning disability, what would I do? Would I carry out this surgery because another person says they want to?” says Congdon.
Congdon says that sterilisation should not be carried out unless it is on medical grounds. “You’re carrying out major invasive surgery and the only stage you should do that is when there’s a major medical reason likely to involve a threat to the life of the individual.”
‘There are less invasive alternatives to sterilisation such as a contraceptive injection or the pill. Sex education and advice on parenting could also be given.’
In P’s case, her mother has reported that she refused the contraceptive injection at the last minute at a family planning clinic.
For David Marslad, Emirates Scholar of Sociology and Health Sciences at Brunel University London, sterilisation is the only answer.
“Those suffering the most severe mental defect, subject to what might better be called learning impossibilities than learning difficulties, can only be properly protected from themselves by sterilisation,” he said in a lecture.
Marsland argues that individual rights do not trump democracy and freedom. “A democratic society has the duty to protect children if necessary by means of sterilisation,” says Marsland.
Anin says the ultimate decision in the Court of Protection “won’t break new ground.” But, no matter which ethical stance is taken, the symbolism of this case is significant.
Edwards says that the way society views mentally disabled people needs to be taken into account in society. “Healtcare professionals treatment is different to intellectually disabled to mentally abled people.”
Congdon, agrees that a putting the issue into the public domain is beneficial. “If you don’t go to court you don’t get systemic change…we want to shake the medical profession up a bit to give a much better deal to people with mental disabilities.”