Sterilisation of a Disabled Person - Case Study Example

Assignment question. Sarah is the mother of Amanda a 13 year old girl who is severely disabled. Amanda is unable to walk, is doubly incontinent and is unable to communicate with her carers. She requires round the clock care from her mother. As Amanda is nearing the onset of puberty her mother is becoming increasingly worried about the effect of menstruation may have on her daughter’s mental health. Sarah’s argument is that she does not want Amanda to endure the discomfort mood swings and indignity that often accompany menstruation. Furthermore she points out that Amanda would be unable to communicate to her carers the nature and extent of her pain. Such as stomach cramps, that she was suffering. Sarah also highlights that fact that Amanda has no realistic prospects of ever having children hysterectomy i.e. remove the daughters womb so as "to improve her quality of life” a number of gynaecologists are backing Sarah’s demands however various disabled rights group are horrified by he prospects of doctors removing Amanda womb "just because she is disabled they argue that she has "just as much right as anyone else to grow up with her body intact to have the opportunity to choose whether to give birth to her own children’s. Her human rights would be violated". From a law and morally perspective critically evaluate the above situation. 1) Introduce the relevant issues. I.e. is it appropriate to sterilise a minor without their consent. Briefly look at the relevance on the effect on the carers looking after someone disabled. Look at the nature of the operations it’s not without risk? And it’s not reversible. Also briefly look at the disabled rights. Brief mention on human rights also. 2) Main body of the assignment. Criticise the law. Also its “best interest test” critique it. Convenient arguments if the court declare it to be lawful, the whose convenience is it for. Absence of consent could also be discussed. Human rights on Eugenic( population) 3) Conclusion. Do you think it’s appropriate from legal and moral perspective? Include a few lines on utilaranaism and liberalism. Case that could help you to put in the assignment F v West Berkshire HA “best interest test” embodied in statue following the approach adopted in this case law. F v F the times April 29 1991 held to be “therapeutic reasons” due to having heavy periods which was accepted in this case. Interest of carers should not be taken into account cases Re B (1987) 2 ALL ER 206. Eugenic considerations should not be taken into account Buck v Bell (1927) 274 us 200 These just some of the cases I have came across I do feel if supporting an argument please use a case study to make it valid. The issue of the sterilisation of children who are mentally handicapped has always been an emotive topic and one that is very controversial. Despite protestations by the parents of the handicapped child that they are acting in the best interests of the child many see this as a violation of the right of the woman to reproduce. In Re D (A Minor) (Wardship: Sterilisation) [1976] 1 All ER 326 an educational psychologist who had been concerned with the child’s welfare applied for a wardship order which was duly granted by the court. In this case the child’s mother had asked a hospital to sterilise her daughter as she was concerned that her daughter who had a substantial handicap might be seduced and become pregnant and give birth to an abnormal child. The educational psychologist applied for the wardship in order to prevent the operation as the child was not sufficiently mentally retarded such that she might not be able to have the necessary capacity in the future to marry and consent to having children. The court upheld the order stating that there was no medical reason for performing this operation and that the child should be protected until she was able to make informed consent on the issue. The right to reproduce was confirmed by the House of Lords in the case on Re B (A Minor) (Wardship: Sterilisation) [1987] 2 All ER 206, however in this particular case the local authority applied for wardship so as to force the child to be sterilised. In this case the House of Lords held that as the child was severally mentally handicapped and had no understanding that intercourse could lead to pregnancy it was in the best interests of the child to be sterilised as she would be unable to cope with motherhood or the removal of the child from her care if she were to have a baby. The best interests principle is likely to be applied if the child is never likely to be able to make an informed choice as she does not understand that sexual intercourse can lead to pregnancy (Re M (A Minor) (Wardship: Sterilisation) [1988] 2 FLR 497). As mentioned above in Re B the vulnerability of the child in respect of seduction has also been considered a reason to support the call for the child to be sterilised. In Re B the courts were asked to consider whether a less intrusive method of contraception could be employed with the same degree of safety. The court considered alternative options but based their decision on the fact that the child would never be able to make informed consent and therefore sterilisation was the best option as the child could refuse to employ the alternative options when she was older, which could result in an unwanted pregnancy. Lee and Morgan (1989) have attacked the courts assertion that carrying out such procedures is not a breach of the human rights of the individual. They argue that the right to reproduce is only of any value to the individual if they are aware of the right and have the necessary capacity to insist on this right. Grubb and Pearl (1987) commented on the fact that the European Convention for the Protection of Human Rights failed to include the right to reproduce. Those attempting to rely on the human rights issue to aver that there has been a breach have to rely o Art 3 of the Convention by asserting that subjecting them to such an operation is equivalent to subjecting them to torture. Sterilisation is often regarded as general medical treatment when applied to the sterilisation of someone who is unable to give informed consent. By treating sterilisation in this manner the doctors can justify treatment on the grounds of necessity. It is not only the English courts that are concerned about the issue of the sterilisation of a female who cannot give informed consent in Re Eve (1986) 31 DLR (4th) I, at 32 La Forest LJ commented that sterilisation should never be authorised for non-therapeutic purposes. In the case of Re B the court deliberated over the distinction between therapeutic and non-therapeutic sterilisation. The Lords in this case considered the comments of La Forest in Re Eve but could not determine whether he was implying that protecting the child from future harm should be regarded as non-therapeutic. They felt that if this were the case they would have to disagree with his comment as they were of the opinion that there are occasions were sterilisation should be regarded as a therapeutic and the protection from future harm was one such example. In deciding on the issue of whether sterilisation or performing a hysterectomy on a mentally handicapped child is justified doctors often examine the impact that going through menstruation might have on the handicapped person. In a study carried out by Rodgers (2001) it was reported that women with intellectual disability found it physically difficult to care for themselves during a period. Rodgers (2001) also found that many such women reported a negative experience of having periods, even if they were able to physically care for themselves. The complaints made by the sample group used in the study included difficulty dealing with the pain and concerns over being able to change the pads. Many were worried about potential leakage and were often too embarrassed to seek the help they needed. In many cases women suffering from a mental handicap are not provided with information regarding menstruation which causes them to be anxious and confused about what is happening with their bodies (Carlson and Wilson, 1994). In the case of F v F (1991) 7 BMLR 135 the courts authorised a hysterectomy where the severely handicapped girl was suffering from serious menorrhagia. It was felt that the embarrassment caused to the girl from the continual leakage and soiling of her clothes during menstruation should be alleviated by performing the operation. The decision in this case is not consistent with general medical practice as the recommendation of the British Medical Association is that such a procedure should only be carried out as a last resort. They have also stated that without informed consent such operations should only be undertaken where the condition of the female is life threatening (Albanese and Hopper, 2007) The main thrust of the argument for the sterilisation or the performance of a hysterectomy on a mentally handicapped child, is centred on the notion of best interests. It seems difficult to believe that such an invasive procedure can ever be in the best interests of the child. This was the argument used in F. v. West Berkshire Health Authority and another [1989] 2 All ER 545 in which the court held that sterilisation of the mentally handicapped woman was in her best interests. As she had no notion of things that would be good or bad for her it is amazing that the court could deem this to be in her best interests. If the woman had been asked if she considered this to be in her best interests she would have been unable to comment as she had no notion of what her best interests were. The danger of allowing sterilisation to be ordered at the whim of a parent or carer of a mentally handicapped child can be seen in the case of Buck v. Bell, 274 U.S. 200 (1927) in which the United States Supreme Court upheld a statute that instituted the compulsory sterilisation of the mentally retarded. The statute was upheld on the principle of the ‘protection and health if the state.’ This was regarded as an endorsement of negative eugenics and an attempt to eliminate ‘defectives’ from the human race. By allowing parents or local authorities to make decisions regarding the sterilisation of children based on the fear of them reproducing is a form of eugenics which should be discouraged. The recent Mental Health Act 2007 has attempted to give adolescents a degree of autonomy in respect of consent to treatment. Unfortunately this Act will only protect those who have the necessary capacity to consent, although children with mental health problems are now not automatically presumed to lack capacity. In the US a woman won the right to have her daughters breasts removed and a hysterectomy performed so as to ensure the child, who only has the mental age of a 3 month old, will remain the size and development level of a 9 year old in her physical form (http://news.bbc.co.uk/1/hi/health/6230045.stm, accessed 15 April 15, 2008). Worryingly the UK courts are now facing a similar challenge with the case of Katie Thorpe whose mother is campaigning for similar operations on her mentally handicapped daughter to prevent her from reaching maturation (http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2007/10/08/dl0802.xml, accessed 15 April 2008). In many ways by allowing the parents of mentally handicapped to be able to order such invasive procedures could be regarded as a form of child abuse as they are putting the child through unnecessary suffering when there are other less invasive treatments available. Removing their autonomy in essence treats the child as though they are a non-entity. The conclusion that can be reached from the above is that in the vast majority of the cases the sterilisation of the child is more for the benefit of the parents or carers then it is for the child. As the child is unaware of their needs and what is in their best interests they have no appreciation that the surgical procedure will make any difference to their quality of life. In many cases the argument that the parents raise that they are afraid that the child might be seduced and end up pregnant has no real weight as many if these children that have been sterilised are totally dependent on their parents or carers for all their everyday needs. This is especially the case with the American child Ashley X and also of the latest case which is still to be decided in respect of Katie Thorpe. Whilst there is sympathy for the plight of the parents of these children there can never be any real justification for subjecting them to the pain and danger of major surgery just for the convenience of the parents and the carers. On a moral and ethical perspective the sterilisation or performing of a hysterectomy is synonymous with the activities of the Nazi’s during World War II where Hitler took steps to create the perfect race through the annihilation of ‘defectives’ and those of the Jewish persuasion. The parents of these children would argue that this is not the impetus behind their decision, however, in some instances where the child might eventually develop to a level of majority were she could give informed consent as in Re D, mentioned above, there can be mo justification for attempting to have the child sterilised. Bibliography Albanese, A & Hopper, NW, 2007, Suppression of menstruation in adolescents with severe learning disabilities Archives of Disease in Childhood 2007;92:629-632 BMJ Publishing Group Ltd & Royal College of Paediatrics and Child Health Alderson, P. (1993) Childrens Consent to Surgery. Buckingham: Open University Press. Carlson G. & Wilson J. (1994) Menstrual management: the mothers perspective. Mental Handicap Research 7, 51–63 Dickenson, D. (1994) Childrens informed consent to treatment: is the law an ass? Journal of Medical Ethics, 20, 205-206 Grubb, A. and Pearl, D. "Sterilisation and the Courts" (1987) 46 Criminal Law Journal 439, at 446. Hagger L. Some implications of the Human Rights Act 1998 for the medical treatment of children. Medical Law International 2003;6(1):25–51 Kessel, A. S. (1994) On failing to understand informed consent. British Journal of Hospital Medicine, 52, 235-239 Lee, R. and D. Morgan (1989) Birthrights, Law and Ethics. London: Routledge Mason, L & Cunningham, C, 2008, An Exploration of Issues around Menstruation for Women with Down Syndrome and their Carers Journal of Applied Research in Intellectual Disabilities 2008, 21, 257–267 Parekh, S.A, Child consent and the law: an insight and discussion into the law relating to consent and competence, Child: Care, Health and Development, Volume 33, Number 1, January 2007 Blackwell Publishing Potter, R, Child psychiatry, mental disorder and the law: is a more specific statutory framework necessary?, The British Journal of Psychiatry (2004) 184: 1-2 2004 The Royal College of Psychiatrists Rodgers J. (2001) The experience and management of menstruation for women with learning disabilities. Tizard Learning Disability Review 6, 36–44 Shaw, M. (1999) Treatment Decisions in Young People: The Legal Framework. London: FOCUS, The Royal College of Psychiatrists Research Unit. http://news.bbc.co.uk/1/hi/health/6230045.stm Read More