Whose choice?
Date: 09 November 2007
Authors: Julian Samiloff
Issue: Vol 157, Issue 7296
Categories: Opinion, Practice areas
A mother who asked doctors to give her 15-year-old daughter (K), who has severe cerebral palsy, a hysterectomy has raised again the ethical and legal dilemma about how the law ought to balance the human rights of people who, because of mental disability, do not have the capacity to consent to the medical treatment being proposed.
Although the operation is not in the young woman’s physical best interests, her mother argues that the medical intervention is in the best interests of K because, she says, K will not be able to cope with the onset of adulthood and the “pain, discomfort and indignity” of menstruation. K “has an undignified enough life without the added indignity of menstruation. She will not understand what is happening to her body and it could be very frightening for her”. She “would be totally confused by menstruation. She could not manage it by herself. She could not keep it discreet; she can not be private”. K’s doctors agreed, but what are the issues engaged here?
THE LAW
Decisions on medical treatment for incompetent adults are made using the “best interests” test as set out in Re F (mental patient: sterilisation) [1991] UKHL 1, [1989] 2 All ER 545. The test requires the weighing of benefit and detriment that will flow from the proposed procedure and, in this case, the psychological, emotional and social effects on K. In Re MB (an adult: medical treatment) [1997] EWCA Civ 1361, [1997] 2 FCR 541, following a medical examination MB, who was pregnant, was informed that a Caesarean delivery might be required.
She consented to the operation but then refused to be given anaesthesia by injection because she had a phobia of needles. When MB went into labour, the hospital treating her obtained a declaration that it would be lawful for doctors to perform the Caesarean section and use needles to administer the anaesthesia, because she was not capable of consenting to or refusing treatment.
The Court of Appeal held that the notion of “best interest” encompasses medical, emotional and all other welfare issues. Also in Re A (medical treatment: male sterilisation) [2000] 1 FCR 193 at 200, the Court of Appeal said that “best interests encompasses medical, emotional and all other welfare issues”.
Thus, in K’s case the court will undoubtedly have to decide where the balance of interest lies. Balancing “pain, discomfort and indignity”—fear and confusion over the process of menstruation, contraception and perhaps pregnancy (this issue was not raised)—and the general welfare of K and her emotional needs, which by implication may include consideration of her carers’ wishes and lifestyle.
K has the right, if she can not herself choose, not to have drastic surgery imposed upon her which will inevitably mean the loss of her human right to bear children unless and until it has been demonstrated that such action is in her best (wide) interests.
PRIMUM NON NOCERE
The decision must also ensure that the proposed medical condition does not offend against the doctrine of primum non nocere—first, do no harm.
In Zm and Os (sterilisation patients’ best interests) [2000] 1 FLR 523, Z, aged 19, suffered from Down’s syndrome. Her periods were heavy, irregular and painful, the regularity only being improved by taking oral contraception. Z also experienced personal hygiene difficulties during menstruation, which were extremely unpleasant and embarrassing for her. Unlike K, Z was starting to live independently of her family, and a move to a residential unit was anticipated. Z had a boyfriend, and her mother, M, recognising that a sexual relationship was probable, sought a declaration that it was in Z’s best interests to undergo a hysterectomy.
The official solicitor opposed a major surgical procedure and argued for the fitting of an intrauterine device as a means of treating the problems. The High Court held that it was in Z’s best interests to have a complete cessation of her periods and complete protection from pregnancy. Her periods brought her nothing but pain and discomfort and, furthermore, pregnancy, childbirth and the removal of the child would be a catastrophe, as would the psychological and emotional consequences of an abortion.
In cases where there is a dispute about treatment, or choice of treatment, an application should be made to the court. In Re S (adult patient: sterilisation) [2001] Fam 15, [2000] All ER (D) 683 it was held that it is the judge, not the medical practitioners, who decide whether the treatment is in the best interests of the patient.
In Re S, the subject of the case was a 29-year-old woman with severe learning difficulties, who was distressed by her menstrual periods and had a phobia about hospitals. Her mother sought a declaration that it would be lawful to perform an operation of sterilisation or hysterectomy upon the patient. The trial judge considered the relative merits of both procedures and of the alternative of inserting a contraceptive coil.
In the Court of Appeal it was held that such an application was necessary, especially where there were possible alternative forms of treatment. It said that a court must decide if the treatment is:
- in the best interests of the patient;
- the least invasive;
- reversible;
- and leaves open the prospect of further treatments or surgical procedures if the intervention is ineffective or troublesome.
Further, courts ought also to be aware of the possibility that subsequent medical advances might provide alternative options.
What of this case? We do not have all of the facts but what we do know is that the High Court will want to find a way forward that is in K’s best interest. It may be, given K’s age, the state of current medical practice and future medical advances that the court will not want to go along with a medical intervention that is irreversible, especially as that intervention relates to removal of K’s reproductive rights.
Julian Samiloff is a senior lecturer in law and a practising barrister
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