Clinical Negligence

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Clinical Negligence - Consent

Solution Clinical Negligence - Consent
The recently publicised case of Alison Thorpe, a mother who believes that her daughter Katie should be given a hysterectomy, has reignited the debate over whose choice the sterilisation of mentally incompetent adults should be. Katie is 15, has severe cerebral palsy and the mental capacity of an eighteen-month-old child. Her mother argues that a hysterectomy is in the best interests of her daughter because she simply would not be able to cope with the ‘pain, discomfort and indignity’ involved in menstruation. This is not the first case in relation to this matter, yet there is no hard and fast rule for when a parent is permitted to make such a choice.

The decision to sterilise a patient, especially someone with healthy reproductive organs who is unable to give their own consent, is particularly serious. The risk is that it will become acceptable or commonplace to sterilise mentally ill patients. However, in Re F (mental patient: sterilisation), it was acknowledged that ‘some relaxation’ of the law is required in cases of mental incompetence. The Court held that the test for the sterilisation of a mentally incompetent adult is whether or not such an action is in his or her ‘best interests.’ In this particular case, F, 36, was a seriously mentally disabled woman with the mental capacity of a five-year-old child. She lived in a mental hospital, where she had formed a sexual relationship with another patient, and as a result her mother argued that she should be sterilised. There was no way she could cope with pregnancy or a child, being for all intents and purposes, a child herself. The Lords agreed unanimously that sterilisation was in the best interests of this woman. Their ruling in fact, centred around whether or not such cases always required the approval of the court. Lord Griffiths emphasised the gravity with which undertaking the sterilisation of a woman with healthy reproductive organs should be approached. The great danger of doctors being allowed to judge for themselves what is in the best interests of the patient is that sterilisation would be carried out not in the best interests of the patient but instead for the convenience of those providing her care.

In Re S (adult patient: sterilisation) it was reiterated that where there are concerns over which choice of treatment is applicable, an application should be made to the court. It was held by the Court of Appeal to be in the best interests of this particular patient not to undergo a hysterectomy but instead to have an intrauterine device inserted. This was the least invasive option, was not irreversible, and left room for surgical procedures if it were ineffective. Furthermore, it acknowledged the possibility that subsequent medical advances might provide alternative options.

In Re A (Mental Patient: Sterilisation), the Court of Appeal held that ‘best interests encompasses medical, emotional and all other welfare issues.’ A was aged 28 and had Down’s syndrome. He was cared for by his mother but she was in ill health herself and feared that whenever she moved into a care home he might have a sexual relationship without fully understanding the link between this and pregnancy. She therefore argued that a vasectomy was in his best interests. On appeal it was found that sterilisation was not necessary in this case. At the time, A was not in a relationship with anyone and was adequately supervised at his day centre such as to prevent sexual intercourse taking place. The Court found that if the situation changed, and A was in a relationship, it might be the case that a fresh application could be made. It was not merely the patient’s medical needs which required consideration, but also his emotional and welfare needs.

In Zm and Os (sterilisation patient’s best interests), Z, 19 suffered from Down’s syndrome. Her periods were heavy, irregular and painful and she experienced personal hygiene difficulties during menstruation which were extremely embarrassing for her. In this case, she was starting to live independently and had a boyfriend, with whom it was feared she was likely to begin a sexual relationship. As a result her mother argued that it was in her best interests to have a hysterectomy. The defending solicitor argued that instead of a hysterectomy it would be better to opt for a contraceptive device. The Court held that it was in the patient’s best interests to perform a sterilisation as menstruation brought her nothing but pain, discomfort and embarrassment, along with the possibility of pregnancy and the ensuing problems of dealing with a child or giving it up.

The Court therefore weighs up all the evidence in each individual case before deciding what is the appropriate action to take in respect of each patient. Katie Thorpe’s case differs from these precedents as her mother wishes to perform pre-emptive sterilisation, before she has experienced menstruation at all. Previous cases have all been based on a situation where the patient can be shown to be unable to cope with menstruation. If Alison Thorpe succeeds it will be the first time in the UK that a hysterectomy has been granted without it being proven to be medically necessary.

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Article details

Article ID:	193
Category:	Medical Negligence
Date added:	20-11-2009 02:26:14
Views:	39
Rating (Votes):	(0)

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