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forced sterilisation

I normally canter through a judgment, picking out the salient bits, but I think this one really needs to be read in full to appreciate it. It would not be fair for me to look at individual passages.

This is a follow-up to this piece

https://suesspiciousminds.com/2014/07/08/barbecue-tongs-and-police-being-given-power-to-force-entry-to-a-home/

 

In which Cobb J, sitting in the Court of Protection, gave a ruling that a caesarean section was in a woman’s best interests and even that the police could force entry. It was a very unusual case.

This follow up is the same Judge, in the same Court, considering whether the woman, who lacked capacity to make decisions for herself, should be sterilised without her consent. And again whether there could be powers to forcibly enter her home, remove her and take her to hospital.  The Court do decide that these things are in her best interests.

There’s no getting away from this, the fact that a Court even have these powers makes anyone feel uncomfortable.  Critics of the system have the right to say that this feels wholly and utterly wrong, no matter how carefully it is explored.  It does end up smacking of eugenics, and the nasty side of eugenics at that. Even thinking for a minute about how terrifying it must be for this woman when the police knock down her door and she is taken to hospital for surgery she doesn’t want and doesn’t understand makes your flesh crawl.

My personal take is that I think Cobb J gives a very careful and thoughtful judgment and tries to balance the competing factors.  Parliament have given the Court of Protection this authority to make such decisions, and if they have to be made, doing it in the way Cobb J has done is the best way to do it. I think he is also right to set out that this is a truly exceptional case, with truly exceptional facts – all efforts to engage and develop the woman’s understanding about the health risks to her of further pregnancies were unsuccessful, and the health risks are life-threatening.  But we have sadly seen that unique and exceptional cases do sometimes end up being used in ones that are slightly less so, and on and on until authorities bear little resemblance to the original case.

 

The Mental Health Trust and DD 2015  http://www.bailii.org/ew/cases/EWCOP/2015/4.html

 

Even if you end up disagreeing with Cobb J’s decision (and I think you’re perfectly entitled to – this is one of those really moral and ethical arguments) please do him the courtesy of reading the judgment first. It must be a thankless job having to make decisions like this.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

17 responses

  1. Words fail me. Here you are, presenting to the world such a horrendous judgment as a reasonable solution. Reasonable solution? For a woman whose life was completely messed up in the UK by the UK authortities. She sure was not the first woman who had to endure such abuses by the State, but forced sterilisation is a new peek.

    From the judgment: “the impact on DD’s mental and emotional health of any further pregnancy (DD has suffered from a delusional disorder following her second and third pregnancies); ” Surely, after having her children serially taken off her, a woman can get very delusional and very instable..

    It should be of interest to see what the European Court of Human Rights has to say about Family Justice UK style. Their official report is condemning to say the least..
    http://website-pace.net/documents/10643/1127812/EDOC_Social+services+in+Europe.pdf/dc06054e-2051-49f5-bfbd-31c9c0144a32

    • I really don’t think I was presenting it as a reasonable solution. I think my revulsion and disquiet about whether Courts should have those powers at all comes through. I think that the Judge does a good job in those awful circumstances, but there’s a real public debate to be had about whether in our society we are prepared to have anyone sterilised against their will, even to save their life. (I would fall on the ‘no’ camp, for what it is worth)

      Forced sterilisation isn’t actually a new thing – this isn’t a first time case, but it has been the first one for quite a few years.

      • Have you got any statistics handy about how many forced cesarian were ordered after the “italian mother forced cesarian case”?

        Of course, you as a legal nerd are supposed to admire a crafty jugment, however socially subversive such a judgment may be in effect.

        The overall point is, that you (I am speaking here of a “general you”) seem to understand very little what social workers very often do. Many lie, cheat and distort arguments and facts to suit their goals, and nobody is there to control them and the entire thing has gotten out of control – thanks to many factors, but my favorite is the “austerity” and the “privatisation” of public resources (that is the public’s own money). In a terrible way the entire legal profession, except a few exceptions, seems rather naive about how social care has deteriorated. Are you sometimes wondering in your own line of work if your “crew” of Social Workers is lying and if they do – what are you doing about it? You still produce crafty arguments cause that’s your job the council is paying you for? Yes, those are the deep, painful, dreadfully moral questions.

        Once another Pandoras Box is opened, SS will sure come and unleash it’s demons on ever more people in the UK – that is how the hurt public sees all this, and remember that every day more people are getting very badly hurt.

      • As you say this is a very tough situation.

        All the choices available look bad, and before I read all the details I was ardently against the outcome.

        However, looking at the judgement it appears the options are;
        a) allow a 7th or 8th baby which will most likely kill the mother
        b) repeatedly force contraception in a fashion which is causing increasing distress
        c) sterilise and then allow the couple to get on with their lives as best they can

        If the mother understood the risk, and truely wanted to die rather than be sterilised I’d support a). However that doesn’t appear to be the case, and the mother herself has at times sought sterilisation (though possibly for suspect reasons).

        To my mind it really comes down to whether, if someone lacks capacity to understand the result of their actions, the state should sit back and let events unfold, or whether they should try and intervene.

        Perhaps it would be worth considering the position one would take if instead of the risk of pregnancy, there was an aggressive case of ovarian cancer. If the mother didn’t want an op but didn’t understand she would die otherwise, would it still be right to undertake surgery, despite the fertility impact, or should she just be allowed to die untreated?

        In many ways the impacts of deciding either way are very similar to this case, but I suspect the balance of opinion might be different.

        If it is, perhaps the issue is more about our justified horror at past behaviour in relation to forced sterlization, rather than the actual needs of this poor mother.

      • “Perhaps also worth considering how we’d feel if instead of being about the mother, we had the case where the father had aggressive testicular cancer, and didn’t want an op, but didn’t understand he’d die without it.”

        I would greatly appreciate if SM could share a case in which a judgment was made (even historical) to forcibly castrate or sterilise a man.

        Was such a judgment ever made since the 1960s? I highly doubt it. Not even in the case of pedophile rapists is forcible castration even considered and such people are not merely a danger to themselves but to all of society (and in particular to children of course).

        You see, such are the double standards in the UK between the treatment of actual dangerous perpetrators of real crimes against children and victims of a system that refuses to help parents and instead made an art out of argueing it’s way out of it’s serial failures and lack of social responsibility. Any crafty legal argument can sure patch over that, but it can never fix the actual gaping hole in the reality of UK social life.

      • Perhaps also worth considering how we’d feel if instead of being about the mother, we had the case where the father had aggressive testicular cancer, and didn’t want an op, but didn’t understand he’d die without it.

        In all three scenarios we’re trading continued life against fertility.

        Is our position tied up with memories of terrible historical actions and our feeling on mothers giving birth, rather than the persons best interest?

      • Roya azal: agree on the asymetry, which is why i raised the point.

        I would however be interested in your views on forced surgery to save life in the case of cancer (male and female cases) where that also impacts fertility.

        Whilst if they have capacity to understand the consequences i would strongly assert they must be allowed to choose their own course, but if the person doesn’t want surgery, but doesn’t understand not having it will lead to their death, should we just do nothing and let them die?

      • To equalize forced surgery with forced sterilisation is a red herring – an argumentative foul play. A woman’s fertility is not a cancer.

      • The ruling against this unfortunate mother is primarily about her being deemed a risk to her children, including her unborn children. Hence her and her children’s experiences of serial forced adoption. The forced sterilisation was nothing else but the “final cut” of the State. Women who are not in a situation like her, but also had a series of cesarian sections may decide to have more children, they may die or not as a result of it, but nobody would enforce a sterilisation on them (but maybe that can be expected now however, after this judgment).

        This ruling has opened the pandoras box on other mother’s in similar and vaguely similar circumstance. Who decides exactly who is “unfit” as a mother and unable to make decisions under what parameters? We all know that presentation and argument is all at a court and there are continously many questions about the performance of so called “experts”, Local Authorities and the NHS and their duties to care for the public.

        When I read – as in this case – that the official solicitor was present (just like he was in the Italian mother forced cesarian case), it is clear that no real argument was brought forward on the mother’s behalf, defending her right to be a mother, have babies and to receive adaquate support and protection by the State.

        The real question remains what has the Local Authority done/not done for her and how have they failed and ultimately abused her?

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  3. stella aka toni macleod

    First they came for the single mothers and i did not speak out because i was not a single mother.
    Then they came for the disabled and ill and i did not speak out because i was not disabled and ill.
    Then they came for all the working class parents and i did not speak out because i was not working class.
    Then they came for me and there was no on left to speak out for me.

    The aforementioned is MY modern day version of the below WW2 poem do you not think its time to make a stand in light of the recent events with forced adoption benefit sanctions atos refusing disabilities and now the forced sterilization of a mother of 6 just on the say so of the government !

    First they came for the Jews and I did not speak out because I was not a Jew.
    Then they came for the Communists and I did not speak out because I was not a Communist.
    Then they came for the trade unionists and I did not speak out because I was not a trade unionist.
    Then they came for me and there was no one left to speak out for me.

    time to make a stand do you not think !!! xx

  4. The ruling against this unfortunate mother is primarily about her being deemed a risk to her children, including her unborn children. Hence her and her children’s experiences of serial forced adoption. The forced sterilisation was nothing else but the “final cut” of the State. Women who are not in a situation like her, but also had a series of cesarian sections may decide to have more children, they may die or not as a result of it, but nobody would enforce a sterilisation on them (maybe that will change now, after this judgment).

    This ruling has opened the pandoras box on other mother’s in similar and vaguely similar circumstance. Who decides exactly who is “unfit” as a mother and unable to make decisions under what parameters? We all know that presentation and argument is all at a court and there are continously many questions about the performance of so called “experts”, Local Authorities and the NHS and their duties to care for the public.

    When I read – as in this case – that the official solicitor was present (just like he was in the Italian mother forced cesarian case), it is clear that no real argument was brought forward on the mother’s behalf, defending her right to be a mother, have babies and to receive adaquate support and protection by the State.

    The real question remains what has the Local Authority done/not done for her and how have they failed and ultimately abused her?

    • That’s well put I think – the fear in this case is that the sterilisation is in part about stopping someone who the State think ought not to have any more children from being able to have them. I suppose the counter argument (that I don’t wholly subscribe to) is that this is a woman who is not able to understand that another pregnancy could kill her and does the State owe her a duty of care to protect her from herself.

      And yes, like you, I would rather that the Official Solicitor’s default position was to argue against these applications – let the Judge worry about what is in the person’s best interests, but someone needs to articulate the arguments against.

      • It is not the Official Solicitor’s job to argue on behalf of P. It is their job to make a decision that is in the best interest of P. Hence, why he did not argue against the court order.

      • Yes, I am aware of that. I think that given that it is the Judge’s job to make a decision that is in P’s best interests, it would be fairer to P if the person speaking on their behalf actually produced the counter arguments to the proposed State intervention. Otherwise Judges can easily hear only one side of the debate.

  5. Whilst I share your concerns about the role of the Official Solicitor, I do feel that Justice Cobb was light years ahead of Justice Mostyn in the way in which he tackled the series of decisions in this very difficult case.

    I must confess that when I read Mostyn’s judgement on the ‘forced caesarean’ I found it utterly extraordinary. I have a lung condition which means I need fairly frequent hospital admissions for intensive treatments, indeed I have recently emerged from hospital. I am accustomed to discussing the risks/rewards of alternative courses of therapy with my doctors; sadly, there’s no such thing as a free lunch.

    The idea that undergoing the risks of major surgery under general anaesthetic against one’s will, with all of the known endocrinological consequences precipitated by acute stress, is a commensurate response to a risk to the mother of uterine rupture in normal labour of less than 1%, is little short of farcical. As far as I can tell there wasn’t even any consideration of this aspect; certainly no qualified endocrinologist appears to have been consulted. I should perhaps note that as someone with adrenal insufficiency I’m used to their input in considering treatment plans.

    It was my impression that Justice Mostyn’s claim that he was obliged to disregard the possible risks to the baby lacked conviction; he appeared to be going through the motions, whilst seizing eagerly on anything which might allow him to do so in practise. Since I do not believe that England is knee deep in social workers lurking in wait for heavily pregnant women whose babies they wish to snaffle, I have no connection with the usual suspects (I hope you don’t mind Casablanca citations).

    But I do remain profoundly uneasy at the huge difference between the way in which my doctors, who frequently disagree amongst themselves, as well as occasionally with me, embark upon shared discussions about the risks and rewards of the best way forward, and the picture we have of what was happening with these two very different women. Since I am acknowledged to have capacity I can fight my corner; they couldn’t, and, if we accept that they lacked capacity, then they needed someone to do so on their behalf. This brings us back to the role of the Official Solicitor, who I entirely agree should have played a far more active role than they did…

    • Yes, I think if the Court ARE going to make these sorts of decisions, Cobb’s approach is to be preferred.
      I have issues as to whether Parliament was right to bundle up almost infinite powers up in the MCA and say to the Court of Protection “you can do anything, as long as the person lacks capacity and you’ve decided that it is in their best interests” rather than Parliament actually deciding “we are explicitly going to authorise Courts to rule that sterilisation can be done without consent, and in these circumstances” – I would prefer explicit powers with boundaries and clear tests and Parliament having anticipated and ruled that these powers might be used.

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