Sterilisation of Mentally Handicapped People: Judges Rule OK?
| Published date | 01 January 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01795.x |
| Date | 01 January 1990 |
CASES
Sterilisation
of
Mentally Handicapped People:
Judges Rule
OK?
Josephine Shaw"
Judges are generally ill-informed about
many
of
the
factors relevant to a wise decision
in
this
difficult area. They generally know
little
of mental illness, of techniques of contraception
or
their efficacy.
And
however well presented a case may be,
it
can
only
partially
inform.'
Introduction
In the field of comparative law, it
is
always wise to temper cross-cultural comparisons
of legal developments with a keen awareness of the contrasting legal, political, social and
philosophical heritages of different States and legal systems. This
caveat
applies equally
in the field of medical law where many Western legal systems of both the Common law
and Civil law families have been confronted with a broad common complex of moral,
social and legal issues generated by the ever increasing use of medicine and medical
technology. Strikingly different solutions to similar social problems are often adopted:
there is, for instance, no consensus among judges, legislators and other policy makers
on recourse to or rejection of nonconsensual sterilisation as an appropriate technological
response to the social 'problem' of sexual activity by those unable by reason
of
mental
disability to conform to the norms and demands of modem society; the divergence of
responses to the issues thrown up by the development of reproductive technology offers
another example of
the
differential operation of conditioning factors such as religion, family
formation and gender politics. There is, nonetheless, much to be gained by transnational
comparisons of approaches to medical law issues, since they offer
an
unrivalled opportunity
to throw the domestic experience into broader perspective and to widen the perceived
range of available policy options.
It is the primary purpose of this note to examine the House of Lords decision in
Re
F
on the legality of nonconsensual sterilisations of mentally handicapped adults. However,
where appropriate, comparisons will be drawn with legislative developments in the Federal
Republic of Germany. It aims to contrast the statutory framework for such medical
interventions currently before the West German
Bundestag
for debate, with the ad hoc
judicial law-making which has occurred in the United Kingdom. Although some steps
towards broadening the arena of debate have been taken in the Federal Republic, neither
legal system has succeeded in shedding
all
traces of deep-rooted discriminatory assumptions
about mentally handicapped people; it is implicit throughout this article that effective
solutions to the perceived problems of sexuality will be of a social and political nature,
not a legal one.
~~
*Lecturer in Law at the University
of
Exeter.
I
would like to thank Klaus Lachwitz
of
the
Bundesvereinigung Lebenshilfe,
Marburg, and Michael Schriider
of
Institute
of
Medical and Pharmaceutical Law, University
of
Gottingen
for
supplying me with materials.
1
lke
Modem
Law
Review
53:
1
January
1990
0026-7961
Per Justice La Forest in
Re Eve
(1987) 31 D.L.R.
(4d)
1
at 32
91
The Modem Law Review
[Vol.
53
The Position in English and German Law in Outline
In
Re
F,
F
v
West Berkshire Health Authority,2
the House of Lords unanimously affirmed
the conclusion of Scott Baker
J
and the Court of Appeal3 that it was in the best interests
of
F,
a
36
year old woman with a severe mental handicap, to be sterilised, and that such
an operation was lawful notwithstanding her inability to consent. ‘Best interests’ are to
be determined on a case by case basis by the court in the light of expert medical and other
evidence before it; nothing more is heard in
Re
F
of the
therapeutichon-therapeutic
distinction drawn in the leading Canadian case of
Re Eve4
but dismissed as being ‘totally
meaningless’ in the earlier House of Lords case of
Re B.*
Since the loss of the
purens
patriue
jurisdiction, the court has no power to ‘consent’ or give mandatory approval of
the sterilisation procedure, but the procedure may nonetheless lawfully be performed without
consent. It is however ‘highly desirable’ as a matter of good medical practice6 that such
cases should be brought before the court and the court will exercise its inherent power
to make a declaration and give an ‘independent third opinion’’ on the case.
According to Lord Brandon, the material facts relating to
F
were as follows:
F,
an adult
woman born in
1953,
was a voluntary in-patient in a Berkshire hospital. She suffered
from a severe mental disability which took the form of ‘an arrested or incomplete
development of the mind’, with the verbal capacity of a child of
two
and the general mental
capacity of a child of four to five. At a basic level
F
could express likes and dislikes and
was capable of experiencing emotion including affection extending to the enjoyment of
physical contact. Since admission to the hospital at the age of fourteen,
F
had made
considerable progress which would, it was said, have been entirely jeopardised should
she become pregnant. The possibility of conception was described as ‘disastrous’.
F,
who had the fertility of a ‘normal’ woman of her age, had formed a sexual bond
with another patient,
P.,
which apparently involved sexual intercourse or ‘something close
to it.’ Other forms of contraception, including the pill and the
IUD
were apparently excluded
on a variety of health grounds and sterilisation was therefore proposed. The relationship
with
P
was, according to Lord Brandon ‘entirely voluntary on
F’s
part.’
No
explanation
was given for why, it seems, sexual intercourse had been occurring for eighteen months
without conception when
F
had the fertility of a ‘normal’ woman. Moreover, in accepting
that
F’s
behavioural prognosis spoke vehemently against allowing conception or that there
existed no viable contraceptive alternative to sterilisation, the judges demonstrate, as in
Re B,
a tendency to elevate opinions and assertions of the medical profession to the status
of
‘fact’ and to use these as a basis for decision. As in
Re B,
there is some space for
an ‘alternative facts’ analysis.*
There are other links between
Re
F
and
Re B.
In the latter case it was held that the
court can, in the exercise of its wardship jurisdiction, authorise the sterilisation of a minor
where this was for the welfare and in the best interests of the ward. It
is,
however, difficult
to ignore the fact that by the conclusion of the case Jeanette, the ward, was within one
month of her 18th birthday and therefore of the termination of the court’s statutory wardship
jurisdiction, and that the litigation was undertaken then in order to avoid the situation
of uncertainty that would thereafter have pertained. Clearly
Re
B
provides no binding
2
3
4
Supra
n.1.
5
6
7
Ibid
at 557.
8
119891
2
All ER 545.
Not fully reported. [1988]
N.L.J.
Rep. 350 (December
9
1988) (QBD); [I9891
N.L.J.
Rep. 183 (February
10
1989)
(CA).
[1988]
A.C.
199
at 204; [I9871
2
All
ER
211
at 213 per
Lord
Hailsham.
[1989] 2
All
ER
545 at 553.
See
Lee
&
Morgan, ‘Sterilisation
&
Mental Handicap: Sapping the strength of the State?’ (1988) 15
J.L.S.
229 at 235 who point to a number
of
curious inconsistencies in the factual basis of
Re
B,
including an
apparent misunderstanding on the part of the House
of
Lords of the use
of
a
drug.
92
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