Chapter 5 - Incapable adults and children
Two new patients present at the Early Pregnancy and Gynaecology Unit. Kayla is 17 years old and 16 weeks pregnant, Roberta is 19 years old and 20 weeks pregnant. Kayla is still at school and currently studying for her A-Levels. Roberta lives in a care home and has a learning disability. She is estimated to have a mental age of around nine years of age. She is in a long-term relationship with a 22 year old partner who also has a similar learning disability.
Both patients are accompanied by their respective parents, who request that an abortion be carried out. In Roberta's case, it is further requested that she be sterilised in the same procedure in order to prevent another pregnancy. Whilst Roberta expresses no dissent or assent to the suggested termination and sterilisation, Kayla refuses and repeatedly expresses the wish "to keep the baby". The staff nurse decides to ask the administrator to get Marc, from Rowlett McGuinness LLP, and a member of the hospital's clinical ethics committee, Simon, to come and advise the parties on how to proceed.
Marc advises that whilst each patient must be treated separately, a pregnancy termination on social grounds is entirely possible under section 1(1)(a) of the Abortion Act 1967 (p. 190). What makes these two cases special is the fact that the termination is not requested by the patients themselves, but by their respective parents.
With respect to Roberta, Marc notes that while the courts used to be sympathetic to requests to sterilize adults with learning disabilities, they have for some time now come to the conclusion that improved supervision rather than sterilisation may be a more appropriate way of proceeding. This is particularly the case if Roberta lacks the capacity to consent to sexual intercourse itself – in this case there will be a duty of care imposed on her carers not to allow what would amount to sexual abuse. Moreover, the Mental Capacity Act 2005 (p. 110) makes the possibility of such sterilizations even more rare. A sterilisation would only be lawful if it were in Roberta’s best interests, and Marc states that both the Act and Code of Practice (p. 93) make clear it is the least restrictive method of achieving the treatment’s aim that will be in a patient’s best interests. He concludes, therefore, that it is unlikely that such a sterilisation would be authorised by a court. Simon says that he agrees in principle with this assessment but notes that the views of Roberta (as far as they can be determined) play an important role here. He suggests that whilst Marc's approach of ensuring that no more is done to Roberta than is proportionately necessary to achieve the aim of protecting her, the treatment team should also bear in mind that it may be in Roberta's interests to enable her to be in a loving long-term relationship. Where this can be achieved by way of supervision, without interfering with Roberta's sense of privacy, a non-invasive or irreversible intervention would be a preferable option. Where this is not possible, those involved should seek to ensure that, in the absence of the possibility of abuse, Roberta is put into a situation where she can give effect to her preferences in the best possible way. This may well include the possibility of a sterilisation and Roberta may be in a position to express a preference if the details are explained to her. Under no circumstances should the procedure be done, however, if the aim is merely to make Roberto more 'manageable' for her carers.
Kayla’s situation has been considered before in hypothetical terms, with Lord Donaldson in Re W (p. 126) noting that while the forced termination of a 17 year old's pregnancy might be legally possible, medical ethics would prevent this from occurring. There is nothing to say that this is the case, and Marc notes that if a doctor could be found who would be prepared to undertake the procedure despite Kayla’s objection the procedure would be lawful in technical terms. Simon agrees and also finds it difficult to say why Lord Donaldson thought that 'medical ethics' would in some way reliably intervene here. Nevertheless, Marc also advises that the general move of the law towards patient autonomy, and the fact that Re W does not follow the philosophy behind Gillick (p. 124), would leave it open to a court to state that the procedure would not be lawful after all. Therefore he recommends that even if someone who was willing to perform the procedure could be found, it might well be in a case such as this that the courts would choose not to follow established law. Indeed, he feels that if the courts did not do so in this case it is difficult to imagine a situation in which they would do so. Marc therefore advises the treatment team to take into account Kayla's views. Her objection should be treated as a dissent which negates possibility of others to consent on her behalf to this very invasive and traumatising intervention. Simon agrees fully and observes that medical ethics would be useful only to assist the treatment term in finding the right way in cases of uncertainty or the conflict of equal interests, which is not the case here. Medical ethics does not labour under the constraints of having to identify an age limit which determines when an individual can make decisions about herself - Kayla expresses her preferences lucidly and it would be catastrophically disrespectful of her autonomy to force her to undergo an abortion.
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