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(Superintendent of Belchertown State School ν Saikewicz 370 nypocnsy ; and the ... Support: TheJ Persistent Vegetative State' t u b e c o u l d a m o u n t t 0 ...

Legal Developments Non-therapeutic Sterilisation of intellectually disabled children: Should the courts decide?


authorise sterilisation without court approval where it was "obviously" in the interests of the welfare of the child and then set out guidelines for when the need for sterilisation could be considered In the recent case of Secretary, Department of to be "obvious". McHugh J held that the parents Health and Community Services ν JWB and SMB could authorise sterilisation if the circumstances (Marion's Case) ((1992) 175 CLR 218), a majority were so compelling that the welfare of the child of judges of the Australian High Court held that justified the invasive procedure involved, the Family Court has jurisdiction to authorise the T h e s e c o n d i o n w a s whether> if t h e p a r e n t s sterilisation of an intellectually disabled child c o u l d the sterilisation l a w f t m authorise where such a procedure is considered to be in the d u r e > t h e F a m i l y C o u r t of Australia had best interests of the child. jurisdiction to do so. The majority of the High This decision is in stark contrast with the Court responded that it did. Canadian case of Re Eve ((1986) 31 DLR (4th) 1), Λ % K TT L TT ^ J in which the Supreme Court held that courts Because Deane and McHugh J J had reached the should never authorise a non-therapeutic conclusion that the parents could authorise this sterilisation of a mentally retarded person under procedure, it was unnecessary for them to answer this their parens patriae jurisdiction. Question. However, McHugh J said that he Family Court could step in if for some reason the The judgments in Marion's Case are complex parents were "disqualified" from giving their and deserve closer examination than can be given c o n s e n t such as where there was some conflict of in this column. Suffice to say that the High Court interest between the parents' wishes and the had to consider two main questions in relation to w e i f a r e of the child. Similarly, Deane J was of the an application by the parents of "Marion", a o p i n i o n t h a t the Family Court should authorise 14-year-old mentally retarded girl, for the t h e procedure where sterilisation was not performance of a hysterectomy and an «obviously necessary", ovariectomy upon their daughter. ~u r 4 4 . u *u *u • Mason CJ, Dawson, Toohey and Gaudron JJ The first question was whether the parents as , , . .. . ,., ,, M ' . AiA ' t U o _ «„ti^rîtv . . . * χ* · ιΑ λ. ι held that while the parents did not nave authority A7 joint guardians of Marion could themselves Λ .. . •.^κΓ«*:^« ^ A τ?ο«,;κ, rvmt* Α\Α ί c u *u *u * ·ι· *· Λ rrU to authorise sterilisation, the Family Court αια lawfully authorise.the sterilisation procedure The jurisdiction and, in exercising its majority answered this question in the negative. j u r i s d i c t i o n > ¿ f u n c t i o n o f t h e C o u r t w a s t 0 Mason CJ, Dawson, Toohey and Gaudron JJ decide whether sterilisation was in the best delivered a joint judgment to the effect that the interests of the child. They went on to say (at 259): parents did not have the power to decide to ,. , sterilise their daughter unless the sterilisation "it is not possible to formulate a rule which procedure was the incidental result of surgery will i d e n t i f y cases w h e r e sterilization,is in performed to cure a disease or correct some [ the l b e s t interests. But it should be malfunction. Brennan J agreed that parents' or emphasized that the issue is not at large, guardians' authority is wide enough to permit Sterilization is a step of last resort. And that, i n itself them to authorise therapeutic medical treatment, > identifies the issue as one within whether or not it involves sterilisation, but that narrow confines." this authority did not extend to the authorisation Qnl B r e n n a n j w a s 0 f the opinion that the of non-therapeutic sterilisation. j u r ¡ s d i c t ion to authorise Family Couft had m In contrast, Deane and McHugh JJ answered non-therapeutic sterilisation and his judgment the initial question in the affirmative. Deane J closely follows the reasoning of that of the stated that the parents did have the authority to Supreme Court of Canada in Re Eve. October 1993 69

In the latter case, La Forest J, in delivering the judgment of the court, stated (at 32): "The grave intrusion on a person's rights and the certain physical damage that ensues from non-therapeutic sterilization without consent, when compared to the highly questionable advantages that can result from it, have persuaded me that it can never safely be determined that such a procedure is for the benefit of that person. Accordingly, the procedure should never be authorized for non-therapeutic purposes under the parens patriae jurisdiction." Some of the factors which influenced the decision in Re Eve included the fact that sterilisation is irreversible and that it is not ordinarily performed for the purpose of medical treatment. The Court was also concerned about the body of evidence before it that non-consensual sterilisation has a significant negative psychological impact on the mentally handicapped. La Forest J also pointed out that the argument that mentally disabled persons are not fit to be parents is value-laden and is irrelevant in deciding what constitutes the best interests of the person concerned.' In reaching a similar conclusion, Brennan J stated that non-therapeutic sterilisation could never be authorised by parents or by the courts because "non-therapeutic purposes are, by definition, related to social values or values other than the maintenance and enhancement of the natural attributes and functions of the intellectually disabled female child" (at 276-277). ΟΤΤΛ τ u Ar-A τι ΧΛ Mason CJ, Dawson, Toohey and Gaudron JJ , -Jj r*u · ι · ι· *· c also considered some o t h e social implications of the sterilisation of intellectually disabled children in reaching the conclusion that Marion's parents were not able lawfully to authorise her sterilisation However, they did not go on to consider such factors in relation to whether or not the Family Court should be able to authorise such a procedure, primarily because neither the appellant nor the respondents involved in the matter suggested that the Family Court did not have such jurisdiction. M^^k^ucc i« Λ~*Λ;*~ ffcot ^ o normte w Nevertheless, in deciding that the parents had no power to authorise sterilisation, these four judges were influenced by three factors. First, there was a significant risk of a wrong decision being made because those attempting to determine the capacity of the intellectually disabled child, including doctors, might be affected by commonly 70


Legal Developments

held misconceptions about the abilities of those with intellectual disabilities. Secondly, the impact of sterilisation upon an intellectually disabled child might have far-reaching consequences in that the consequences of sterilisation are not merely biological but are also social and pathological in nature. Finally, the decision by a parent that an intellectually disabled child be sterilised may involve independent and possibly conflicting interests of the parents and other family members. Given the difficulties which arise from such considerations, the question must be asked: why should the judges of the Family Court be in a better position than the parents of an intellectually disabled child to authorise non-therapeutic sterilisation? La Forest J, in Re Eve, perhaps best summarised the problems associated with allowing judges to decide what is in the best interests of an intellectually disabled child when he stated (at 32-33): « T h e irreversible and serious intrusion on the b a s i c r i g h t s 0 f t h e individual is simply too g r e a t to allow a court to act on the basis of possible advantages which, from the standpoint of the individual, are highly debatable. 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. If sterilization of the F * « · Λ ^ „ * ;, ** u a *A^*»A OC mentally incompetent is to be adopted as J £ ^ ^ , t h e the appropriate body to do so. It » ^ m f o r m ¡tsdf ^ it is k k ) n attuned to the feeUngs of the public in making K kfve F


Applications to the Family Court for the sterilisation of intellectually disabled children will probably be few and far between, but it will be interesting to trace the development of the "best interests of the child" test in future cases. Marion's Case raises a host of troubling social q u e s t ions and perhaps the last word should £ , ¿ ^ ;: T *£, 0ΧΊΛ. b e left t o B r e n n a n J (at277) ' "[T]his is an area of the law in which it is necessary to guard against tyranny which majority opinion may impose on a weak and voiceless minority If equality under the JOURNAL OF LAW AND MEDICINE — Volume 1

law, human rights and the protection o f

Legal Developments

minorities are more than the incantations of legal rhetoric, it is in this area of the law that they have real work to do."

patient's life to an end actively such as by administering a lethal drug? Endnote In their judgments in Bland's case, Lord Goff of Chieveley and Lord Browne-Wilkinson were 1 Compare the approach of the New York Court of Appeals obviously aware of this ethical dilemma. The {In Re Storar 420 NE 2d 64 (1981)) where it was held that f o r m e r s t a t e d (at 368-369) that "the drawing of guardians cannot depnve a child of hfesavmg treatment, with . · . A\«*i~~*\~~ «.«« ÌLA ^ « ~u^~~ ~f 1 δ the decision of the Massachusetts Supreme Court * àMBGtloa may lead t o a charge o f (Superintendent of Belchertown State School ν Saikewicz 370 nypocnsy ; and the latter posed this question (at NE 2d 417 (1977)), where it was held that the judiciary could 387): properly adopt a substituted judgment test for the intellectually


"How can it be lawful to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by a lethal injection, thereby saving his family from yet another ordeal to add to the tragedy that has already struck them? I find it difficult to find a moral answer to that question." In assessing whether or not the withdrawal of the artifical means of feeding Bland by nasogastric

Death by the withholding of medical treatment and death by lethal injection: Is there a difference? ,. .. . . . á£m. , Λ , „ w .„ T In his article entitled Withdrawal of Life Support: TheJ Persistent Vegetative State' t u b e c o u l d a m o u n t t 0 a c r i m i n a l o f f t h e Conundrum" ((1993) 1 JLM 35), Ian Freckelton H o u s e o f L o r d s h a d t 0 c o n s i d e r t h e extent of examined some of the implications of the House t h e d u t o w e d b t h e h o s p i t a l a n d t h e doctors to TrUS ?nl^^^^Ai^^ í\Alaud their patient. In general, an omission to prevent ([1993] 2 WLR 316), in which it was held that d e a t h P i s n o t a n „ a c t u s r e u s „ f o r t h e s medical practi ioners may lawfully discontinue o f t h e c r i m ¡ n a l l a w a n d c a n n o t i v e r i s e t 0 a life-sustaining treatment, including nutrition and c o n v i c t i o n f o r m u r d e r . However, where there hydration m circumstances in which a patient is in e x i s t s a d u t t 0 d o a c e r t a i n a c t w h i c h a n a c c u s e d a persistent vegetative state" It will be recalled f a i l e d t 0 ¿ t h a t o m i s s i o n c a n c o n s t i t u t e t h e that the facts giving rise to the House of Lords a c t u s r e u s o f h o m i c i d e , either murder or decision centred around the future medical care mans laughter, depending upon the "mens rea" of and treatment of Anthony Bland, who had been t h e a c c u c e d one of the victims of the 1989 Hillsborough ' Football Ground disaster. At the time of the Therefore, if the hospital and doctors were disaster, Anthony was aged 17Vi and he suffered under a duty to provide Anthony Bland with a severe crushed chest injury which gave rise to medical care and food for an indefinite period, the hypoxic brain damage. His condition deteriorated withdrawal of artificial feeding, even though a such that he was considered to be in a "persistent mere omission, would amount to a breach of that vegetative state" with no hope whatsoever of duty and would therefore constitute homicide. Η Τ Γ η ^ · F?*c™t0ïl . r ^ . t h t t h e 1STi Why did the House of Lords hold that there was Wlth0Ut 1 dlfflculties ω α l e f t t T n n . ^ A no such duty of care in this case? The court relied many questions unanswered. u p o n a p n > g m H o u s e Q{Lords d e d s i o n / f | R e F One difficulty arising from this decision which ([1990] 2 AC 1), which laid down the principle is of particular concern in the criminal law context that, based on concepts of necessity, a doctor can is that the withdrawal of treatment and care from lawfully treat a patient who cannot consent to those in persistent vegetative states is lawful, treatment if it is determined to be "in the best whereas active intervention remains unlawful and interests" of the patient to receive such treatment, may amount to murder. That is, if doctors can Following on from that principle, it was held that now withhold treatment and care from those in the right to administer invasive medical care is persistent vegetative states thereby causing death wholly dependent upon such care being in the best by omission, why are they not able to bring a interests of the patient. October 1993 71

The critical issue therefore became whether or not it was in the best interests of the patient to continue the invasive medical care involved in artificial feeding. The medical evidence was such that continuance of medical treatment would confer no benefit on Anthony Bland, and -. , - TT r τ A u iJ*u • accordingly, the House of Lords held that existence in the persistent vegetative state was not in the best interests of the patient. Thus, there was no duty to provide Anthony Bland with medical care and food for an indefinite period of time and the withdrawal of artificial feeding would not amount to a crime for the purposes of the law of homicide. An omission to provide medical treatment in such circumstances is therefore lawful. However, Lord Goff of Chieveley was careful to point out that an omission is not the same as the taking of some positive step to bring the life support to an end, because "the law does not feel able to authorise euthanasia, even in circumstances such as these; for once euthanasia is recognised as lawful in these circumstances, it is difficult to see any logical basis for excluding it in others" (at 369). Why should there be a difference between an omission and a positive act in these



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circumstances? Lord Goff of Chieveley went on to ( a t 359); . ... -. ... ;ff^^^ ;* OJ1(J o n the other from a fatal injection, the former being permissible and the latter (euthanasia) prohibited?"



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