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Narratives of Consent and Invisible Women

Dr Samantha Halliday (Durham CELLS) with Rebecca Brione (Birthrights) and Dr Jacqueline Nicholls (UCL). 

Consent is the golden principle that determines the legality of most medical treatment.  However, whilst choice is the much-vaunted central tenet of maternity care, its importance emphasised in policy documents, the lived experience is often rather different, particularly in the case of women constructed as ‘other’.  This class of invisible women includes women with a serious mental illness, women with a learning difficulty, women of colour, women who do not want to be mothers… In each case their ‘choice’, their ‘consent’ is devalued, afforded less significance by societal structures, healthcare professionals and indeed the law.

This project brings together a range of researchers and practitioners from multiple disciplines to address the issue of choice in the context of reproduction, focussing upon narratives of consent as they pertain to women who all too often are rendered invisible by the law, by the healthcare professionals treating them, or by society.  It is led by Dr Samantha Halliday (Durham CELLS), Rebecca Brione (Birthrights) and Dr Jacqueline Nicholls (UCL).

Events:

 

Law at the Frontiers of Biomedicine

Professor Shaun Pattinson

Background

This project examines the way that the current law is challenged by biomedical developments that will create, enhance or extend human life. Its central question is: how should judges and legislators understand and address the substantive, structural and conceptual challenges arising at the frontiers of biomedicine? The result will be a novel approach to legal theory. It aims to show that law is a subcategory of a secular morality and fully respond to challenges presented by the historical compromises of English law and the issues raised by three case studies on future biomedical developments.

The resulting book will be published by Hart in 2023 with the title:

Law at the Frontiers of Biomedicine: Creating, Enhancing and Extending Human Life

Funding

This project is funded by a Leverhulme Trust Major Research Fellowship, awarded to Professor Shaun Pattinson. It will run for 24 months from 1 October 2020. The funding covers a two-year lecturer appointment (to provide replacement teaching and administration cover) and the costs of attendance at conferences in connection with the project.

 

Ethical advice and ethics committees in the Covid-19 pandemic

Professor Emma Cave, Durham CELLS with PI Emeritus Professor David Archard, Queen’s University, Belfast.

Background

The research will conduct an evaluation of the role of ethics committees in the pandemic. Committees

operate at the national level - both as part of Government and in relevant professional organizations – and at the local clinical level. They produce guidance supported by statements of general principles raising questions as to the origin, status, value, relevance and timeliness of guidance and its potential to conflict. The research will evaluate the guidance and offer recommendations as to the best and most appropriate role of the ethics committees interpreting, supporting and implementing that guidance. A series of webinars will span the year, culminating in a national conference in London in July 2021.

Funding

This project is funded by the British Academy Special Research Grants: Covid-19 Scheme. It runs from 1 August 2020-31 July 2021.

Webinars held in 2020:

  • The role of professional ethical guidance in the COVID-19 pandemic with Katie Gollop QC, Prof Richard Huxtable, Dr Mark Sheehan, Prof Dominic Wilkinson

  • The role and remit of Clinical Ethics Committees in the COVID-19 pandemic with Prof Raanon Gillon, Prof Anne Marie Slowther, Dr Joe Brierley, Dr Peta Coulson-Smith

Making Decisions on Behalf of Young Children

Background

Several recent high-profile cases involve disagreements between parents of young children and healthcare professionals. Whilst parents generally make medical decisions for their very young children, their powers are limited where the child is being given medical treatment and the parental view is considered by health care professionals to conflict with the best interests of the child. Problems intensify if the parents seek treatment aboard or if the therapy they want is experimental. Where disagreement cannot be resolved, the court is often called upon to make an independent assessment. In the UK the best interests test is determinative, but there is renewed pressure to challenge its application and give greater powers to parents.

In the cases of GardHaastrup and Evans, the High Court granted the declarations sought by respective NHS Trusts: decisions that were upheld on appeal. Charlie Gard, Isaiah Haastrup and Alfie Evans were given palliative care and died soon after the final judgments. In Raqeeb, the court held that the 5-year-old could travel to Italy for further treatment, notwithstanding the view of the treating health care professionals that this would be contrary to her best interests.

The cases raise several important issues, many of which are explored in three case notes from Durham CELLS members. van Leeuwen (2020) analyses the interaction between the best interests test and the right to freely receive services in Article 56 TFEU in Raqeeb. Cave and Nottingham (2018) uphold the application of the best interests test as opposed to a test of significant harm. Cave, Brierley and Archard (2019) highlight problematic aspects in the application of the best interests test in Raqeeb

Inaugural Annual Lecture

In the 2020 Durham CELLS inaugural Annual Lecture, Katie Gollop QC explores the issues further, asking who decides when parents seek to take children abroad for treatment health care professional considers to be contrary to the child’s best interests.

Key Project Outputs

Van Leeuwen, Barend (2020). Free movement of life? The interaction between the best interests test and the right to freely receive services in Tafida Raqeeb., Public Law.

Cave, Emma, Archard, David & Brierley, Joe (2019). Making decisions for children: Accommodating parental choice in best interests determinations. Barts Health NHS Trust v Raqeeb [2019] EWHC 2530 (Fam); Raqeeb and Barts Health NHS Trust [2019] EWHC 2531 (Admin). Medical Law Review

Cave, Emma & Nottingham, Emma (2018). Who Knows Best (Interests)? The Case of Charlie Gard. Medical Law Review 26(3): 500-513.

 

Obstetric Violence and the Law

Dr Camilla Pickles

Background

Obstetric violence and the law is an ongoing project that started at the University of Oxford in 2017, under a British Academy Postdoctoral Fellowship. The project explores what ‘obstetric violence’ means, how it manifests in different contexts and it asks how the law should respond to this form of violence against women.

Obstetric violence is a global issue that plagues women’s childbirth experiences within healthcare facility contexts. This form of violence concerns disrespectful, abusive and coercive treatment of pregnant and birthing people during childbirth and it results in the violation of their autonomy, human rights and sexual and reproductive health.

Some examples of obstetric violence include medical neglect, verbal and physical abuse, humiliation, shouting, scolding, threatening, and crude and aggressive attacks on women’s sexuality. At times, healthcare professionals intentionally employ these tactics to assert authority, remove women’s agency and cast shame on them for breaching gender norms. Performing procedures without informed consent, with coerced consent, or performing procedures by an order of court are also deemed examples of obstetric violence.

Procedures that have been identified as forms of obstetric violence are those that are imposed on women as routine (without having any clinical indication or evidence base) and without informed consent. These include unnecessary caesarean-section procedures and episiotomies, manual revision of women’s uterine cavities without pain relief, inserting long-term birth control mechanisms directly after birth, collective vaginal examinations for training purposes, restraining women to their beds, and forced or coerced sterilisations.

Obstetric violence is characterised as a form of gender-based violence and it is rooted in broader gender inequalities. Thus, obstetric violence is a type of violence that takes place an individual and structural level and it violates women’s physical and/or psychological integrity; treating them as lesser beings within the maternity care context.

Key Project Outputs

C Pickles and J Herring (eds) Childbirth, Vulnerability and Law: Exploring Issues of Violence and Control (Routledge, 2019)

C Pickles & J Herring (eds), Women’s Birthing Bodies and the Law: Unauthorised Intimate Examinations, Power and Vulnerability (Hart, forthcoming)

 

Criminal Justice Responses to Maternal Filicide: Judging the Failed Mother

This project examines criminal justice response to women suspected of killing their newborn children. The research analyses court transcripts of criminal hearings of women who have been convicted of offences related to newborn child death in England and Wales between 2010 and 2019. The key finding from this project is the connection drawn between pregnancy and expectations of motherly behaviour: it is assumed that women will put the needs of the foetus before their own, and so act to protect their unborn ‘child’. Such expectations fail to consider the incredibly difficult situations accused women find themselves in and the experience of a crisis pregnancy. Emma concludes that, despite the born alive rule, criminal law is being applied to punish women who have failed to embody the role of the ‘responsible’ pregnant woman, and so the ‘good’ mother. The use of criminal law in this way has serious consequences for women’s rights, and the ethical and legal challenges of legally controlling and regulating behaviour in pregnancy.

  • This project is funded by CHASE: Consortium of the Humanities and the Arts South-east England PhD Studentship Award (AHRC) AH/L503861/ and the Socio-Legal Studies Association Research Grants Scheme 2018.

 

Prosecuting, Defending, Sentencing: Infant Killing and the Role of the Law and Courts in England and Wales

In 2021 Dr Emma Milne will be starting a new project looking at attitudes and perspectives of core legal professionals (solicitors, barristers, prosecutors, and judges) to criminal law and criminal justice responses to women suspected of killing newborn children or harming foetuses. Emma’s previous research has illustrated which laws are used and what is formerly said about accused women during criminal hearings, but there remains a gap in our knowledge about the perspectives of those who work to apply the law. Qualitative interviews with legal professionals will directly address this under-researched issue. This research will promote understanding of the societal contexts of professionals’ responses, examining how gendered ideas of women’s roles as mothers, and perceptions of female offending, figure in professionals’ assessments of these cases. The project will also address how legal professionals understand and interpret the law around pregnancy and the start of life, so assessing the connected legal and ethical issues. As such, this research will enable clearer conclusions to be drawn about the law’s current appropriateness.

  • This project is funded by the BA/Leverhulme Small Research Grants 2020.