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hysterectomy for a 29 year old woman with severe learning disabilities as a permanent
solution for both menstrual management and contraception. In Re S [2001] there was
conflicting medical opinion about the best solution. One of the doctors was proposing a
partial hysterectomy and the other rejected surgery in favour of a mirena coil; a
contraceptive device which also has the benefit of reducing menstrual flow. The
surgeon who favoured the coil said of the proposed hysterectomy; “This is a normal
woman and we would not dream of doing it [hysterectomy] for a woman just because
of socially unacceptable periods” (p. 8).
Best interests + Bolam = bad faith?
I have examined case law which suggests that in response to difficult value judgements
about permanently removing the reproductive capacity of women with learning
difficulties, judges working within positivist frameworks have largely deferred to
medical discretion. This provides a veneer of certainty and objectivity. Beneath this
veneer of objective legal process and medical facts, the value judgements of decision
makers remain implicit. They are value judgements about, for instance, the ability of
intellectually disabled people to parent, about the use of education methods to teach and
support intellectually disabled people to lead safer sexual lives and about the value of a
woman’s physical integrity in relation to the convenience of carers. Without revealing
the values which drive these decisions, they cannot be scrutinised or discussed, openly.
Keywood (1998) suggests that the English courts may have been more concerned with
ensuring that medical practitioners are not making negligent decisions in relation to
their patients (p. 164). It is certainly puzzling that two of society’s influential
institutions which we turn to for certainty and guidance about fundamental ethical and
social issues respond with solutions which seem counter to a common sense view of
what is in the person’s best interest. For instance, why have decision makers not simply
requested that local authorities provide more help and support for vulnerable people?
Why not explore alternative approaches for carers who cannot cope with the
behavioural problems or the heavy periods that a woman with intellectual disability
suffers at times of menstruation? The combination of legal and medical value-free
decision making approaches circumvents these issues and promotes methods of
objectification which detach the necessary, subjective judgements of decision makers
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