Disability, Chronic Conditions and Rehabilitation

Sex, Sex Surrogates, and Disability

Recently a debate erupted in France over a proposal to use state funds to pay for sex surrogates for the disabled. News reports can be found here and here. Some advocates for the disabled applauded the move, including the French Association of the Paralyzed. However, the proposal was eventually altered and the call for the funding of sex surrogates was dropped before a vote on the proposal was held. This is a shame, for respect for the autonomy and the wellbeing of the disabled provides us with good reason to support such a proposal.

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Too long in gestating: an overdue inquiry into the Abortion Act

Whatever your view of abortion, there are too many abortions, and too many of them are too late. Even abortion’s fiercest advocates don’t pretend that it’s a Good Thing – just the lesser of two evils.

In 2010 there were 189,574 abortions in England and Wales – an 8% increase in a decade. The tightly policed regime envisaged in 1967, when the Act became law, hasn’t existed for ages, if indeed it ever did. There is abortion on demand, whatever the statute book says.

1967 was a long time ago. There have been many medical advances and societal changes since then. It’s time to take stock of the Act.

That’s what a recently announced cross-party commission, to be chaired by Fiona Bruce MP, will do.

It will focus, rightly, on two issues: medical advances and attitudes to discrimination. Continue reading

Amnesia and remorse: how much should we expect?

When people do bad things – especially when they cause a lot of harm to others – we usually hope that they will experience something like remorse: that they will feel horror at the thought of what they did to the person harmed, that they will resolve to avoid causing similar harm in the future, and that they will be motivated to apologise and offer reparation, where possible. Penal systems in some jurisdictions deem remorse so important that it is considered a valid reason to mitigate the amount of punishment the offender receives. But, what happens to our expectations for emotion if the person cannot remember committing the offence; if he feels so detached from it that it is as if he did not commit it? An interesting case from Poland raises this question.

Maciej Zientarski was a celebrity driver on a TV programme similar to our Top Gear. On the 27th February 2008, accompanied by his motor journalist friend, he was given a Ferrari to test drive. The test drive didn’t end well. CCTV cameras captured footage of the car being driven at speeds of between 140-150kph along a 50kph road, serial over-taking, and the eventual head-on smash into the pillar of a bridge above. The motor journalist died at the scene but the driver, remarkably, just about survived.  Continue reading

Abortion and the cognitively impaired mother

It will be interesting to watch the reception of a recent Court of Protection case, as yet unreported, in which a woman with profound learning difficulties was found to have capacity to decide not to terminate her pregnancy.

As so often, the case decided nothing new. But it is a timely reminder of the trite but often overlooked principle that capacity is not an all or nothing thing. The question: ‘Does she have capacity?’ is always dangerously incomplete. The correct question is always ‘Does she have capacity to decide X?’

There was no doubt that she did not have capacity to manage many aspects of her affairs. She was in the bottom 1% of the population so far as intellectual function was concerned. Deputies were appropriately appointed. But, so far as the continuation of her pregnancy was concerned, so what?

It was decided as a matter of fact that she had capacity to decide whether or not to continue with, or to terminate, the pregnancy. And that meant that the Court of Protection had no jurisdiction to decide the matter. No best interests determination could lawfully be made. Continue reading

A Dyslexic boy in a Trojan horse

‘Come in’, said the Well Known Educational Psychologist. We did. ‘Please sit down’, she said, and we did. She didn’t waste time, and quite right too. We wanted to know.

‘Tom and I have had a very interesting afternoon.’ That sounded bad.

‘He’s a very able child indeed’. That sounded worse, because it came with the emphatic pause that always indicates a big ‘but’.

In the pause I wondered why we’d done this. Why we’d taken a little boy out of the woods and out of his playground to have someone fumble inside his head with blunt tools: indices, probes, inventories, and assumptions about normality.

‘He’s quite dramatically dyslexic, I’m afraid.’ My wife shared her fear. There was a lot of it sloshing around. ‘But his IQ is so high that he’ll be able to use lots of coping strategies. And he’s still very young: there’s lots that can be done.’ And she told us what it was. Regulations could be invoked, tribunals could be convened, cards could be flashed, phonemes could be chanted. He could be imprinted like other children. It would just take longer. It would be hard work, for Tom and for us, but there was every reason to be hopeful of a ‘good result’.

And what the hell did that mean? I asked myself. I was too polite to ask her. I didn’t want a result. I wanted my son. Continue reading

The Continuing Tragedies of Home Birth and the Rights of the Future Child

By Lach De Crespigny and Julian Savulescu

Windsor Coroner’s Court has heard that a mother died within hours of giving birth at home after a private midwife committed a horrifying catalogue of errors . According to reports, the woman had previously delivered twins by emergency caesarean section, one of which later died. Her husband said his wife was ‘brainwashed’ into having a home birth by the midwife, who insisted it was safe. The Royal College of Obstetricians and Gynaecologists advise delivery in hospital after caesarean section so that an emergency caesarean delivery can be carried out if necessary. The midwife denied trying to persuade the couple to have a home birth. However she has greater responsibilities than this; as professionals we should try to persuade women to deliver in hospital if this is a safer option. But the midwife seems to have prioritized homebirth over life itself when she reportedly stated:

“Claire had a great pregnancy, she had a really lovely spontaneous birth at home and I hope Simon in time will remember that”

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To kill or to violate?

By Charles Foster

A highly intelligent 32 year old woman has profound anorexia. She has had it for years. It is complicated by alcohol and opiate dependency, and by personality disorder. Her BMI is 11.3. A healthy BMI is around 20. Less than 17.7 is in the anorexic range. Less than 14 indicates dangerous weight loss. Over the last 4 years her BMI has been well below 14. She describes her life as ‘pure torment’. All the things she wanted to do have been frustrated by her illness. She feels unable to give anything to the world, or to take anything out. For years she has had intense treatment for her anorexia and related conditions. On about 10 occasions she has been sectioned under the Mental Health Act. One of those periods lasted almost 4 months. Twice she has executed advance decisions refusing life-saving or life-prolonging treatment.
There are only two options: death or the violation of her autonomy . If she is not admitted against her will to hospital, detained there for not less than a year, and forcibly fed under physical or chemical restraint, she will die. She understands this perfectly well. She doesn’t actively seek death, but doesn’t want to be force fed. As well as the anorexic’s usual horror of calories, the forcible medical administration of nutrition reminds her horribly of the sexual abuse she suffered as a child. Continue reading

Bad seed is a robbery of the worst kind: prolific sperm donation and screening

New York Times writes about “In Choosing a Sperm Donor, a Roll of the Genetic Dice”: recipients of sperm donation have found out the hard way that there is a risk of genetic disease affecting their children. In at least one case a donor with a clean bill of health and who had, according to the laboratory, been tested for genetic conditions. Unfortunately he turned out to be a carrier for cystic fibrosis like the mother, and the child suffered. Other cases of transmission of genetic conditions to multiple children from a single donor have appeared, suggesting a need to do something. Is there an ethical need for ensuring genetic testing in the case of sperm donation – or is the problem that some donors father many children?

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Arbitrary Execution: Why the Law Needs Help from Neuroscience, Psychology and Philosophy

On February 29th, 2012, Robert Henry Moormann was executed in Arizona for murder. Back in 1984, he was in prison for kidnapping and molesting an eight year old girl, when the state gave him three days of compassionate leave. His elderly adoptive mother took a long bus trip to go and meet him. After an argument in a motel room where she was staying, he beat, stabbed and suffocated her, then dismembered her body. He asked a number of local businesses if he could dispose of “spoiled meat and animal guts” in their refuse containers, before disposing of most of her remains in bins and sewers around town. He also asked a prisoner officer to dispose of a box of what he described as “dog bones”. This behaviour raised suspicion. Moormann claimed not to remember the details of the crime, and at the original trial, Moormann’s lawyers mounted a defence of insanity. The jury rejected it. Since 1985, he had been living on death row while his appeals process was gradually exhausted.

In light of the gruesomeness of his crime, it is easy to think that if anyone ever deserved the death penalty, Moormann did. But the contention of Moormann’s defence lawyers that he was intellectually disabled casts a new light on the case.

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There’s nothing that lawyers shouldn’t do

By Charles Foster

A patient in his 40s with locked-in syndrome, referred to in court only as ‘Martin’, wants to die. His wife cannot bring herself to help him. He would therefore need help from others. He is concerned that would-be helpers might face prosecution under the assisted suicide legislation. In the latest line of attempts to clarify the way that the law of assisted suicide actually works, he will challenge, by way of judicial review proceedings, the criteria used by the DPP in deciding whether or not to prosecute people who assist suicide. The exact nature of that challenge doesn’t matter for present purposes. What does matter is that his lawyers, in preparing the judicial review proceedings, might have to do things that fall within the (necessarily) wide ambit of the offence of ‘encouraging or assisting suicide’. They might, for instance, have to communicate with Dignitas, and find out whether there is a doctor who would be prepared to assist.

Martin’s lawyers therefore sought and obtained a declaration that they could prepare his case without putting themselves in jeopardy. This was hypercautious, and perhaps artfully, strategically melodramatic. But one can hardly blame them for wanting to be safe, and of course it was right to grant the declaration. Whatever one thinks of the morality of assisted suicide or the legal merits of the judicial review application, the court door must be open to everyone. Lawyers must be able, freely and fearlessly, to facilitate the making of even absurd, outrageous, and downright evil submissions. To facilitate an evil submission is a good thing – a public service: it allows the court to express its disapproval.

Law is not an immutable monolith. It doesn’t spring fully formed from the loins of the legislature. It is chiselled by all sorts of people – but most notably by judges, assisted by the contentions of lawyers – until it’s workable and fits the demands of the society it is supposed to reflect, serve and sustain.

Lawyers, then – and particularly the most cynically mercenary of litigators – are essential public servants. Their professional ethics demand that they put personal preference to one side in fulfilling this function.

This is very costly for the lawyers themselves – although I’m not expecting much sympathy. St Paul observed that a man who sleeps with a prostitute ‘becomes one with her’ – unites his soul with her. And when he pulls away he leaves a bit of his own soul behind. Eventually he’s not got much of his own soul left: it’s distributed around the brothels.

It’s rather like that with lawyers. Lawyers stand on metaphorical (and sometimes actual) street corners with their gowns hitched up, ready to sleep with whoever drives up. If you identify sufficiently with your client, you’ll eventually lose what you are. That great theologian Horace Rumpole noted that the first casualty of the law is sensitivity. The second is your soul. Lawyers, for a decent hourly rate, make a Faustian bargain. It’s negotiated by their Mephistophelean clients, but the soul’s ultimately eaten up by the Greater Good.

Note what’s really happening here. The lawyers don’t, at least at first, change their own beliefs. Personal morality isn’t ablated: it just keeps its mouth shut, thinking, because of the Bargain, that it’s not entitled to a voice. Philosophically minded lawyers might try to justify the Bargain to themselves in the early hours of the morning by saying that the public utility of free expression is a good so great that its service (even when it means the truncation of oneself) is perfect freedom.

The trouble with not using voices, limbs and consciences is that they atrophy. Being a lawyer is desperately dangerous. But the risk isn’t taken just for £400 an hour: it’s taken for you. I hope you’re grateful.

So: by signing the professional register, lawyers have signed away the right to conscientious objection.

But they are, I think, the only professionals who do this. Julian Savulescu is wrong to insist that a doctor who refuses to do abortions should – at least if there’s an insufficient supply of abortionists – forfeit her right to be a doctor[1]. A doctor who leaves her conscience along with her shoes outside the operating theatre is simply a bad doctor. Whole human beings need to be treated by whole human beings, and a doctor whose conscience has been excised pursuant to some misguided deference to supposed professional obligation is not a whole human being. Just as a proper doctor is not a mere functionary, doing what the patient insists, so a proper Parliamentarian is not merely a mouthpiece, slavishly parroting, but in Parliamentary language, what his constituents say. Burke rightly said: ‘Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.’[2]

Lawyers – or at least litigators in any country where the courts can be trusted- are in a unique position. Their right of conscientious objection evaporates because, if it persisted, some things might be left unsaid, unexamined, and unjudged – to the detriment of the society of which we are all a part. There are no compelling analogies with other professions (and no, journalists don’t come close).

So: hug a lawyer: he’s risking damnation on your behalf.


[1] Conscientious objection in medicine, BMJ 2006: 332; 294

[2] Speech to the Electors of Bristol, 3 November 1774: Works 1: 446