by Louise Austin, PhD Candidate in Law (1+3 ESRC), Centre for Health, Law, and Society and Centre for Ethics in Medicine, University of Bristol
At the SLSA’s Annual Conference, I presented a working draft of a paper co-written with Dr Sheelagh McGuinness. The paper, provisionally titled ‘Medical Treatment, Miscarriages and Consent’, explores a legislative gap concerning information provision and consent for disposal of pregnancy remainspre-24 weeks’ gestation. It examines how case law could be used to overcome that gap. It was presented as part of the Medical Law, Healthcare and Bioethics stream convened by Jo Samanta and Glenys Williams. The presentation provoked interesting comments and discussions both inside and outside of the presentation session. This blog summarises the paper presented.
Gap in the Law
The paper arose out of research conducted as part of the Death Before Birth (DBB) Project,which examined the extent to which Human Tissue Authority (HTA) guidance on disposal of pregnancy remainshas been incorporated into hospital policies.The guidance sets out different options for disposing of pregnancy remains and requires that women are informed of all options before their consent to disposal is sought. However, the DBB research revealed a wide variation between Hospital Trusts as to which options were offered, with women who miscarried at home often being excluded from information about disposal even when they had sought medical advice.
This variation and exclusion arose from the lack of a mandatory legal obligation to seek consent to disposal of pregnancy remains. Pregnancy remains are regarded as the woman’s tissue. The HTA has a statutory function to regulate organisations who remove, store, or use human tissue through a system of licensing and inspection. Disposal human material is not subject to the same statutory rules as removal, storage, and use; i.e. consent to the specific disposal practice is not required. As a consequence, the extent to which women receive information on the different disposal options available varies according to the hospital attended, or if she miscarries at home, where advice is sought. Following a request from the Chief Medical Officer in 2014 the HTA produced guidance on disposal of pre 24 week pregnancy remains with a view to improving consistency practices across hospitals. The DBB research revealed that these differences impact women in different ways leading to confusion as to what options are available, or affecting the grieving process when women later discover other options were available for disposal which they were not made aware of.
Overcoming the Gap
Our paper explores how Montgomery v Lanarkshire Health Board– the leading case on informed consent to medical treatment – can be used to overcome this gap and to ensure women (including those miscarrying at home) are fully informed about the disposal options available.
Montgomeryheld that when seeking informed consent to medical treatment, doctors had a duty to ‘take reasonable care to ensure that the patient is aware of […] any reasonable alternative or variant treatments’.Our paper will argue that where women receive medical treatment for miscarriage, disposal of pregnancy remains should be seen as part of the continuum of medical treatment. As such, disposal options fall within the alternative/variant treatment requirements of Montgomeryand women should be given advice about all options.
If that is not accepted, the judges in Montgomery said the decision was relevant ‘to other healthcare providers’ beyond doctors because ‘a wide range of healthcare professionals now provide treatment and advice.Disposal of remains of pregnancy after miscarriage, either within a hospital setting or at home, can be seen as part of the woman’s healthcare as ‘health’ is defined by the World Health Organisation as ‘the state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity’.Given the potential for the lack of information to impact upon the grieving process, information about disposal options can affect a woman’s mental and social wellbeing and so falls within the scope of healthcare. This means Montgomerywould apply, requiring women to be given information about all disposal options even if our argument that disposal forms part of the continuum of medical treatment is not accepted, or where women who have sought advice miscarry at home.
This blog has given a brief overview of some aspects of the paper we hope to publish later this year. The paper aims to use existing case law to overcome the legislative gap relating to information provision and consent for disposal of pregnancy remains. It is important this gap is addressed in order to mitigate the impact on women of the absence of information and options.
The term ‘disposal of pregnancy remains’ is drawn from the Human Tissue Authority’s Guidanceon remains the disposal of pregnancy remains following pregnancy loss or termination (March2015) which is referred to in the paper, although women miscarrying use different terms to describe the remains, including fetus and baby.
Information about the Project can be found at http://deathbeforebirthproject.org.
Human Tissue Authority, Guidanceon remains the disposal of pregnancy remains following pregnancy loss or termination (March2015) <https://www.hta.gov.uk/sites/default/files/Guidance_on_the_disposal_of_pregnancy_remains.pdf> accessed 9 April 2018.
<https://testprojectwebsiteblog.files.wordpress.com/2017/09/death-before-birth-hta-report-2017.pdf> accessed on 9 April 2018.
World Health Organisation, Health Systems Strengthening Glossary<http://www.who.int/healthsystems/Glossary_January2011.pdf> accessed 9 April 2018.