Making Law Liveable? Bringing feminist knowledge of care into the curriculum

Note: These comments were originally written for a talk I gave at ‘Liberation through Law’, an event organized by SOAS Feminist Society and SOAS Law Society, on the 25th February. I am grateful to them, particularly Aleksandra Wolek and Sabeehah Motala, and to my co-panelists, Diamond Ashiagbor, Samia Bano and Linda Mulcahy, for generating such a great space to discuss the role of feminist legal theory in the university curriculum.

My comments arise from wanting to think more about how I draw on feminist activisms and organisations as sources of legal knowledge when I teach. This has been inspired in part by the recent successful campaign against Fiona Bruce’s efforts to outlaw sex selective abortion, which involved a wide range of feminist, health and pro-choice civil society organisations, including the End Violence Against Women Campaign, the Iranian and Kurdish Women’s Rights Organisation (IKWRO), Southall Black Sisters, the Royal College of Obstetricians and Gynaecologists (pdf), Antenatal Results and Choices (pdf), the British Pregnancy Advisory Service (pdf) and Voice for Choice.  As we consider and evaluate the ways in which law regulates reproductive lives, what can we learn from the experience and expertise of feminist civil society?

Typically a key feminist topic like abortion rights is taught in a medical or health law course. And the typical things we talk about are the fact that the Abortion Act, 1967, makes abortion a matter of medical discretion rather than a woman’s decision (Sheldon, 1997). Black letter medical law treats abortion differently from most other kinds of healthcare in that women’s views are not legally relevant. What matters according to the law is whether two doctors believe that a particular pregnancy is more likely to put a woman’s health at risk if continued rather than terminated. This takes abortion out of ordinary health care, which is governed by the doctrine of consent for those who are capacitated to make healthcare decisions, and the doctrine of best interests for those who are not so capacitated. Abortion becomes exceptional and women have to negotiate the discipling effects of that regulation when they need to access abortion care. So teaching about abortion law is a great way to consider how legal paternalism makes reproductive decisions on women’s behalf and uses medical authority to distance women from their own lives.

But abortion law also mobilises old-fashioned coercive power against women and their health professionals. Women who find themselves needing an abortion on terms which fall outside of the Abortion Act, 1967, are criminalized and stigmatized. Sarah Catt, who procured her own abortion by taking the abortion pill after the 24 week time limit, was sentenced to 3.5 years in prison, reduced on appeal from an original 8 year sentence by the trial judge (Prochaska, 2012). The full force of the criminal law was brought to bear on this woman as she tried to control her reproductive life. In criticizing and contextualizing that law I, in common with lots of other teachers of health law, use a variety of strategies. One such strategy is the familiar critical doctrinal strategy of flagging up the inconsistencies in black letter law, and looking to general principles of patient autonomy in other areas of health law. I look to critical engagement with human rights norms as a tool for tackling the inadequacies of abortion regulation. And I look to theoretical arguments about voluntary reproduction as an aspect of women’s equality.

But the point I want to focus on here is that often students are surprised to learn these two things about British abortion law: that doctors’ approval is necessary for non-criminal abortions and that some abortions are still criminal. And their surprise presents teachers like me with an opportunity to raise another important aspect of feminist approaches to law and that is the significance of the gap between law and practice. In practice, in the law of everyday life, the way people experience something like legal access to abortion care can be quite different from the way it’s represented on the books (Lee, 2004). And as scholars of legal consciousness have long argued, that everyday experience of law matters. It matters because actual access has immediate impact on people’s lives. But it also matters because those everyday understandings provide important resources for challenging official accounts in their violent, coercive forms and in their disciplining and governmental forms.

One important reason why there is a gap between law on the books and law in practice in the context of abortion in contemporary Britain is due to the presence and effect of pro-choice abortion providers. The presence of a pro-choice provider like BPAS, which has been providing woman-centred abortion care since 1968, makes a profound difference to women’s experience of abortion law. Their willingness to interpret and implement the Abortion Act in light of women’s life concerns has meant that sometimes at least women experience abortion care as if law is listening to them and taking their concerns seriously. But these vital aspects of women’s experience of law, the presence of feminist civil society organisations who work hard to make law a little more liveable, often don’t make it on to the legal curriculum. Or at least they make it on the curriculum in particular kinds of ways: as initiators of judicial review actions, collaborators in clinical education and providers of legal internships.

So how might I address this when I teach about abortion and law? I’ve been thinking about this anew in light of the recent campaign by a wide range of feminist, health and pro-choice civil society organisations against Fiona Bruce’s effort to criminalise sex selective abortion.  The successful and collaborative nature of the campaign mark it out for attention in the first place; but I’m particularly curious about the ways in which it mobilised feminist knowledge of care practice.  Conservative MP Fiona Bruce, together with Jeena International, Stop Gendercide and Karma Nirvana, was initially relatively successful in mobilising concerns about abortion of female fetuses towards support for an amendment to the Abortion Act, 1967. On 4 November 2014, a majority of 181 to 1 voted in favour of debating an amendment to prohibit sex selective abortion at its first reading. But on Monday 23 February 2015, 292 MPs voted against Bruce’s amendment while 201 voted for, defeating the amendment by a 91 vote majority. Why did the momentum change and what does this change have to tell us about the role of feminist civil society in making law a little more liveable (Cruz 2013: 467 citing Butler, 2010: 31)?

In making the case for the amendment, Fiona Bruce made two arguments which looked like they addressed feminist concerns. The first was that sex selective abortion was harmful and worth prohibiting because it was discriminatory in suggesting that girl fetuses are less valuable. The second was that a prohibition of sex selective abortion would help pregnant women who were being abused and pressured into abortion for reasons of son preference. In response, a number of civil society organisations drew on their collective experience of working with women who seek access to abortion care and with women who have lived with violence. In one important intervention in a letter on 19th February, a wide range of people argued that the amendment would have the effect of criminalizing women and their doctors for sex selective abortion, that criminalisation does not help women who are experiencing sexist abuse and pressure, and that funding of support services would be a preferable alternative.

Their arguments reminded us that criminal law itself can be harmful, rather than a means of protecting people from harm, in stigmatising women and preventing them from seeking out help. Others such as Hashmat argued that taking reproductive choice away from a woman in a desperate situation does not tackle the causes of that situation and denies her options in responding to her actually existing reality. These interventions were really good examples of feminist critiques of the carceral state in action and of engagements with a critical harm reduction approach (see further Erdman, 2012; Todd-Gher, 2014; Lamble, 2013; Fletcher, 2014). These kinds of reforms can be dangerous even if they may look to have gendered concerns, because they encourage the punitive state to intervene in women’s sexual and reproductive lives, and are likely to expose women to more rather than less risk.

A second important point was that sex selective abortion is not that prevalent in the UK and is not necessarily a discriminatory decision if and when it does happen. The Department of Health has not identified any evidence of difference in sex ratios and the clinics tell us that women do not report sex of the fetus as a reason for abortion (BPAS, 2015). Fetal sex may be one part of a more complex story as when bringing a girl child into the world at a particular moment may be a threat to a woman’s mental health because she is under significant pressure to have a boy.  In making this kind of argument organisations like BPAS and Voice for Choice remind us of the important of evidence and personal stories in feminist evaluation of legal reform. Concerns about sex selective abortion practices sometimes mobilise a kind of feminist ‘common sense’ that selection must be sexist.  But any such ‘common sense’ needs to be challenged in light of contesting evidence and narrative. We can’t be in a position to decide whether a given practice is actually discriminatory and harmful until we have heard from those experiencing that practice themselves.

Feminist advocacy and care organisations are important legal actors and we could make more of them, with all their imperfections, in the legal curriculum. They provide great examples of legal ideas in practice, as they argue for sexual and reproductive autonomy in a way that is sensitive to diversity and vulnerability. They challenge the reason/affect dichotomy that permeates public debate as they mobilise affective knowledge of women’s experiences towards rational ends. And they show us how to make legal interventions by drawing on feminist experience and expertise while speaking to non-feminist audiences.

Psychiatric institutionalization, femininity, and women’s care giving in Poland

by Agnieszka Doll

Mental illness is often associated with notions of irrationality, unpredictability, and the imaginary threat of violence or possible negligence. For women who have been institutionalized in psychiatric hospitals, the stigma placed upon them takes on a polymorphous status as “mad” and “bad,” directly interfering with normative regimes of femininity. Particularly in societies like Poland with a traditional patriarchal gender order, these women may be seen as “unfit” mothers and “troublesome” wives, disruptive to the “normal” functioning of their families. The cultural script of Polish women as mothers and the primary care-givers cuts across class, profession, and place (Czerwinska, A., Lapniewska, Z., and Piotrowska, J., 2010) .Yet, for women with histories of psychiatric hospitalization, those care giving roles are denied. The Polish Public Opinion Research Center (CBOS) in 2008 and 2012 conducted surveys which show constant agreement among respondents that women with mental illness and previous hospitalization – regardless of the details of their individual prognoses – should be excluded from care taking duties for minors. This impacts both their private and professional lives as, for example, they may be denied employment as nannies or teachers. Even though the survey did not ask whether respondents perceived previously hospitalized women to be “fit” mothers, it illuminated the extent to which stigma of mental illness and institutionalization bears on women’s ability to fulfil societally assigned gender roles. Given that, women with histories of psychiatric hospitalization may experience difficulties in winning custody of their children in family law cases, for instance. When they manage to gain or uphold custody in such cases, to resist future hospitalization and to uphold their care-giving responsibilities they may need to drastically change their daily lives in an attempt to provide “proof” of their sanity (interpreted as orthodox compliance with gender norms) to state agencies, professionals or broader society. Thus, psychiatric examination and classification, particularly when imposed on women who are committed unwillingly, can function as a form of societal and institutional surveillance.

In spite of these serious implications, the process of admission to psychiatric facilities remains under-analysed. Current scholarship generally revolves around the need to find a balance between respect for personal liberties and the state’s right to protect the public from “dangerous” and “mentally ill” individuals. As well, it focuses on the negotiation of treatment needs and legal standards of due process within the context of admission. My doctoral research, designed as an institutional ethnographic study (D. Smith, 2006), aims to explore the procedure of involuntary psychiatric institutionalization of women in Poland, particularly its social organization. This is to gain a broader understanding of how knowledge about women as “pathological” subjects is produced within the process of psychiatric admission, and how this knowledge production occurring in local sites is organized and coordinated by ideological discourses, texts, and the features of organizational contexts. One of the project’s aims is to disrupt the mega-narrative of the official and “authoritative” accounts of psychiatric and legal professionals produced in involuntary admission processes that silence women’s voices and experiences. It is hoped that by illuminating how accounts of “pathological” women are produced within everyday institutional practices the notion of institutionalized women as “mad” and “bad” would be problematized.

References:

Czerwinska, A., Lapniewska, Z., & Piotrowska, J. (2010). Kobiety na “zielonej wyspie”: Kryzys w Polsce z perspektywy gender. Warszawa: Fundacja Feminoteka.

Omyla-Rudzka, M. (2012). Stosunek do chorych psychicznie. Warszawa: Fundacja Centrum Badania Opinii Spolecznej.

Smith, D. (2006). Institutional ethnography as practice. Lanham, Md.: Rowman &n Littlefield.

Wciorka, B., & Wciorka, J. (2008). Osoby chore psychicznie w spolecznstwie: Komunikat z badan. Warszawa: Fundacja Centrum Badania Opinii Spolecznej.

Agnieszka Doll is a PhD Candidate at the Faculty of Law, University of Victoria in Canada. Currently she is a Visiting Doctoral Fellow at the Bielefeld Graduate School in History and Sociology, University of Bielefled in Germany.

The Liverpool Care Pathway Controversy: Time to Revisit the Ethics of Care?

Back in July an Independent Review headed by Baroness Julia Neuberger published a report into the controversy over the use of the Liverpool Care Pathway (LCP) – a holistic plan for care of dying patients, within the acute hospital sector (Neuberger 2013) This came in the wake of a long line of recent enquiries into the standards and practices of care within the healthcare sector (Francis 2013, Patients First 2013, Keogh 2013) and in response to media headlines such as “Distraught families allege that the NHS protocol designed to allow the terminally ill ‘a good death’ is being abused” (The Telegraph 29 October 2012).

The LCP had originally been developed by the Royal Liverpool University Hospital and the Marie Curie Hospice Liverpool in the late 1990s, for the care of terminally ill cancer patients. It comprises of 10 key elements, including a recognition that the patient is dying; communication with the patient and relatives; spiritual care; reviews of medication, nutrition and hydration; and collaboration and shared decision-making. All of which are intended to be guidelines that aim to support, but not replace, clinical judgment (Ellershaw 2013, 2).

The controversy centres around the conflict between the recognition of the LCP as a model of good practice, (NICE 2003, 2006) and the findings of the Review that in reality incidents of poor treatment – “uncaring, rushed, ignorant – abound” (Neuberger 2013, 3). The title of the Review, “More Care, Less Pathway” neatly sums up its flavor. It concludes that patients were often treated with less respect than they deserved, with the use of the LCP being reduced to a “tick box exercise” and that communication with the families was inadequate or entirely absent (Neuberger 2013, 3-4).

This tension between laudable intention and implementational failure generates questions about how policy and law can effectively promote practical and realistic care practices and yet remain sensitive to the myriad of vulnerabilities experienced in the face of death. This is all the more pertinent in relation to dying, where care’s traditional preservative purpose is subverted, so that care not only reaches beyond survival but entirely precludes it. Further, the aim of the LCP to “ensure that uniformly good care is given to everyone, wherever they are (…)” (Neuberger 2013, 12) brings into sharp focus the socio-spatial notion of caring (Johnsen et al 2005). This examines the potential of such ‘caring spaces’ as the hospital, to accommodate the apparent merger between the private and the public, the intimate and institutional in the care of the dying. This in turn raises the question not only of institutional support and time for care (Groenhout 2004) but also of whose role it is to care, which feeds into the wider debate surrounding the education and training of doctors and nurses.

It seems evident that the absence of both the virtues (Engster 2005, 55) and practices proclaimed by the advocates of the Ethics of Care, such as a recognition of the relational self (Gilligan 1982), the need for particularist solutions (Bowden 1997) and a recognition of the ‘expertise’ that can arise as a result of practical engagement in caring practices (Ruddick 2009,) were instrumental in the failure in implementation of the LCP. Problems such as poor communication, with “brutal and callous” language being used by clinicians when speaking to relatives about the patient (Neuberger 2013, 25), may be remedied with training. Yet a recognition of the patient’s ‘relational autonomy’ (Nedlesky 2011) in order to foster practices of shared decision-making, or the over-coming of the apparent taboo that even healthcare professionals feel in speaking about death, (Neuberger 2013, 21) may require a more significant change of culture.

One wonders how other, more subtle aspects of the Ethics of Care as it relates to the process of dying, might be feasibly accommodated within institutional practice. How could notions of the embodied experience of the dying patient, which would provide an anchor to the notion of particularity in care, (Fox and Murphy 2013, 13) be recognized? The current link between the LCP and embodiment is a paradoxical one, with the physical body at once occupying the place as its central object, yet silenced by the routine and often unexplained use of heavy sedation and the withdrawal of nutrition and hydration, causing great distress to the relatives (Neuberger 2013, 24). Likewise the accommodation of aspects of spiritual care, such as the importance of religious and cultural aspects of dying, or the desire to place remaining lucid above pain relief in order to cherish time with their relatives (Neuberger 2013, 24). Could a caring response that may even require a retreat from the desire to minimize suffering, ever be countenanced? A recent example is found in the case of VT, a 72 year old devout muslim man whose family argued that their father, for whom they had cared devotedly for 10 years, would want his life preserving for as long as possible, even if he was suffering, as he would view that suffering as an opportunity for purification in preparation for the next life (The Guardian 13 November 2013).

Ultimately, the final recommendation by the Review that the LCP be phased out by July 2014 and be replaced by personalised care plans for each patient, backed up by condition-specific guidance (Neuberger 2013, 48) is surely right. The potential for us and our loved ones to die in accordance with our own view of a ‘good death’ is an appealing one. Yet the Review is also right that a system wide-change is needed to improve end-of-life care, and still one wonders how institutional mechanisms operating under such a nuanced and sensitive approach will be either practical or feasible?

Kirsty Moreton – Birmingham Law School, University of Birmingham.   KLM180@bham.ac.uk

 As a result of the Review, the Leadership Alliance for the Care of Dying People (LACDP) has been set up to respond to the Review’s recommendations and publish a system-wide response, primarily focusing at this stage on clinical practice. Its Engagement Document is still open for consultation until 6 January 2014 https://www.engage.england.nhs.uk/consultation/care-dying-ppl-engage.

References:

-           Bowden, Peta. 1997. Caring: Gender Sensitive Ethics. Routledge.

-           Ellershaw, John. 2013. Statement regarding LCP Review Publications. Marie Curie Palliative Care Institute, Liverpool. www.mcpcil.org.u

-           Engster, Daniel. 2005. ‘Rethinking Care Theory: The Practice of Caring and the Obligation to Care’ 20(3) Hypatia 50.

-           Fox, Marie and Murphy, Therese. 2013 ‘The Body, Bodies, Embodiment: Feminist Legal Engagement with Health’, in Davies, Margaret and Munro, Vanessa. (eds) The Ashgate Research Companion to Feminist Legal Theory. Ashgate 249.

-          Gilligan, Carol. 1982 (2nd edn 1993) In a Different Voice: Psychological Theory and Women’s Development. Harvard University Press.

-          Groenhout, Ruth. 2004. Connected Lives: Human Nature and an Ethic of Care. Rowman and Littlefield.

-          Johnsen, Sarah: Cloke, Paul; May, Jon 2005 ‘Day Centres for Homeless People: Spaces of Care or Fear?’.

-          Nedelsky, Jennifer. 2011. Law’s Relations: a Relational Theory of Self, Autonomy and Law. OUP

-          Neuberger, Julia. 2013. More Care, Less Pathway: A Review of the Liverpool Care Pathway. Independent Review of the Liverpool Care Pathway.

 -          Ruddick, Sara. 2009. ‘On Maternal Thinking’ 37 (3&4) Women’s Studies Quarterly 306.

 

Care in the first two years of life: OXPIP and the emerging discipline of parent-infant psychotherapy

By Adrian Sell, Executive Director, OXPIP: The Oxford Parent Infant Project

OXPIP is one of the organisations pioneering parent-infant psychotherapy. Founded in 1998 we have been working in Oxfordshire to provide support to parents who are struggling to form a secure attachment to their baby. In the last three years we have worked with over 900 families and consistently improved mental health and the quality of the parent-infant relationship[1]. We work with babies up to the age of two and their parents, normally the mother but we have worked with many fathers as well.

Parent-infant psychotherapy is distinguished by the attention it brings to the mother’s mental health, the baby’s mental health and, crucially, to the quality of the relationship between parent and baby. This focus on the quality of the care that comes from this early experience is critical to our success in addressing intergenerational cycles of disadvantage. We all have a tendency to default to parenting our children as we were parented, even if those relationships were withdrawn, unpredictable or harmful.

Our clinicians are skilled at enabling parents to build and sustain closer relationships with their children. One of the therapeutic tools for achieving this is through modelling thoughtful, empathic ways of relating within the therapeutic relationship. For some of the parents we work with this is the first time they have really experienced being thought about and related to in this way; it can be a powerful tool for change, opening up new possibilities for how they in turn can relate to their babies.

Our team of psychotherapists come from a range of backgrounds including Child Psychotherapy, Adult Psychotherapy and Clinical Psychology as well as including prior qualifications in Health Visiting, Nursing, Midwifery, Social Work and Teaching. All have undergone Infant Observation training, and are trained in the use of video through the (NICE approved) Video Interaction Guidance approach. This mix of backgrounds and approaches gives our work a strength and rigour that forces us to constantly challenge our own preconceptions and viewpoints.

We are part of a growing national movement of people and organisations who are bringing greater focus to the first years of life. Our Executive Director, Adrian Sell is a trustee of PIP-UK a new national charity seeking to support similar services to develop elsewhere. We have backing from Impetus – The Private Equity Foundation where we are one of twenty-five organisations they see as critical social game-changers supporting disadvantaged children to develop to their full potential. We are a member of the Centre for Social Justice Alliance where we are recognised for our effectiveness in tackling the root causes of poverty and disadvantage. We are supporters of the All Party Parliamentary Group for Conception to Age 2 – the first 1001 days

We all instinctively know that the first few years of our life are formative. There is also considerable neuroscientific evidence that has emerged to support this. OXPIP are now at the forefront of developing an evidence base for the positive impact that parent-infant psychotherapy can have. If you want to find out more then please look at our website, get in touch or leave a comment below.

OXPIP: The Oxford Parent Infant Project
Suite J
The Kidlington Centre
Kidlington
OX5 2DL
T: 01865 371080 or 01865 778034
info@oxpip.org.uk
www.oxpip.org.uk