The court opinion on the Illinois involuntary sterilization case

update: August 29, 2008

It’s turned out that Dr. Diekema himself wrote a paper on involuntary sterilization of mentally disabled persons in 2003. For details, visit the posts Dr. Diekema’s own conditions disapprove Ashley’s hysterectomy and Dr. Diekema’s official views on involuntary strilization: Why did he do everything he himself had said “Don’t” without doing things he himself had said “Do” in the Ashley case?

 

The court opinion on the denied request for involuntary sterilization of a 29-year-old mentally disabled woman referred to only as K.E.J. is now available on the Illinois Appellate Court site. It is a very informative reference in thinking of the Ashley case.

(Visit my post, Precedent-setting ruling in Illinois: sterilization bid denied and the linked news story there for details of the case.)

 

First, the court recognizes two distinct privacy rights at stake in involuntary sterilization of an adult ward: the right to bear children and the right of personal inviolability. Neither of these rights is absolute and parents may constitutionally control decisions for minors under certain circumstances. The guardian’s role may supersede the constitutional rights at issue as long as it is in the ward’s best interest. But involuntary sterilization invades the fundamental rights so gravely that “courts sill have a duty to ensure that parents and guardians of incompetents do not abuse their powers to the detriment of their charges.” “Courts can override the will of parents and guardians to assert fundamental rights of children and wards which cannot be preempted.” The opinion repeatedly mentions the responsibility and duty of the court to implement strong procedural and substantive safeguards.

 

What is remarkable about the opinion is that it repeatedly emphasizes the petitioner’s “heavy burden of proof”, and the need to provide with “clear and convincing evidences”.

 

Referring to some past rulings, it acknowledges three sets of standards in reviewing involuntary sterilization cases.

 

The safeguards to be implemented:

1) a guardian ad litem to represent and defend the ward’s interest.

2) a full judicial hearing at which both the petitioner and the guardian ad litem have the opportunity to present evidence and cross-examine witnesses.

3) a full medical and psychological evaluation of the ward.

 

A substituted judgment standard:

The first step is to try to find out what the incompetent person would want if he/she were competent. The party who wants sterilization may get the court order authorizing sterilization of the ward if the party can prove by clear and convincing evidence 1) the ward would have wished to be sterilized if he/she were competent and 2) he/she would not have objected to the chosen method of sterilization. On the other hand, the petition may be denied if the party opposing sterilization can prove by clear and convincing evidence 1) the ward would not have wished to be sterilized if he/she were competent or 2) the ward would not have consented to the chosen method of sterilization.

 

Note the petitioner’s burden is heavier. The party seeking sterilization has to prove both 1) and 2) to get the court authorization while the opposing party can prove either 1) or 2) to stop sterilization successfully. It is not necessary for either party to go into the best interest analyses here. The incompetent person’s proven will if he/she were competent should be respected first, regardless of his/her best interest.

A best interest analysis follows as the next step only if the ward’s will is not proven either way with clear and convincing evidence. Here on this step, the petition for sterilization should be granted if and only if the proponent of the petition can prove it is in the ward’s best interests by clear and convincing evidence, when compared to other, less intrusive alternatives currently available to the ward, as well as potential future alternatives that may become available due to scientific or medical advances.

 

The opinion also sets forth the six factors to be considered in discerning the ward’s best interest for the analysis.

 

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Reading this opinion, you’d just be amazed at the sheer audacity of the decision making process in Ashley’s case. Considering the importance to cautiously defend the fundamental rights of the incompetent, repeatedly referred to in the opinion , you’d find it even bizarre to imagine that someone who’d co-chair the IRB of the Seattle Children’s Hospital had been so blatant to ignore the ethical significance to defend Ashley’s fundamental rights.

 

In the Ashley case, none of the safeguard measures listed in the opinion was taken. There was no one who represented Ashley’s interests in any part of the decision making. There were no court hearings at all, much less any rebuttals. There’s no evidence that Ashley was medically or psychologically evaluated. (Read my post “The mystery of Ashley’s changing mental age.” about this.)

 

Dr. Diekama’s justification of the case is always based on his best interest analysis. Very vague analysis for that matter: the ethics committee weighed potential benefits for Ashley against possible harms and they decided the benefits would outweigh the possible harms. So there was no effort to try to find out what Ashley would have wanted if she were competent. Just imagine how it would have been if the case had been taken to the court. Her guardian ad litem would have tried to prove that she would not have wanted her womb taken out just to avoid menstrual discomfort no one knew if she would actually suffer from or not, or that she would have wanted less invasive methods as many critics have pointed out in the controversy. It is highly likely that the hysterectomy petition should have been denied at the end of this first procedure. Then her case would not have proceeded to a best interest discussion.

 

Another thing I’d like to point out about this opinion in terms of the Ashley case is that the Illinois court concretely and thoroughly reviewed the pros and cons of each and every contraceptive alternative that is less invasive than tubal legation. It suggests the use of IUD and if/when approved by FDA, subdermal implant for K. E. J. after all.

 

Do we see any traces of such concrete and thorough review of each and every possible alternative that is less invasive in the Ashley case? What was the special ethics committee all about, if it was not what they discussed?