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5 February 2015

UK: FGM trial highlights the dangers of ‘political’ prosecutions

The swift acquittal of Dr Dhanuson Dharmasena, the hospital doctor accused of performing Female Genital Mutilation (FGM) on a patient whose baby he had just delivered, is a welcome affirmation of doctors’ integrity and juries’ common sense. By Jennie Bristow.

The Crown Prosecution Service (CPS) has found itself humiliated, accused of reacting to political pressure to bring a prosecution for FGM at a time when senior government members have focused concern on this practice.

It took the jury fewer than 25 minutes to acquit Dr Dharmasena and his co-defendant, Hasan Mohamed, of the charges of performing FGM. Mr Mohomed’s lawyer said the verdict showed the failed case had been a ‘show trial’.

Meanwhile, Dr Katrina Erskine, consultant in obstetrics and gynaecology at the Homerton Hospital in London and an expert in working with women who have undergone FGM, has described this as a ‘political prosecution’. Dr Erskine says:

‘It is ludicrous to conflate anything a doctor or midwife may do at the time of delivery to a woman who has already suffered FGM with FGM itself, and it is insulting to women who have actually suffered FGM.’

So how did a doctor’s attempts to provide the best clinical care to a patient in labour end up in a two-year ordeal, including being suspended from practice by the General Medical Council (GMC) and ending up in the dock at Southwark Crown Court? And what will be the broader ramifications of this case?

A ‘political prosecution’

The Guardian reports that the prosecution of Dr Dharmasena was announced by the Director of Public Prosecutions Alison Saunders in March last year. It came after growing political and public pressure on police and prosecutors questioning the failure to bring a single prosecution for FGM in this country since 1985. The prosecution of Dr Dharmasena was announced three days before Saunders was due to appear before an inquiry set up by the home affairs select committee. 

Media reports of the trial have picked up on this peculiar coincidence of timings as an explanation for why, of all people, the CPS should seek to make an example of a young obstetrician. The Daily Mail reports that when committee chairman Keith Vaz expressed his surprise that this prosecution had suddenly occurred almost 30 years after FGM was outlawed, Miss Saunders replied: ‘The fact is we’ve had the evidence that’s been supplied to us that’s enabled us to bring a prosecution, it’s as simple as that.’

Not a case of FGM

Yet Dr Erskine and other obstetricians were ‘up in arms’ over the decision to prosecute, arguing – correctly – that this was not about a doctor performing FGM. And during the trial, several things became apparent. First, this was case of treatment, not mutilation. The 27-year-old woman (AB) had undergone FGM as a child in Somalia. She came to Britain in the 1990s, then married and underwent defibulation – a reversal of the FGM procedure.

This medical history was not considered when AB went into labour at the Whittington. Prior to labour, she had not been treated according to the specialised care pathway that should exist for women who have had FGM because of the particular risks that they face in childbirth.

As Lisa Avalos explains in the Guardian, ‘managing an infibulated woman during labour and delivery can be difficult because of the risk of tearing and heavy bleeding. It can be very difficult to distinguish between stitching that repairs damage from childbirth, and stitching that creates an infibulation-like obstruction of the vaginal opening. Physicians need to be trained to manage these complexities.’

Dr Dharmasena, who had not been trained in managing FGM, delivered AB in an emergency situation, putting a 1.5cm stitch to prevent the woman from bleeding. The prosecution claimed that this stitch amounted to ‘reinfibulation’ – whereas, as doctors have pointed out, it was a medically-necessary obstetric procedure.

Legal protection of doctors

Secondly, the Female Genital Mutilation Act 2003 is supposed to recognise and protect doctors’ need to perform such procedures, exempting a doctor from prosecution if a surgical procedure was carried out on a woman in labour or after childbirth and was medically necessary. Yet the trial judge rejected two attempts by the defence to dismiss the prosecution on these grounds.

This whole episode has made circumstances very difficult for obstetricians who treat women who have undergone FGM. The Royal College of Obstetricians and Gynaecologists (RCOG) has stated that ‘it is… important to distinguish between FGM/re-infibulation and medically-indicated surgical procedures to correct trauma such as the stitching of perineal or labial tears following labour.’ But the very fact that the case got as far as it did indicates that prosecutors are not always keen to make this distinction.

In welcoming the verdict, Katrina Erskine talked of the need to ‘support all the doctors and midwives who have been terrified by this case.’ This is crucially important. A doctor treating a woman in such circumstances has to decide between doing what he or she needs to do to stop the patient bleeding to death, and covering his or her back in case somebody should bring an accusation of FGM.

We all know, in our hearts, what we would want a doctor to do in these circumstances – which is, like Dr Dharmasena, to prioritise the clinical care of the patient. But it is unreasonable to expect dedicated doctors in busy labour wards to practise in conditions where they feel they might be accused of performing FGM.

Not about the woman

A third striking aspect of this case is the way that the prosecution was brought, not because of any complaint on the part of the woman (AB) , but because of broader pressures on the hospital and the CPS. AB did not make an official complaint against Dr Dharmasena: this came from a midwife who was present during surgery. Nor did AB give a statement to the police.

But as the Mail points out, ‘The alleged victim, who was herself taken to a police station where she was fingerprinted and had DNA samples taken, never supported the case.’ Furthermore, as Dr Dharmasena’s barrister Zoe Johnson reminded the court in her final address to the jury:

‘“Do you remember, when giving evidence, she said ‘he delivered my first baby’ with a smile on her face.”’

The minute details of AB’s labour, and her genitals, have been aired in public over the course of the trial – for a case she never brought, against a doctor about whom she had no complaints. This seems extraordinarily paternalistic and intrusive.

The implications of the case

This case will have had an impact on all doctors working in the sensitive fields of obstetrics and gynaecology. It has brought to light the extent to which high-profile political campaigns against the practice of Female Genital Mutilation can easily become warped by an attempt to find scapegoats and show results.

It should have been obvious all the way along that an obstetrician doing his best to deliver a baby and prevent a woman from suffering further morbidity cannot be equated with somebody performing an illegal practice upon a child. As Lisa Avalos argues in the Guardian:

‘Are there doctors out there who should be prosecuted for performing FGM? Perhaps there are. But a viable prosecution should involve a child who clearly cannot give informed consent, rather than an adult woman who may request a reinfibulation of her own volition. And the suspect should be someone who clearly intended to perform FGM on that child, rather than a physician doing his best to carry out post-childbirth repairs.’

The fact that this distinction was not obvious to the Crown Prosecution Service will have a lasting chilling effect upon clinicians, despite the fact that Dr Dharmasena was so rapidly and roundly acquitted. Because they will know how unpleasant the lengthy process of accusation, investigation, suspension and trial has been for this doctor, and how it could, very easily, be them. 

But what can any good doctor do in these circumstances? Refuse to treat women who have undergone FGM – or refuse to suture them when they are bleeding after labour? As Avalos says, delivering care to women who have undergone FGM ‘can be complex, and the last thing conscientious physicians need is a fear of prosecution if something goes wrong’.

On the positive side – we can be delighted that juries remain capable of making swift, humane, and rational judgements. And we can be inspired by the staunch defence that Dr Katrina Erskine has given to her colleagues all the way along. As she told the Guardian:

‘I think they (the CPS) were responding to a lot of public pressure. I find myself wondering how far I should go to say that FGM is the slicing off on a conscious young girl with no anaesthetic of her clitoris and labia…

‘This is a quibble about a couple of stitches and it is a complete distraction.’