Mr John D Dalton: Letter to Stuart Horner, BMA Medical Ethics Committee

Mr John D Dalton: Letter to Professor Stuart Horner, Chair, Medical Ethics Committee, British Medical Association. December 17, 1996.

December 17, 1996

Prof Stuart Horner
Chairman Medical Ethics Committee
British Medical Association
Tavistock Square
London
WC1H 9JR

Recorded Delivery

Dear Professor Horner,

GUIDANCE ON MALE CIRCUMCISION

Thank for forwarding a copy of the BMA'S revised guidance on male circumcision. It is disappointing that I was promised in August that this would be supplied to me when issued, but it was issued in September and only forwarded after a reminder.

The guidance has clearly taken on board representations received and has much to commend it. In particular your statement ...to circumcise for therapeutic reasons where medical research has shown other techniques to be at least as effective and less invasive would be unethical and inappropriate is clear, unequivocal and should virtually stop circumcision on the pretence of medical need.

The guidance does however have some errors and shortcomings and appears inconsistent with a statement in Medical Ethics Today: In the BMA's view, irreversible treatments of questionable necessity carried out on people who cannot give valid consent, must be subject to review by the courts... The guidance would also seem to be misleading your members as regards the legality of the practice and leaving them open to future litigation as the harm caused by circumcision is increasingly recognised.

My comments on the document are enclosed.

Yours sincerely

John D Dalton

COMMENTS ON BMA GUIDANCE ON CIRCUMCISION OF MALE INFANTS

General Comments

It is disappointing that the guidance provides only one reference to the medical literature and that was a non-peer reviewed letter from an American advocate of circumcision.

The document contains no guidance on record keeping.

The guidance contains no requirement for followup of a circumcised infant into adult life to ensure that any complications, including any sexual dysfunction, are identified and properly treated. A central registry of such complications would enable the safety, or otherwise, of circumcision to be properly assessed. It would also allow definitive assessment of claimed health benefits.

Introductory Text

You state The subject should not be confused with female `circumcision' which was outlawed by the 1985 Prohibition of Female Circumcision Act... The ethics of ablating healthy tissue from healthy unconsenting children are independent of gender. Any confusion arises from deeming ablation of genital tissue from children of one gender to be more acceptable than in the case of the other gender. Why should the foreskin of a boy be treated with any less respect than the clitoral hood of a girl?

Circumcision for medical purposes

The statement to circumcise for therapeutic reasons where medical research has shown other techniques to be at least as effective and less invasive would be unethical and inappropriate is a clear statement that conservative treatment should be favoured over circumcision. To help doctors keep up to date with developments in medical practice it would have been helpful to provide references to the many studies in the medical literature showing that circumcision is not necessary for foreskin problems-. This would carry more weight than the bland statement It is rarely necessary to circumcise an infant for medical reasons. Intervention is often unnecessary and in other cases conservative treatments are safe and effective.

You say Doctors must be allowed to make clinical judgements in individual cases, based on the above, as to the treatment to be used. The BMA would therefore have concerns at any prohibition of the use of techniques which, in certain circumstances are considered by the profession at large to be clinically appropriate. This appears to place doctors' clinical freedom above the patient's right to give or withhold consent to treatment on the basis of full information. I suggest rewording as follows: Where a doctor considers that circumcision is the form of treatment in the best interests of the patient, he must explain his reasons to the person with legal authority to consent. He must still explain the alternatives available and the risks and benefits of all the treatment options. His justification for the proposed treatment must be recorded in the patient's notes.

Circumcision for religious or cultural reasons

Legality

In support of your assertion that male circumcision is lawful under English common law, you cite the case of R v Brown, in which Lord Templeman states Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities. Note that this is, in legal terms, obiter. It is a statement of opinion by a judge and therefore not of binding authority.

Templeman defines as lawful Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful not withstanding that they involve actual bodily harm or may cause serious bodily harm. Note that infant circumcision does not have the consent of the injured person. Ablation of healthy tissue from any other part of a child's body in the absence of medical need would d likely constitute actual, or even grievous, bodily harm. It therefore seems that circumcision of male infants in an offence under the Offences Against the Person Act 1861, even though no prosecution has yet been brought to date.

Section 1(1) Children and Young Persons Act 1933, requires that person who wilfully assaults a child or causes or procures him to be assaulted...in a manner likely to cause him unnecessary suffering or injury to health shall commit an offence. Circumcision would appear to constitute an offence under this act since it damages health by removing specialised tissue.

The duty to balance potential benefit and harm

You say With all procedures, professionals have an ethical obligation to weigh the potential benefits and harms of the procedure and explain these in an appropriate manner to the patient or person consenting on the patient's behalf. Rather than suggest that Doctors unfamiliar with the practice and who receive a request for circumcision may find it helpful to seek advice about the physical risks of the procedure from doctors experienced in conducting circumcisions, it would have been helpful to enclose a list of the risks of the procedure to be explained to the he parents before they may be deemed to give appropriate consent. I attach a consent form adapted from one compiled by American paediatrician Robert Van Howe which presents a comprehensive list of the potential benefits and complications of circumcision and which should be included in the guidance. Given the non-therapeutic nature of the procedure, it is particularly important that the parents be made aware that there are intrinsic risks of circumcision and no proven benefits.

You say the BMA does not have a policy on the ethics of male circumcision for religious or cultural purposes... This is a cop out. Given the statement ...to circumcise for therapeutic reasons where medical research has shown other techniques to be at least as effective and less invasive would be unethical and inappropriate, it seems difficult to see how it can be ethical to circumcise a child who has no disease and therefore requires no treatment.

Potential health benefits

You say ... the health, as opposed to the social, benefits of circumcision are increasingly disputed and yet cite a non-peer reviewed letter by an American Advocate of circumcision without presenting any of the evidence which leads such claims to be disputed. This brings your association into disrepute.

The statement In some circumstances, a doctor may think it better to do the circumcision...if he or she feels the child is at risk of being circumcised in unhygienic or otherwise unsafe conditions denies that the circumcision is itself harmful.

Consent

A parent's right to give proxy consent to medical treatment on behalf of a child is lost if it is exercised against the best interests of the child. A circumcision carried out with parental consent might therefore be deemed unauthorised and therefore unlawful.

You cite a case raised with the BMA which concerned a GP who circumcised a baby unknown to him but whose parents were unmarried and estranged. What outcome arose from the mother's complaint?

Charging patients

I suspect that it would not in fact be the patient but his parents that would be charged in this case. This section could better advise that first, the taxpayer cannot be expected to pay for the costs of medically unnecessary mutilations or of treating the complications thereof, and, second, that doctors should not be allowed to benefit financially from such procedures.

Legal Issues

You state Poorly performed circumcisions hold legal implications for the doctor responsible. An action could be brought against a doctor responsible on the child's behalf if the circumcision was carried out negligently. It seems worthy of consideration that the rate of complications from circumcision is very high. Even if the 2% to 10% of circumcisions resulting in complications are not deemed to have done so due to negligence" they could be the subject of complaints. It would seem that the risk of doing circumcisions is so great that doctors should be advised against performing them altogether. I have been advised by a barrister that a man could issue legal proceedings against a doctor in respect of his successful circumcision if he could show that the parents had not been given enough information on the risks and harm for consent to be valid.

The guidance goes on to say Alternatively, the child could issue such proceedings in his own name on reaching the age of 18 and the normal time limit for starting legal proceedings would run from that birthday. It is not clear how such action could be brought if no records enable the patient to trace the circumciser. The guidance should state that doctors performing infant circumcisions must be in communication with the infant's GP and that full records must be kept on the patient's notes for at least 21 years from the date of the entry.

You claim ...because circumcision is not an unlawful procedure, action could not be taken against a doctor simply because a man was unhappy at having been circumcised at all. The undisputable existence of men who feel this way should however be respected by doctors. This is very good reason for unequivocal ethical guidance that doctors must not perform circumcisions in the absence of defensible medical indications.

Conscientious objection

You state ...doctors should not delay in explaining to the patient their own moral position but not seek to impose their own moral viewpoint on patients who do not share it. It is important, however, that a doctor takes action to protect a child where he feels that the child may be harmed by the actions of the parents or, worse still, a medical colleague.

John D. Dalton

[Enclosed: consent form]

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