Example Essays - Health Essays
Should it be part of the midwife's remit to routinely ask their clients if they are subject to domestic violence?
1) Abstract:
The following discussion will consider if it is right for midwives to ask if a women is subject to domestic violence, it will assume that the reason for this line of questioning is that if there is a real danger of domestic violence it would impose a duty for the midwife to report such incidences to the appropriate authorities. This duty will impose legal liabilities which may be too much for the state and judicial system to deal with. In addition this discussion will focus on the human rights issues that are involved in the role of the midwife and other players of the medical profession and social services in respect to domestic violence. This discussion will argue that the legal hindrances and English Judicial and governmental system will fail to provide such a duty; however the ethical considerations promotes such action.
Therefore, these ethical considerations will indicate that the failure to provide such a duty indicates that it is necessary to alter the system of rights and law to ensure that the right to be protected of both the battered mother and the unborn child is ensured. These actions should be taken by the midwife even if the mother shows resistance because of duress and fear of her life, because privacy rights were not to be used as a method to protect wife beaters. This discussion will consider two arguments in respect to the role and duty of the midwife with respect to domestic violence, then it will consider various human rights approaches to domestic violence, as well as focusing on feminist theory and the problem created by the public/private dichotomy in liberal democracies.
This discussion concludes with the argument that it is necessary for the rights system to be overhauled in order to ensure that midwives and other medical and social service officials report cases of suspected domestic violence, which is determined by a variety of methods including routinely questioning of their clients if they are victims of domestic violence.
2) Introduction:
2-1 Rationale:
The rationale behind this discussion is that the duties of midwives include reporting possible cases of domestic violence, which needs to be determined by a variety of methods including routinely asking their clients whether they are subject to domestic violence. In order to do so this discussion will explore a variety of avenues, primarily focusing on human rights and feminist thinking. It will also consider the legal problems associated with such a duty, but contrast these problems with the ethical duties and consideration of midwives.
2-2 Background - history of domestic violence
In the United States, domestic violence is one of the most serious threats to women's health, and the domestic violence community once again has the opportunity to influence systemic change that can greatly assist battered women - and even prevent domestic violence. There is a growing awareness that domestic violence is a criminal justice issue and a public health issue. For advocates, one of the most significant social change opportunities of the decade is to articulate the concerns of battered women within the health system changes that are taking place.
The history of domestic violence is based upon silence and the relegation to the private realm. This means that domestic violence which has been a reality throughout the ages has always been seen as normal, a prerogative of the husband. The feminist movement that gained power in the 1970s focused primarily on the public sector, but also discussed the public/private dichotomy of the liberal democratic society and the reluctance of the state to invade the private sector, i.e. the home, which left children and women subject to domestic violence. The dichotomy became compromised with the state's involvement with child protection; however this was justified because the child was not an adult and cannot protect themselves. It has not been until recently that domestic violence against women has become a concern; however it is enshrouded within silence and the routine discussion between midwives/social services and their client concerning domestic violence presupposes the duty of these officials to investigate and report possible cases of domestic violence in the aim to publicize domestic violence for the crime it is and follow up with appropriate charges.
2-3 Question, aims and objectives
The main question will be whether there is a duty for the midwife to investigate and report possible cases of domestic violence. If this is so then routine questioning of clients would be essential. The aim of this discussion is to illustrate that the ethical considerations are hindered by the legal problems of liabilities, as well as the public/private dichotomy that is present in liberal democratic systems. The objective this investigation is to present that it is necessary to change the attitudes at governmental, societal and legal levels to ensure that the midwife is protected in her duty to investigate and report suspected cases of domestic violence.
3) Methodology:
3-1 Inclusion criteria
This discussion will be from a theoretical level comparing and contrasting the legal avenues presented to the state on the question whether to impose such a duty, with the requirement to routinely ask questions pertaining to possible domestic violence with the client. This discussion has assumed that this routine questioning necessarily imposes such a duty therefore the discussion surrounds the legal and ethical consequences of such a duty.
3-2 Exclusion criteria
This discussion is from a legal theoretical perspective and has not dealt with quantitative data; rather it deals with a qualitative approach considering the human rights, ethical and legal questions that arises from the duty that routine question presupposes. It excludes the possibility that routine questioning does not necessarily presuppose a legal duty that is imposed by the state of investigating and reporting suspected cases of domestic violence. Also it does not include a quantitative and statistical approach to the question.
3-3 Search strategy for identifying studies
The search for studies and appropriate research material is done via identifying three types of discussion area, human rights, legal and ethical, which are appropriately linked to the problem of the state's duty to protect women from domestic violence. It considers the legal implications of imposing a duty to investigate and report considering parallel duties owed by the state, social services and medical professions. It also discusses the problem of competing human rights and the legal approaches, comparing and contrasting the lack of legal human rights to meet the criteria of human rights theory. Finally it considers the ethical consequences and therefore the necessity for there t be changes in the system of legal rights and therefore duties in respect to domestic violence.
3-4 Method of data analysis
The first section considers the problems and consequences for both parties in the inquiry about the possibility of domestic violence. Then it will consider some of the legal, ethical and social problems of such inquiries; whereby a duty is imposed by the state to investigate and report cases of domestic violence. This leads to considerations and consequences in the areas of human rights, the law and ethics will be the focus of the discussion.
3-5 Ethics and ethical considerations
The ethical considerations that are the focus of this discussion are whether the state and subsequently midwives and social services owe a duty to investigate and report domestic violence. Therefore it will illustrate the problem with current legal and social views of domestic violence, as well as the failure to protect the unborn child because they do not have human rights because there is not a legal entity until birth.
4) Evaluation of selected literature:
4-1 women's perception of midwife enquiring about domestic violence
Obstetrical health providers also have an important role in identifying battered women. Studies indicate that 10-32% of women seeking care from prenatal health care providers have a past history of domestic abuse.
Nudelman and Trias argue that women will open up and talk to health care providers as long as it is from a direct caring perspective. In fact the role of the midwife is very important because they do not hold the demanding and intimidating position of power that their doctor may hold. However, as a trained professional in the area of health care and especially the health and well-being of her unborn child, the midwife is a very important person of confidence for pregnant women who are subjected to domestic violence. Nudelman and Trias also stress the importance of midwives and other medical professionals in domestic abuse intervention, prevention and prosecution.
This is not possible without the woman's willingness to talk to the midwife and therefore this not only makes how the discussion is initiated is important, but also what the discussion contains, like options and avenues that the woman can take to get out of the situation of domestic violence; therefore each case and type of reporting should be unique, i.e. reporting every possible case of domestic violence to the police is appropriate. The belief that the woman would see such direct investigation as a breach of privacy is highly unlikely, in fact when a woman is pregnant and subject to domestic abuse creates the realization that not only is her health, well-being and possibility of life is at risk but also her child.
However, the method of reporting should be dealt with carefully, because if the woman expects that her experience of domestic violence will always be directly reported to the police will scare off her willingness to confide in the midwife. Therefore there needs to be a set of steps taken in reporting, possibly further counselling and education and only in extreme circumstances, i.e. threats to life and/or gross bodily harm, should the case reported to the police unless there is consent from the battered woman.
It is not the role of the health care system to invoke and foster criminal justice intervention. Calling the police is not always in the best interest of a battered woman.
4-2 midwife's perception of routine enquiry about domestic violence
PCTs should consider routine enquiry for domestic violence as a part of wider public health programme designed to reduce injury and promote mental well being. They may wish to consider developing an interagency approach to the issue building on the work of Local Crime and Disorder Reduction Partnerships.
This study made by the North Bristol National Health Trust revealed that the role of the midwife directly intervening in possible cases of domestic violence by discussing and questioning whether the woman is subject to domestic violence has resulted in positive feedback from the midwives, as long as proper training has been received. This study also revealed that women were receptive to this discussion and intervention into domestic violence; therefore resulting in a very positive perception of midwives to pilots into routine enquiry about domestic violence. This study also revealed that question without appropriate training lead to less enthusiasm from the midwives and the women being questioned.
This revealed that there is a very important role for education for preventing domestic violence; in short this means that just setting up a duty and structure for investigating, preventing and prosecuting domestic violence with the routine enquiry of pregnant women by their midwife is no good without the right training, approach and counselling. In fact the recommendations of this study promoted the use of midwives in this duty to prevent domestic violence was to ensure the education of women with options, which would increase the visibility of the wrong committed by domestic violence and subsequently reduce the domestic violence occurrences and increase the prosecutions of domestic violence.
The problem is what is to be done when there is a case of domestic violence, because this routine enquiry is ineffective without a method of reporting, prevention and prosecution of the batterers. This leads to the discussion that presupposes that with this enquiry there is a duty to investigate, report and prevent cases of domestic violence that have come to light with this enquiry; hence creating ethical and legal considerations that question the viability of imposing such a duty.
5) Discussion
Human Rights Theory & Domestic Violence:
Fundamental Human Rights:
Under Hohfeld's view it becomes clear that, traditionally, most freedoms were merely liberties; one did no wrong to exercise them, but there was no positive duty on any organ of the state to allow or facilitate them Nevertheless, some of our entitlements clearly had and have the quality of Hohfeldian claim-rights [akin to inherent rights] in that they are protected by a positive correlative duty However, even when a citizen holds a right, there were - under domestic law - no legal guarantees that the legislation providing the positive protection would not be repealed. When the Human Rights Act 1998 came fully into force many Hohfeldian liberties became rights in Hohfeldian terms since public authorities have been laid under a positive duty to respect them and will act unlawfully if they do not, unless the only possible reading of contrary primary legislation is that the right must be infringed The 1998 Act does not provide a set of immunities since it can be overridden by primary legislation [as these rights would stand under the ECHR or under US Constitution]. But the Act clearly represents a dramatic shift in rights protection in the UK, away from residual freedoms towards positive rights.
Therefore the HRA 1998 has provided a new vision of rights, which the UK has to deal with and only after almost four years of being in force, it cannot be expected that the hundreds of years of English Legal development has to change course.
Traditional rights in the UK are known as civil liberties, which follows he arguments of utilitarianism. Modern utilitarian theorists have extended the theory of Bentham, but have put it in more modern terms. Instead of maximising the pleasures and desires of the individual the government would be maximising the general welfare of individuals therefore minimising frustration of wants and preferences. Therefore what one can see is that the governing bodies must put the general welfare first, yet minimise the individual's needs - therefore causing a conflict of rights between what is in the name of the society and what the individual wants.
The problems with this theory is it is socially constructed, there is no autonomy of being and no argument for universal rights that transcend all cultures and religions, therefore falling short of what is needed for an all-encompassing human rights theory, as the general welfare can be different for differing cultures. Hart's theory is based within the positive and negative liberties; it follows the traditional civil liberties method whereby the rights are either given directly or impliedly by the state. This is based upon a traditional positive frame, but there is an understanding that the duties between the right holder and the duty bearer are not within the traditional form. The traditional view was that the rights holder should be regarded as a beneficiary of the legal obligation to be performed by the duty bearer: a recipient in other words, of the benefit provided by such performance.
Inherent human rights are based on core rights theorists. The basis of the core rights theorists is the work of Immanuel Kant. Kant's argument, which is more commonly known as Kant's ethic, tries to get away from the needs, desires and wants, which are the basis of the rights from the state of nature. Instead it is an a priori ethic, which transcends all needs, desires, wants, purposes and end. In other words it is not part of human construction. How does Kant argue that this is an all-encompassing ethic outside of societal conventions, without the aid of a divine being? Kant argues that it is the individual's ability to reason and autonomous will that is the basis of his a priori argument. Shestack describes the basis of Kant's argument as; 'rights then flow from the autonomy of the individual in choosing his and her ends, consistent with a similar freedom for all... In short, Kant's imperative is that the central focus of morality is 'personhood', namely the capacity to take responsibility as a free and rational agent for one's system of ends'.
In modern theories there are different strands of this Kantian argument; however they all base round a transcendental need for the autonomous nature of the individual to be free in society. There are arguments from necessity, i.e. the minimum rights and freedoms to ensure the autonomous being; yet again it seems to be just a new veneer of the Kantian ethic. This ethic was one of the most influential arguments for universal human rights, in response to Nazism, eugenics and ethnic cleansing, which can be illustrated in the Universal Declaration of Human Rights with words such as inherent, inalienable and equality applied to rights and the basis of these rights are the foundation of freedom, justice and peace in world.
The traditional civil liberty view has been eclipsed with the HRA 1998 because the ECHR contains inherent rights and not mere civil liberties.
Feminist Thought - Equality, Private Life/ Public Life Dichotomy:
Inequality is a reality for women at all levels of life, in the home, in the labor market and as a citizen of the state. The laws of liberal democratic states have set up value neutral laws that are based in an androgynous view of the sexes; however this is not the reality of situation, because the state, family and labor market is based on systemic discrimination of women, i.e. men have created the system and have inherently based the position of women, at best as second class citizens and at worst as the property of men. This has made the theory of re-distribution key to creating equality economically, socially and politically for women. Therefore this discussion will consider the theories of re-distribution and then apply them to women's social and political situations, which then should cause changes in women's social image and therefore create a situation of equality in the family.
The core thinking of Nozick is the entitlement theory whereby there are three principles which are; the transfer principle; the acquisition principle; and the rectification principle. It must be stressed that Nozick's liberalism is entrenched in the theory of natural and core rights as set out originally be Locke. Therefore all men are created equally as derived from the state of nature but in order to create a civil society men contracted for a just system of governance with essential human rights. This is the traditional theory of the relationship between the market and the state; however this value-neutral approach fails to create equality for women. The problem of inherent inequality is because such a theory based on the free market would view re-distributive actions by the government as unjust. The main problem for this thinking is the original premise whereby Nozick assumes all people began as equals, because the present Western society has been created primarily by white men.
Inequalities within the labour market and domestic home life have been the focus for theorists that emphasize the need for a level playing field. However this focus on inequality arguably may be deteriorating due to the introduction of legislation from the early seventies to the nineties. These equal rights are based on treating men and women the same and do not combat the inequities that are inherent in the system, which are illustrated by the fact that sexual harassment was not deemed to be sexual harassment until 1989 with the case of Janzen v Platy Enterprises. Therefore it is necessary for this systemic discrimination to be tackled by re-distributive justice, which feminists such as Mackinnon purport. Also the home life or private life has been greatly ignored it is not until recent years that domestic violence has become socially unacceptable, even so authorities still turn a blind eye.
Inequality is the key term that needs to be discussed when contemplating the validity of re-distributing resources. Re-distribution can be done by either handing out state benefits of money, housing or material items or by providing more opportunities to those that are in disadvantaged positions. Nozick and Rawls are examples of two extremes in liberalist thought; Nozick represents the true laissez-faire liberals whereby redistribution is against equal opportunities and the only way to present a just government is to follow free-market principles. Rawls, on the other hand, argues that re-distribution can be fair as long as it is just, but would not suggest quota systems or the socialist democratic state of the Scandinavian nations. This section will end by comparing the two theorists.
There are other theorists such as Kymlicka who argue that re-distribution is the only manner of ensuring that inherent inequalities are eradicated in the political system. Such lines of arguments come from feminist thinkers, such as MacKinnon. At the moment because the state and economic situation is only playing lip service to equality this re-enforces the inequality in the family where the wife is not only a career women, but also a cleaner, caretaker, nanny and a personal servant to her husband, which can beaten if any of these duties have not been fulfilled at his whim because she is the property of her husband. In order for this attitude in society to change feminist theory needs to be incorporated in the state and the economy further, with re-distributive justice; the reason why feminist theorists have only been partially successful is that either the theory has no accountable basis or it is falling prey to mainstream academic methods. In order to do this feminist theory must incorporate an accountable feminist methodology, in order for feminist theory to be held as a valid theory of the state and economics with valid aims to create equality through realistic systemic change. By bringing true systemic change it will cause a change in social views and policy, which will bring true equality to the family home.
The Problem of Equality, Domestic Violence and the Involvement of the State:
Privacy Rights:
The English Judiciary has traditionally protected privacy over that of the duty for arms of the state to protect the rights of persons in the domestic home, except for children. In recent years, with the rise of feminist theory it has become recognized that there needs to be protections of the person for battered women. In the same breath the protection of battered women lies within the ambit of education and exposure of the wrongs committed by domestic violence. Therefore the media plays a crucial role; however t main area of contention that traditional English jurists have with the media is their invasion of the individual's privacy. This can be illustrated by the first study of the original Press Council whereby Lord MacGregor reported that there were inexcusable intrusions into privacy.
This attitude has not changed in later years with notable cases and investigations; such as the role of the Paparazzi in the death of Princess Diana; the photographing of Sir Paul McCartney in a French cathedral after the death of his wife; and the unauthorized Paparazzi photographs of Michael Douglas' and Catherine Zeta Jones' wedding. In each of these cases the media has been condemned by either the Public; the Press Complaints Commission; [and] or the English Judiciary.
However there is no specific law of privacy rather a collection of quasi-propriety actions [and] breach of confidence [has] been built on the notion that confidential information is akin to property. This relationship between property and privacy explains how the traditional English judicial position is to protect privacy, because traditional liberalist jurisprudential thought see property ownership as one of the ultimate cornerstones of a liberalist democracy. Therefore when there are breaches of privacy, this in turns into an argument that mixes property law; intellectual property law; and the Data Protection Act 1998. Recently in addition to these traditional methods of protecting privacy the HRA allows for the right of a private life.
However as of yet this has not materialized into a specific statute guaranteeing this right; instead the English Judiciary has claimed that the current legal method satisfies the HRA. In truth the English Judiciary'sapproach to privacy is too much in its favour and does not afford the same rights to the freedom of speech; in respect to the media.
As previously mentioned the English Judiciary has stacked the cards against the media and the extent to which it can report. The European Court of Human Rights (ECtHR) has a different method in approaching the freedoms that surround the press. This court has recognized that every right is inherent and that the state cannot derogate from it unless it is; prescribed by the law; proportional; and necessary in a democratic society, in which this includes for the protection of an individual's privacy. However the starting point is that the right should never be sacrificed for reasons other than those that are stipulated. The possible problem with the proportionality of the UK court is that it holds the right to privacy as legally more important to the freedoms of the press.
There are a series of important cases that the ECtHR have decided, whereby it has been stressed that freedom of expression and the press is necessary in a democratic society; that a national norm is not a good enough reason to derogate from this right; that the margin of appreciation is to interpreted narrowly; and the role of the press as a watchdog is extremely important. Therefore the conflicting view of the ECHR has been slowly instituted into UK law; with much resistance from the judiciary, however with the parliamentary move toward incorporating the ECHR this has not left a lot of options for the UK court. This has come to a head with the Reynolds v Times Newspaper Ltd whereby the role of the press has been recognized as the public watchdog. As the public watchdog it should expose the true facts and criminals behind domestic violence and enforce the state's duty to become involved through reporting and investigating incidents of domestic violence.
Therefore the role of the midwife would be expanded as a person representing the medical establishment with the reporting of an incident of domestic violence; however as the cases of privacy and the media illustrates this is highly opposed by the English Judiciary and government.
Protection of Life and the Right to a Life Free from Degrading Treatment:
There has been a lot of discussion on the extent there is a positive duty to protect life. In the case of Osman v UK the duty is restated as:
Article 2 may imply, inter alia, positive obligation for State to take preventive operational measures to protect individual whose life at risk from criminal acts of another individual - on other hand, scope of such obligation contested - for Court, it must be established to its satisfaction that authorities knew or ought to have known at time of existence of real and immediate risk to life of individual and failed to take measures which, judged reasonably, might have been expected to avoid said risk - sufficient in this regard for applicant alleging breach of positive obligation to show that authorities did not do all that could reasonably be expected of them in circumstances to avoid risk.
Therefore it depends on the circumstances of the case and whether there is enough knowledge that there is a risk to an individual's life for the state to positively act to protect the individual. The state cannot expect to have fulfilled its duty by employing a defence force or police force as the this case concluded, i.e. an immunity from the police being negligent in the course of their duties doe equate to an infringement of Article 2 and Article 6(1). This means that the state has to ensure that the steps are taken by their designated protection forces.
The state has to remember that it also has a duty to protect not only its citizens but non-citizens that are in fear of their life if they are deported, creating a difficult problem with terrorism and deporting suspected terrorists if they are in the UK on the premise that they may be tortured, even killed if they return to their state of origin. Therefore does this extend to midwives protecting the women from domestic violence which may result in death, also if there is a duty for the state to protect non-citizens can this be extended to the unborn child?
The complexities in the duty of reporting possible domestic violence opens up many problems and doors in respect to human rights, as if there is a duty to protect the unborn child does this cause problems in respect to protecting the fundamental rights of future generations. This is a highly complex problem for the state because it will cause problems with the right of abortion, as well as the added problem that the unborn child is not a legal entity therefore has no legal rights in the English system. Also this is a very shaky ground for midwife's to get positively involved because there is no positive proof that the woman or her unborn child is in risk of death, therefore according to Osman v UK there is no legal requirement to report the possibility of domestic violence.
This seems to be ethically wrong, because if a person were attacked on the street the state owes a duty to report and investigate; therefore how different can it be for the duty owed if a person is being attacked within the home. The problem lies with traditional laissez faire politics and the state's reluctance to breach the boundaries of private life. Although the right to privacy is a fundamental right it needs to be balanced appropriately with the other fundamental rights, i.e. the right to freedom from torture and degrading treatment.
The most significant human right that may be applicable to providing social assistance and benefits is Article Three; whereby on may conclude that by not providing the basic necessities to persons who are not able to work, i.e. prohibited by the state, would be akin to degrading and inhuman treatment. Article 3 has three different aspects that are; prohibition of torture; inhuman punishment/treatment; and degrading punishment/treatment. Ireland v UK set forth the basis of the article, where 'a minimum level of severity' must be attained before there is a breach of Article three, which depends upon; the duration of the treatment; its physical and mental effects; and in some cases, the sex, the age and the state of health of the victim'.
Also there has been a self-evolution of the case law where the ECtHR is paying particular care with the weak and vulnerable, which Starmer indicates is part of the Convention's role as a living instrument, therefore nullifying or putting a caution on previous case law. Article 3 cases are examined on the facts and there is no burden on either party, it needs to be shown that there is a possible chance of breach beyond a reasonable doubt; however this can be 'satisfied by the co-existence of sufficiently strong clear and concordant inferences or similar unrebutted presumptions of fact'.
The main standard in relation to lack of social assistance and benefits is degrading treatment/punishment: Starmer describes this as 'degrading if it arouses in the victim a feeling of fear, inferiority capable of humiliating and debasing the victim and possibly breaking his/her physical or moral resistance. In order for punishment to be degrading and in breach of Article 3, the humiliation or debasement involved must attain a particular level of severity and must in any event be other than that usual element of humiliation inherent in any punishment. This area is where cases are decided upon their facts and can include; racial harassment, corporal punishment; gross remarks that are defaming; and police surveillance that borders on the extreme and unrelenting; not allowing a person to change their clothes which have been dirtied by their own defecation; and insufficient medical treatment for a serious illness.
Also in these cases the vulnerability of the victim is essential, because if they are weaker in any manner this reduces the minimum standard to that class of persons. The standard approach to Article 3 gives minimum standards, which include a various number of situations, e.g., corporal punishment and insufficient medical treatment, but there is no necessity to provide social assistance and benefits to individuals; and even if there was a specific human right to provide social assistance and benefits to citizens, the same provisions do not apply to non-citizens, which is illustrated by the way which asylum seekers are given safe-haven. The non-citizen cases seem to put a high threshold on ill-treatment, it is not necessarily through the definition but the use of the words that there must be a significant risk.
Whereas the ECtHR has a more lenient approach on what constitutes ill-treatment on citizens, such as corporal punishment in schools and medical treatment. In summary this leaves the resonance that even though Article 3 extends to non-citizens it does not extend to the same extent that it does for citizens and therefore leaves huge questions whether this right can extend to unborn children?
The Problem of Domestic Violence & Equality:
Male dominated theory and academia looks at the empirical data of societies, governance and law and then relates that to theory, i.e., it looks at the interests in play in the major social, economic and political arenas and tries to create a theory of equilibrium. Shestack says that this approach is based upon supply and demand. A major deficiency of this approach is that it does not give any moral priority to rights or identify any rights that are inherent when the prevailing social arenas are not displaying them as major interests.
Also empirical data is not enough to answer the question why there should be human rights principles or how to deal with interactions between politicians, never mind asking just how they may work in a legal system. This approach is important for implementing sufficient political agendas on a global, regional and domestic level. However it provides no foundation for core ideas of justice, such as human rights or equality and discrimination. Arguably the main deficiency in this approach that relates to the problem with justifying and ensuring inherent and inalienable rights are kept to the standard set by founding principles.
MacKinnon approaches equality from a standpoint that the laws that evoke equality between men and women are not enough, because they rely on the sameness principle, an objective approach, between men and women and tries to compensate women by saying that men and women should be treated the same. This is not enough because of the physical and biological differences which causes a problem, because the social construction of these differences that have caused an inherent inequality between men and women in the current social, cultural, political and legal system.
Therefore Mackinnon indicates the current theoretical approaches to equality and rights are not sufficient enough because they fail to recognize that the legal and judicial system is entrenched in a male domination. Hence trying to make women the same as men, rather than recognizing that men and women are different but should have basic rights that protect this difference. MacKinnon also supports leveling the playing field by giving women advantages over men in order to counter the male dominated system. In short MacKinnon argues that the creating of laws to make women equal to men will not compete with the inherent inequalities in Western legal and political systems in fact these laws will entrench the inequalities further and support the power that men have in law.
On the other hand, the State has imposed duties of care on reporting possible domestic care of children and women, but the ability to act in the case of women is limited by the fact that they are adults and may refuse to press charges. Yet, if the problem is affecting children of the home then social welfare may remove the children. The problem with pregnant women and domestic violence is there are two individuals at risk, i.e. the mother and the unborn child. In the case of pregnant women who have left their homes due to domestic violence the state has imposed a duty of care on Local Authorities to provide shelter to the women. The definition of homelessness has also been expanded in reference to women, i.e. to include those who are experiencing domestic violence from those living within their home; whereby domestic violence is threats of violence as well as actual violence. The definition of priority need include those who are pregnant or in an emergency situation and threatened with violence.
There have been many problems with intentional homelessness because the LA because in the case of Knight v Vale Royal BC where a woman was regarded as homeless and housed in a women's shelter, on the basis of domestic violence, but on finding out she was pregnant temporarily left to reside in her parents home to give birth and applied for accommodation under the homelessness provision. The LA advised now intentionally homeless even though in same position, i.e. her parents were there in the previous situation. In addition it was held reasonable that she should reside in the property she held as a joint tenant for the remaining 6 months. After this 6 month period the landlord served notice; however in this scenario it was considered that there was still a causal link to the original homelessness and although a short hold tenancy is classed as assured accommodation but this does not always break the chain of causation to the original case.
Therefore illustrating the strict duty of care owed to pregnant women on the basis of domestic violence. The midwife has a hard role to play when it comes to domestic violence because she must balance the wants of the mother with the needs of the unborn child, therefore should there be a duty of care for the midwife to report possible cases of domestic violence. Also should this be the case when the woman is in apparent opposition to this action.
6) Conclusion:
Human Rights, Domestic Violence & the Duties of the Midwife:
Legal Considerations:
The legal considerations of the midwife in reporting domestic violence lies in the fact that there may be a breach of privacy and possible problems in respect to liability under the tort of negligence if the midwife's actions results in the harm of the woman, possibly even death by reporting possible domestic violence. Along the same line of thinking if a duty were created for midwives to report possible cases of domestic violence then along with it is the possible liability in negligence when an omission of reporting occurs. The government cannot give blanket immunity to midwives as under the case of is Osman which took the law of negligence to the European Court of Human Rights (ECtHR) in respect to duty of care and the immunity of police officers from liability under Hill.
The ECtHR found that the immunity was in violation of Article 6(1), the right to a fair hearing; therefore each situation needs to be given a fair hearing and proximity and foreseeability need to be properly considered; therefore in the case of Barrett v London Borough of Enfieldit was concluded that such striking-out practices can no longer be taken, rather fairness and justice need to be decided on the elements of each case. This will create many problems for midwives and the state and the liabilities associated may be too high for the state to impose such a duty:
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or do something which a reasonable prudent man would not do.
In the case of the reasonable person it was found that any action that has been taken, would take reasonable care to prevent injuries to persons that could be foreseeable claimants, i.e. it does not matter if the action has never occurred before the possibility of such an action requires that the reasonable person take reasonable care. If a person has not taken reasonable care then they would be in breach of their duty to any foreseeable claimant in any case where there is more than a far-fetched possibility of injury.
Ethical Considerations:
There is no duty of care under English law to be a Good Samaritan; therefore in a potential situation of domestic violence there is no requirement to act, if one assumes that the actions of the midwife is akin to protect a women subject to domestic violence to those of rescuer in a potential emergency situation. Only in special circumstances that an omission is regarded as negligence, e.g. a doctor and patient, in respect to preventing reasonable environmental damage and emergency personnel in cases of emergency. In respect to domestic violence and reporting the possibility there is no duty of care for the midwife therefore she is assumed to be a bystander. Therefore if an individual who is a mere bystander comes to the rescue of another then this person is assuming responsibility under English law.
In attempting a rescue the individual is therefore responsible for any acts of negligence that result from their actions, i.e. a duty of care is present between the rescuer and rescued. For there to be a successful claim there needs to be a reliance on the aspects of reasonable care, remoteness of damage and causation. It also has to be stressed even if the individual is harmed that any negligent acts that cause further harm make the rescuer liable, because the rescuer has to take the person as they find them. Therefore this creates a situation whereby individuals are reluctant to help others in emergency situations. This creates a very inhospitable and uncaring society, which needs to be contrasted with other jurisdictions, such as under the French Penal Code; whereby passer-bys are under a duty of care to provide assistance in an emergency situation or they will be subject to criminal action.
This has been recognized in the writings of Prosser and Keeton who view the reluctance to require a duty to rescue and protect rescuers from negligence suits as revolting to any moral sense where the remedy to in such cases is left to the higher law and the voice of conscience, which in a wicked world would seem to be singularly ineffective either to prevent harm or compensate the victim. Therefore there are academics that propose that a duty of care to impose rescue is necessary; whereby negligent injury can only occur in extreme cases of negligence - as long as a rescue attempt has occurred, as Bender argues the no duty rule is a consequence of a legal system devoid of care and responsiveness to the safety of others. However others argue that a duty to rescue should only imposed in cases where individuals have no fear of injury or prejudice, i.e. if the person is subject to harm or harm in respect to liability there can be no imposed duty.
Therefore there should be a special limitation on duty if a person is acting in a case of rescue; otherwise we have an uncaring society where people turn their back on injury, crime and individual's in need. However there cannot be blanket immunity because this would be in contravention of the Osman Case; however balancing the law of negligence with the acts of a Good Samaritan will create a more cohesive society, as well as a politically better attitude to preventing disasters and crime.
Yet Weinrib is right with his analysis if an individual will be subject to a negligence suit in rescuing a person, why should they be force to help? This is a very important question to consider and leads to the question for the need for law reform in the area of the tort of negligence and potential rescuers, which provides some sort of defence against reasonable actions in the case of the rescue situation, i.e. as long as reasonable care in the specific situation is taken then the duty is discharged.
Therefore it is necessary that a duty of care is imposed in order ensure that cases of domestic violence are not ignored and enshrouded in silence, i.e. just because a woman does not report it to the police does not mean that action is not necessary, it may be the case that the women is under duress, i.e. in fear of life or injury if she asks for help. Also there are the rights of the unborn child that need to be considered. Just because there are no legal rights that afford protection does not mean that the future life of the child needs to be considered and the child's possible death in the event of a beating of the pregnant mother.
This indicates there needs to be in certain circumstances where the unborn child needs to be protected, i.e. in cases of domestic violence where the mother is reluctant to act and the mother and child are under the threat to life or the quality of life. Therefore it is necessary for there to be changes in the system of rights and hence resulting in the duty for the midwife to report and investigate domestic violence through various methods including routinely questioning clients about domestic violence.
Procedural v Substantive Rights:
Sax views the necessity for the individual to have substantive rights to protecting the individual, rather than procedural rights which can be overruled and changed by the lawmakers; whereas substantive rights are inherent and fundamental rights that play a structural and necessary role in the legal system - one such substantive right is the right to life:
The elaborate structure of administration middleman we have interposed between the citizen and the interest in environmental quality has had another pernicious effect. It has dulled our sensitivity to the claim that citizens, as members of the public, have rights Thus far neither our courts nor our legislatures have significantly faced up to the implications of public rights. They continue to be fixated on the administrative process as the mechanism for identifying an enforcing the public interest. The public remains an outsider, to be tolerated as a recipient of notices and participant at formal hearings, but not as a central playerThe public itself is thought to possess no expertise about the public interest [In the end], as at the beginning, a decision reflecting the agency's response to its political necessities - its insider perspective about the public interest.
Hence Sax shows that to have empty rights means nothing, because the individual cannot act on them; instead the lawmakers and politicians decide what is in best interests of the individual. Therefore the only way to ensure effective human rights is through substantive rights and not through empty procedural rights, this is because procedural rights equate to a rightless regime. Therefore it could be possible that the only way to ensure a system of human importance is to build upon the notion of individual rights, i.e. human rights to ensure there are substantive rights.
This is the notion that has not only been suggested by Sax, but also Swaigen and Woods but they focus on the fact that the individual's competing property rights (substantial rights) will always outweigh the procedural human right, because the decision-maker cannot make a ruling in favor of a procedural right over a substantial right, i.e., the agencies' decision-making powers are, in fact, restricted by the property rights of developers that cannot be balanced against any competing right.
In much the same way the good of the society will outweigh the individual's basic inherent human rights. Swaigen and Woods go on to argue in order to ensure the sufficient protection of the individual's rights, this individual must be the holder of a substantial right, where this right does not have to be absolute or be akin to an immunity; this right needs to have at least the equal power of property rights, because are the most upheld an protected rights in the modern international legal system, in order to create a legal situation where the judiciary must balance conflicts of the equal status. However if the status of immunity is not held it means that the government can derogate against them in respect to protecting the good of the society. In the words of Swaigen and Woods:
To be substantive, it need not be absolute. However, it must have the same prima facie weight as a property right. This would give it substantial clout both against actions of the State and against private property rights. If this essential quality is not recognized rights will not be substantive in the same sense as property rights.
Therefore Swaigen and Woods poses the necessity for a substantial rights in much the same way as Sax, which will put this right in similar strength to property rights in order for a more balanced view of human rights. However in truth human rights should be viewed as stronger that mere property rights because they are inherent and transcend the next difficulty is to introduce a method for providing a substantial right to environmental quality; Swaigen and Woods, just like Dworkin and Sax, champion the delivery of these rights to be held by the individual.
In their theories it is only conceivably possible for substantial rights to be inherent to a person; whereas theorists such as Stone argue for non-human rights. It has been a long standing conception that fundamental and substantive rights within the law are held by individuals; consequentially the individual is the key unit of the legal system. The following subsection will discuss non-human rights, where Stone dismisses the individual person as the key unit and extends rights to include the natural world.
Swaigen and Woods, on the other hand, purport that substantial rights should be within the hands of the individual. The key factor of both of these examples of substantive rights is that they would include future generations; hence imposing a duty for midwives to investigate and report possible incidences of domestic violence because in the case of pregnant woman there is the added factor of the health and well-being of the unborn child. Therefore by changing how rights are applied means that the legal and social system can meet up to the ethical and theoretical considerations.
This means that the legal problems that are created with respect to privacy and legal liabilities when a midwife questions, investigates and reports possible cases of domestic violence are covered with respect to the legal liabilities that are created in respect to protecting the quality of life or even life of the mother and the unborn child.
Summary:
This discussion has focused on the liabilities created by imposing the duty of questioning, investigating and reporting domestic violence on midwives. The problem is not with the duty but the current legal system that protects privacy over the life and quality of life for both the mother and unborn child. The ethical considerations point toward the necessary reporting of domestic violence.
7) Methodology Matrix:
Legal | Human Rights | Ethical | Equality | Economic | Education | |
Primary (Data Collection, e.g. Questionnaires) | None | None | None | None | None | None |
Secondary (Case Analysis/ Use of Data Collected) | Case Analysis | Case Analysis | None | None | Case Analysis/ Use of Data Collected | Cases Analysis/ |
Tertiary (Academic Sources) | Academic | Academic Sources | Academic Sources | Academic Sources | Academic Sources | Academic Sources |
8) Theme Matrix:
Legal | Human Rights | Ethical | Equality | Other | |
Midwife | Liability in Negligence v's Invasion of Privacy | Privacy v's | Protection of Unborn Child | Pursuance of Equality in Home and Social Structure (Private Public Dichotomy) | Education valuable to dealing with clients |
Client | Possible Future Duty to Unborn Child | Protection of Life/Quality of Life v's Privacy Rights | Protection of Unborn Child | Private/Public Dichotomy | Education/ Counseling valuable to understand options |
Government | Liability in Negligence v's Privacy | Privacy v's protection of Life/Quality of Life | Protection of Unborn Child | Private/Public | Economic Financing to Midwives/ Mothers subject to Domestic Violence/ Social Assistance |
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