A landmark criminal case in London in which two doctors were prosecuted for performing and abetting female genital mutilation (FGM) has resulted in the speedy acquittal of both. Dr Dharmasena was charged with re-infibulation—restoring FGM after the birth having previously performed defibulation to allow for the baby to be born. A second doctor was charged with abetting the procedure.
The woman (known as AB), aged 24 and expecting her first baby, originally had the Type 3 FGM procedure performed at 6-years old in her native Somalia. Type 3 refers to infibulation, which the World Health Organization (WHO, 2014) defines as ‘narrowing of the vaginal orifice with creation of a covering seal by cutting and appositioning the labia minora and/or the labia majora, with or without excision of the clitoris’.
A revision of the procedure was carried out on AB in 2011. During the pregnancy she apparently told a midwife, ‘It's fine, it's opened’, with reference to this second procedure (Laville, 2015). The midwife did not verify this. The relevant hospital's procedure on FGM (in line with National Institute for Health and Care Excellence guidance (NICE, 2014) was to identify it as early as possible during the pregnancy through sensitive enquiry, and then to plan intrapartum care, which in cases of extensive FGM may mean defibulation prior to the birth. However, this did not happen and AB arrived at the hospital in labour in November 2012. Dr Dharmasena, an obstetric registrar, cut through the scar tissue to facilitate the birth and prevent significant tearing. After the birth, he re-sutured the labia in what was described as a ‘figure of eight’ continuous stitch (Bloom, 2015). The midwife present at the birth observed this and noted privately to Dr Dharmasena that this was illegal as it constituted re-infibulation. Dr Dharmasena referred to the consultant obstetrician who said it would be ‘painful and humiliating’ to have the stitch removed, so it was left in situ.
Dr Dharmasena was arrested in 2013. At trial, the lawyer acting for the Crown Prosecution Service told the jury:
‘If you do know a little about FGM you may be expecting to hear that the offence took place in a back-street clinic by an unqualified and uncaring person on a young child. This trial is quite different but it nevertheless involves FGM … a woman's labia should not be sewn together at all unless medically necessary.’
The Female Genital Mutilation Act (2003) outlaws the practice in the UK, but also allows that a doctor or midwife might be required to make an incision of the scar tissue during labour or immediately after the birth for purposes connected with the labour or birth. The law also allows re-infibulation if it is deemed necessary for the patient's physical or mental health. As the prosecuting lawyer noted, the jury would have to decide if sewing the labia together afterwards was necessary for AB's health or was for purposes connected with the labour or birth. The jury took just 25 minutes to reach a unanimous verdict of acquittal for both defendants.
This case is obviously relevant for midwives: it could easily have fallen to a midwife to make a judgement call in what is almost an emergency situation. The case, however, is important too for the political fallout. Despite increased awareness of FGM and legislation outlawing it in the UK since 1985 (the current Act also makes it a criminal offence to take a girl outside the UK in order for the procedure to be performed), the case reported here is the only prosecution to date in the UK.
The prevalence of FGM in the UK is difficult to determine, being mainly due to migration. However, Macfarlane and Dorkenoo (2014) have recently estimated that over 100 000 women in the UK are affected. Bindel (2014) has also estimated that 63 000 girls under 14 in the UK are at risk. There have been claims that the case against Dr Dharmasena was brought because of political pressure to show that something was being done about FGM: it occurred just days before the Director of Public Prosecutions (DPP) was due to give evidence before the House of Commons Home Affairs Select Committee. Committee chairman Keith Vaz MP told a newspaper:
‘This prosecution appears to have been borne in haste, 72 hours before the DPP appeared before the committee … We shall seek an explanation from Alison Saunders as to what she thinks went wrong and what she is doing to ensure successful prosecutions and convictions in the future.’
Asked why there had not been more prosecutions, the DPP explained that:
‘We prosecute the cases that are referred to us … We know FGM is an incredibly difficult crime for female victims to come forward and make a complaint. Normally there are family and friends involved. The chances of a young girl coming into a police station to make a complaint about that are remote.’
The crux of this case is why the re-infibulation was performed. If stitches are required to halt bleeding and these have the effect of re-instating the original procedure, is that the same as re-instating the original procedure when no bleeding is present? Laville (2015) reports that the original case notes had Dr Dharmasena stating:
‘Had discussion with consultant post-delivery. In hindsight should not have closed stitches. Decision made not to reopen sutures.’
When an internal hospital investigation was carried out, Dr Dharmasena apparently stated:
‘I was not entirely sure how to repair the anterior midline incision. The cut edges were very small containing scar tissue and had minimal bleeding.’
However, the prosecution lawyers claim that he changed tack when he was arrested, raising for the first time the defence that the stitch was medically justified, writing:
‘A single suture was appropriate … in an FGM case where there is bleeding.’
This is a tricky judgment call for practitioners. Intercollegiate guidance (Royal College of Midwives et al, 2013) notes that early identification of FGM is crucial, and there are specialist midwives working in this field, which is to be welcomed. However, what is a midwife to do when—as in this case—the problem is only recognised when the woman presents in labour? The Royal College of Obstetricians and Gynaecologists, which is currently revising its ‘Green Top’ guideline on FGM (RCOG 2009), has ‘a low threshold for performing episiotomy’ in these cases, which means that repair will be required. It notes that the WHO recommends suturing of raw edges to prevent spontaneous re-infibulation.
Within the hierarchy of UK maternity units it is feasible for midwives to ‘refer the problem up’, but this doesn't take away the potential for having to deal with an acute situation in which the woman herself may even request that the original procedure be reinstated. Some will be surprised that it was a medical professional who was the first to be charged in the UK under this legislation. However, that fact should alert midwives to the need for greater awareness of who is most likely to be at risk, and how to manage the identification of FGM, irrespective of the stage of pregnancy.