The strange case of FGM and the CPS

You will have seen the reports of the case brought against Dr Dhanuson Dharmasena for alleged female genital mutilation (FGM). The accusation was that, in suturing the perineum post delivery in a patient who had previously undergone FGM in Somalia as a child, Dr Dharmasena had restored the previous status quo, thus effectively performing FGM himself. The employing hospital had found that he had no case to answer, but someone reported him to the Crown Prosecution Service (CPS) and the General Medical Council (GMC), and he was suspended from practice almost a year ago.

The High Court jury took less than half an hour to find Dr Dharmasena not guilty, and we can see why they found it so easy to come to that decision if we look at the following points made  by the Royal College of Obstetricians and Gynaecologists (with some explanatory additions by me):

  • Dr Dharmasena did not perform deinfibulation (repair the results of previous FGM) or reinfibulation (re-perform FGM) on his patient, known as AB.
  • In fact, AB had already been deinfibulated at Kingston Hospital before the pregnancy.
  • As a result of her repair at Kingston, there were no difficulties with vaginal examination in labour.
  • The urethra was obscured by a band of scar tissue which Dr Dharmasena incised in order to insert a catheter as there were signs that the baby was in distress
  • After delivery, Dr Dharmasena repaired the bleeding edge of the scar tissue with a single figure of eight suture. The vagina was not closed by the single stitch.
  • AB had a further baby within the year without need for further deinfibulation (in other words, Dr Dharmasena’s repair had not produced any obstruction, confirming the assertion that it did not represent a re-establishment of the patient’s previous FGM).

So, while there may be some argument about the technical details of the repair Dr Dharmasena performed, this would, at most, be a case for some re-education by his consultant, which is what the hospital recommended, and which subsequently took place.

FGM has been illegal for a number of years, but shamefully,  no cases had previously been brought against those performing this mutilation. So why on earth would Alison Saunders, the Director of Public Prosecutions, choose to break her duck with this very atypical case, one which would seem to be doomed to failure? There have been suggestions that the fact that she went public with the decision to prosecute just three days before she was due to be interrogated by the Home Affairs Select Committee over her previous abject failure to act might be of some relevance in determining her motivation. While that may be an unworthy suggestion, how else else to explain the failure to go after one of the many back-street practitioners who butcher women in insanitary premises, rather than an obstetric registrar who was simply doing his best to stop the bleeding after a difficult delivery?

I don’t pretend to understand the reasoning, if any, of the CPS in this case, but it would be good to think that Ms Saunders will face her own disciplinary inquiry following such a senseless decision. I won’t be holding my breath, though – when interviewed about the verdict on the Today programme, she seemed to imply that Dr Dharmasena had received the benefit of the doubt due to the fact that the criminal court requires a high level of proof (beyond reasonable doubt) before convicting. But presumably she knew of this requirement before she brought the case?

And of course, it isn’t all over for Dr Dharmasena. He still faces the GMC disciplinary hearing. Now you might think that they would simply abandon the case in the light of the High Court finding? Not a bit of it. Experience tells us that they will probably bumble on in their inefficient way, taking months to actually convene a hearing, then as long again to produce a verdict. And, worryingly in view of Alison Saunders’s comments on Today, the level of proof required by the GMC before they take away a doctors self-respect, reputation and career is the lesser one of  ‘on the balance of probabilities’. Derek Keilloh’s case linked to earlier in this paragraph tells us that their disciplinary panels can be quite cavalier in the way they interpret this, sometimes reaching their apparently capricious decisions on the basis of evidence which boils down to ‘he said; she said’.

So in a case which no-one other than the CPS wanted to see brought, the only people to suffer have been Dr Dharmasena and the patient. The patient (who had no complaint about her treatment) at least enjoyed the anonymity provided by the requirement for medical confidentiality. Dr Dharmasena has been publicly vilified, lost a year of training, and now faces the trauma of an unnecessary GMC hearing, with no assurance that he will not be struck off despite the High Court declaration of innocence.

Clearly the CPS need to be free to prosecute cases where they believe a crime has been committed, without the fear that they will be taken to task every time a defendant is found not guilty. In this case, though, their insistence on proceeding despite professional advice has set back the fight against FGM and potentially destroyed the career of a good doctor.

Alison Saunders should be considering her position this morning.