Treatment Refusal Case - Essay Example

?Case One (Stephen) (Refusal of treatment) Stephen is found wandering the streets on a cold, rainy night. He is invited to take refuge in accommodation for the homeless. He accepts and receives food and a bed and is offered a shower. A Carer notices that he has a problem with his foot (it looks gangrenous) and wants him to be seen by a doctor. Stephen refuses. In order to address the issue of refusal of treatment it is necessary to consider the law in relation to consent. In this particular instance it will be necessary to consider the law with regard to the age of the individual as well as examine the law to determine how the matter might be handled if Stephen had a mental disorder. It will also be important to examine case law in this area to see when the courts have overridden the wishes of an individual and how this has been achieved. Through examining case law and with reference to legislation it should be possible to determine whether a doctor would have the power to override Stephen’s refusal of treatment. As there is no mention of the age of Stephen or whether he has any mental health issues, it will be necessary to consider the impact of the Children Acts and the Mental Health Acts, to determine whether these would assist Stephen in his refusal or whether a doctor would be entitled to force him to have treatment, irrespective of his wishes. The issue of consent has been encompassed into Art 5 and 8 of the Human Rights Acts (1998) (HRA), with the intention of giving respect to the autonomy of the patient. It has been noted by researches that doctors in general see consent as a legal requirement (Kessel, 1994). Human rights supporters have argued that the protection offered to adults should also apply to mature minors, which appears to have been addressed to a minor degree within the HRA (Hagger, 2003). In order for consent to be recognised as valid the principle of informed consent has developed. Informed consent centres on the giving of sufficient information to a patient with regard to the complications that might ensure following the treatment, so that they can make an informed decision about the treatment. Actions for negligence have been successful in cases where the patient did not give informed consent (Faden and Beauchamp, 1986). An example of this is Sidaway v Bethlem RHG and others [1984]1, in which the patient had not been told of all the potential risks of the operation, and would not have given consent if they had known of these risks. Davis (2005) has argued that there should be a change in the law in relation to such matters, and that patients should be given the option as to how much information they would like to know about the procedure. Implied consent has occurred in situations where a patient has willingly allowed the medical professional to administer medication or injections. However, implied consent can be problematic as simple attendance at the surgery or hospital does not mean that the patient is consenting to treatment. Autonomy is important in the decision making process and many legislative changes have been made in order to ensure the autonomy of the patient. Researchers such as Faden and Beauchamp (1986) believe that a patient has to be fully informed of the probable outcomes of the treatment in order to reach an autonomous decision. They were concerned that on some occasions persuasion and coercion might be used by the medical profession or the family of the patient to appeal to the patient’s sense of reason. Internationally the Nuremberg Code 1947 and the World Medical Association Declaration of Helsinki 1964 have been established as a means of increasing patient autonomy. As mentioned earlier the HRA has also enshrined protection of the rights of adults and adolescents into the Articles, thereby increasing autonomous levels (Hewson, 2000). Many of the issues surrounding autonomy have been centred on the rights of the child, as evidenced by the United Nations Convention on the Rights of the Child 1991 where the aim was to give children the same rights as adults in relation to decision making. Art 12 states …the child who is capable of forming his or her own views has the right to express those views freely in all matters affecting the child: the views of the child being given due weight in accordance with age and maturity of the child. ... the child shall in particular be provided with the opportunity to be heard in any surgical or administrative proceedings affecting the child directly; or through a representative body. Despite the inclusion of Art 12 full autonomy has not been granted to minors, and the Convention made it clear that children still require guidance from their peers in order to make a proper decision in relation to the proposed treatment. This essentially means that the wishes of the child can be overridden by anyone having parental responsibility for that child. A greater degree of autonomy has been afforded to 16 to 17 year old patients through the Family Law Reform Act 1991. Under this Act persons in this age range would be entitled to decide whether or not to undergo the treatment suggested. However, s8(3) of the Act restricted the patient from full autonomy by reiterating that the Act shall be construed as making ineffective any consent which would have been effective had the section not been enacted’. Parents can rely on this to override the wishes of their child if they believe that it is in their best interests to do so. Patients with mental disorders are also likely to not have full autonomy over treatments offered to them. The Mental Health Act 1983 has been used on several occasions to override the wishes of the patient. Medical professionals have a duty in applying this Act to determine the competence of the patient. It is the generally held belief that persons suffering from mental disorders will lack the necessary competence to give consent to treatment or to refuse treatment. In a report from the Department of Health (1999) the opinion was expressed that parental authority for treatment will suffice regardless of the competence of the patient. This was enshrined into the Code of Practice for the MHA 1983. The Mental Health Act Review 1999 recommended that the age of competence should be lowered to 16 and those children as young as 10 should be afforded the presumption of competence. The autonomy of the child was addressed in the Children Act 1989 following which limited rights to refuse treatment were granted to minors. However, exceptions still apply and the courts continue to consistently override the wishes of the child, on the grounds that they are acting in the best interests of the child. Although doctors recognise the right of patient autonomy they still maintain the ability to refuse to administer treatment if they believe that the treatment is not in the best interests of the patient. Brazer (2006) observed that Autonomy and the right of self-determination do not entitle the patient to insist on receiving a particular medical treatment, regardless of the nature of the treatment. In so far as a doctor has a legal obligation to provide treatment this cannot be founded simply upon the fact that the patient demands it. In general the right to consent to treatment is more readily accepted by the medical profession then the right to refuse treatment. The test for determining competence was established in Gillick v West Norfolk and Wisbech Area Health Authority [1986]2 where Lord Scarman ruled that "the parental right to determine whether their child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable them to understand fully what is proposed" . Gillick competence is consistently used to determine whether the child has sufficient understanding of the treatment to be able to make an informed decision. Fears that this case would open the floodgates for children to be able to assert their rights were ill founded, as the courts have consistently used case law and legislation to override the wishes of the child. This has particularly been evidenced in eating disorder cases, and mental disorder cases, where the courts have forced the patient to receive treatment irrespective of their objections. This was the case in Re R (A minor) (Wardship: Medical Treatment) [1991]3 where the court concluded that the patient had a psychotic illness which impaired their ability to make a competent decision. In Re W (A minor) (Wardship: Medical Treatment) [1992]4 , an anorexic patient was forced to undergo treatment regardless of her objections. The court ruled that the parents were entitled to insist on their daughter undergoing treatment and that their right could not be extinguished by the Family Law Reform Act 1969. Forcing adults to undergo treatment is far more complicated as in most cases the adult will be regarded as competent. As competence is one of the key factors used to override refusal the courts struggle to override the wishes of adults, even if the refusal of treatment appears irrational. Sidaway v Governors of Bethlem Royal Hospital [1985]5 demonstrates how an adult does not have to explain their reason for refusing to undergo treatment. Even in situations where the adult has been detained under the MHA competence might not be wholly extinguished. An example of this is Re C (Adult: Refusal of treatment) [1994] 6 in which the patient who was schizophrenic refused to have his foot amputated even though he might die if he did not consent. The patient in this case, did consent to less intrusive treatment and was fortunate not to die as a result. Doctors have expressed their disapproval of patient autonomy in situations where failure to treat may lead to death, as it goes against their purpose which is to act in the best interest of the patient. In 1995 the British Medical Association collaborated with the Law Society in compiling guidelines as to how competence might be determined. The basic elements of the test make it necessary for the medical professional to assess how well the patient understands the choices available, and whether they fully appreciate the consequences of the choices they make. Persons carrying out such assessments have a duty to ensure that the patient has not been coerced or pressurised into making the decision (Dickenson, 1994; Rushforth, 1999). When considering the ability of a child to consent, maturity should be a determining factor according to Alderson (1993), who expressed the view that this was essential as children mature at different rates and maturity can be affected by the way in which the child has been raised. Batten (19960 expressed concerns that it can be difficult to assess the maturity of a child with a mental disorder. Gersch (2002) was of the same opinion and therefore advocated that persons making the assessment must be trained in child development in order to understand the thought processes of a child. Gersch felt that this would help the professional to determine whether the child was acting under free will or whether they had been coerced into the decision they had made. Alderson (1996) suggested that medical professionals should determine the level of understanding that the patient has of their condition in assessing their competence. Alderson believed that by doing this the professional could be certain that the patient fully understands the consequence of refusing the treatment. Chapman (1988) felt that using age as an indicator of competence would be flawed since children mature at different levels. Chapman also expressed the opinion that using age would be inappropriate in relation to children with metal disorders. Although a mental disorder might affect the ability of a patient to make an informed decision doctors still regard patient autonomy as important when dealing with adult patients. With child patients the emphasis switches to issues surrounding the welfare of the child, which often leads to the decisions being made by the parents of the child rather than the child itself. This has been problematic, as it has been suggested that in many cases the parents failed to take into consideration the quality of life the child might have following the treatment.This led to the introduction of the 2007 Mental Health Act which recognised the rights of the child to be involved in the decision making process. Dickenson (1994) noted how the Act appears to accept that children mature at a much earlier age nowadays and that competence should be assessed on an individual basis. Other researchers, such as Shaw (1999) also believe that children should play an active part in the decision making process, especially in cases where refusal of treatment will only have minor consequences. Rushworth (1999) goes further by stating that all parties should be involved in the decision making process regardless of the mental capacity of the patient. Rushworth was concerned that the enforcement of treatment on a child who has refused could be regarded as child abuse. In 2001 The Department of Health issued a report in which they expressed the opinion that evidence of consent to treatment can be seen from the ‘patient’s agreement for a health professional to provide care.’ Gillon (1986) felt that consent is ‘a voluntary, uncoerced decision, made by a sufficiently competent or autonomous person on the basis of adequate information and deliberation, to accept rather than reject some proposed course of action that will affect him or her.’ Refusal of treatment becomes more of an issue in cases where the patient is over 16 as legislation accepts that such a person will possess the necessary competence to consent to or refuse treatment. This has proved particularly difficult in the treatment of eating disorders as part of the illness centres on the refusal to eat. Before the MHA 2007 doctors could utilise the 1983 Act to have the illness recognised as a mental disorder and thereby force the patient to accept treatment. The Royal College of Psychiatrists (2001) disagreed with this as the Act specifically deals with the refusal of medication, and with anorexia the treatment given would be making the patient eat. Szmukler et al, (1995) commented that difficulties could be overcome by having the patient formally admitted through classifying the illness as a severe medical risk7. Mental health legislation has been used in the treatment of adult anorexics as was the case in R. (on the application of M) v Homerton University Hospital [2008]8 where a 40 year old anorexic was admitted to hospital under s2 of the MHA 1983. The patient’s mother tried to overrule the order but the hospital applied to the court under s3 of the MHA for her continued detention and was granted the right to retain her in the hospital. Even in cases where the patient is deemed to be wholly competent the wishes of the patient have been overruled. This occurred in Re S. (Adult: Refusal of Treatment) [1992]9 where the court ordered that a caesarean be carried out despite the objections of the patient on religious grounds. The court held that as the life of the patient and the unborn baby were at risk the wishes of the patient should be overridden. This also occurred in Re T (Adult: Refusal of Treatment) [1992]10 where the patient was refusing a blood transfusion on religious grounds. Lord Donaldson relied on the fact that without the transfusion both the patient and the baby would die, even though the baby was subsequently stillborn. However, in St George’s Healthcare NHS Trust v S [1998]11 the patient was allowed to refuse to have a caesarean even though the baby died as a result of her refusal. It was observed by Judge LJ that the autonomy of each individual requires continuing protection, particularly when the motive for interfering is as readily understandable, and indeed to many would appear commendable... pregnancy does not diminish a woman’s entitlement to decide whether or not to undergo medical treatment. Her right is not reduced or diminished merely because her decision to exercise her right may appear morally repugnant. The courts have also allowed a patient to have a ventilation tube removed, even though doing so would result in the patients death. This was demonstrated in Re B (adult: refusal of medical treatment) [2002]12 . In Airedale NHS Trust v Bland [1993]13 the parents of the patient won a battle to have the feeding tube removed from their son who had been in a permanent vegetative state for a number of years following the Hillsborough disaster. The court accepted their request on the grounds that a feeding tube could not be regarded as treatment, eve though without the tube the patient would die. If the courts do not agree to override the wishes of the patient, a doctor could face charges if they failed to respect the wishes of the patient14. From all the above treatment of Stephen will be dependent upon his age, his competence to make such decisions, any abnormality of the mine and his level of maturity. If he is deemed to be a wholly competent adult then the courts would be unlikely to interfere with his decision not to have treatment. If Stephen is under 16 or has a mental deficiency then his refusal could be overridden by the courts, and he could be made to have treatment, irrespective of his objections. Overriding his refusal could be achieved either by consent from someone who has parental responsibility for him or by the doctors treating him. If he was found to have a mental disorder, treatment could be enforced using the mental health acts. Bibliography Alderson P,& Montgomery J. What about me? Health Service Journal April 1996:22–4. Alderson, P. (1993) Children's Consent to Surgery. Buckingham: Open University Press. Batten, D. A. (1996) Informed consent by children and adolescents to psychiatric treatment. Australian and New Zealand Journal of Psychiatry, 30, 623-632 Beauchamp T, Childress J (2008) Principles of Biomedical Ethics (6th Ed) Oxford University Press. Oxford. British Medical Association & the Law Society (1995) Assessment of Mental Capacity. London: BMA. Davis, J (2005), Doctors should be allowed to offer patients a simplified form of consent, expert says, British Medical Journal, 331 Department of Health & Welsh Office (1999) Mental Health Act 1983 Code of Practice. London: Stationery Office. Department of Health (2000a) Reforming the Mental Health Act White Paper - Part 1 ‘The new legal framework’ and Part 2 ‘High risk patients’. London: Department of Health. Department of Health (2000b) Reforming the Mental Health Act White Paper - Summary. London: Department of Health. Dickenson, D. (1994) Children's informed consent to treatment: is the law an ass? Journal of Medical Ethics, 20, 205-206 Faden, R. R. & Beauchamp, T. L. (1986) A History and Theory of Informed Consent. Oxford: Oxford University Press Gersch I. Resolving disagreement in special educational needs: a practical guide to conciliation and mediation. Routledge/Falmer, 2002. Gillon, R, (1986), Philosophical Medical Ethics, Chichester: Wiley Hagger L. Some implications of the Human Rights Act 1998 for the medical treatment of children. Medical Law International 2003;6(1):25–51 Hewson, B. (2000) Why the human rights act matters to doctors. BMJ, 30, 780-781. Honig, P, Consent in relation to the treatment of eating disorders, Psychiatric Bulletin (2000) 24: 409-411. doi: 10.1192/pb.24.11.409 Hope T; Savulescu J; Hendrick J (2008) Medical Ethics and Law. The Core Curriculum. 2nd Ed. Churchill Livingstone. London Kessel, A. S. (1994) On failing to understand informed consent. British Journal of Hospital Medicine, 52, 235-239 Law Commission (1995) Mental Incapacity (Law Commission Report 231). London: Law Commission (http://www.lawcom.gov.uk/library/lc231/contents.htm). 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