Medical-Legal Implications of Neon Roberts Case Study - Essay Example

Medical-Legal implications of Neon Roberts Case Study Introduction The law generally entrust parents to make medical decisions involving their children. This is in recognition that parents are typically the parties who possess the strongest concern in guaranteeing the health and welfare of their children. Therefore, consent is essentially obtained from parents regarding the medical treatment of their children (Lynch, 2010). As ruled in Re R (A Minor)(Wardship: consent to Medical Treatment),1 at times the state prevents the parents from making significant medical decisions regarding their children’s treatment method, with the primary aim of protecting the health of the child. There are a number of exceptions to this ‘general rule’, which are outlined in statutory and common law to allow for treatment of minors in the best of their interest, as the case of Roberts (Tsai et al., 1993). The purpose of this paper is to show the circumstance under which the High Court found Mrs. Roberts’s parental consent unnecessary in making the decision to give Neon a radiotherapy treatment. This includes reviewing of the medical-legal implications of Neon Roberts case study, which saw the High court ruling against the wish of the child’s mother, regarding use of radiotherapy to treat the ailing boy. According to Pattinson (2009), Article 8 of the European Convention on Human Rights protects the rights of human beings, such that they are accorded social respect. As such, Mrs. Roberts and her son have social rights, which allow them to demand the respect of their family and private life (Bîrsan, 2010). However, the first paragraph of the convention declared these prerogatives in an absolute manner (Charrier, 2000). The second paragraph contains certain provisions under which the liberties and rights are subject to certain limitations. As Mason and McCall Smith (2006) provide, the High Court ordered Neon Roberts to undergo radio therapy, which was against her mother’s wishes, because it was recognized that failing to do so would have compromised the health of the boy. Whereas there are some potential risks associated with radio therapy including reduction in the patient’s IQ, tiredness, poor memory and loss of personality, among many others - in reaching its decision, the High Court tried to balance these risks against their potential benefits – and found that the benefits outweighed the risks, such that the parental consent would not have been required. When physicians request the courts to permit them to treat a child against the wishes of their parents, the law characteristically overrides parental opposition, provided there is enough evidence to show that doing so is in the interest of the child’s health (Veilleux, 2001). The decision by the court to allow the physicians to treat Neon in defiance of his mother’s objections interfered with his right to physical integrity and private life under Article 8 – that is, if Neon objected the treatment.2 However, as discussed, the interference of the court with that right had been done in accordance with the law.3 As Lowe and Juss (1993) provides, the fundamental question that was before the High Court was whether Mrs. Roberts had a legal right to refuse her son from being treated through radiotherapy, which was so essential considering his medical condition. However, the High Court also considered the obligations of the doctors, if the parent refused her son to undergo the treatment, and whether they should have sided with the decision of the parent or they were justified in seeking the court’s intervention. There are three sets of interests that come to play when seeking under what conditions a state may order medical treatment for a child contrary to the wishes of the parent. These include the responsibility of the state, the parent’s natural rights, and the personal needs (Brazier and Cave, 2007). According to Penkower (1996), it was the responsibility of the High Court to clarify that the parents have a legal duty to provide essential medical care to their children, and that failure to do so is a criminal offense. On the other hand, it was important to clarify that the law clearly allows parents to enjoy unlimited constitutional right to make essential decisions relating to their children’s health, guided by the principle of their conscience.4 As Jackson (2010) provides, in establishing whether this interference had been proportionate and necessary, the fact that Doctors could have foreseen the level of resistance to the treatment was pertinent, as was the burden on the Doctors in such circumstance to apply to the Court of law for authorization. However, a decision by the Doctors to take precedence over Mrs. Roberts’s objection to the proposed radiotherapy in the absence of authorization by a court of law could have resulted in a breach of Article 8.5 According to English medical laws, 6 a child who is under 16 years is considered incapable of withdrawing or giving an informed consent, therefore, the child’s parent has the responsibility of authorizing treatment in the best interest of the child (BMA and The Law Society, 1995). As ruled in Gillick v West Norfolk and Wisbech Area Health Authority, 7 this explains why Mrs. Roberts had all the rights to oppose the Doctor’s move to use radiotherapy in treating Roberts, although the court eventually overruled this opposition, in the interest of the child’s wellbeing – which is presumed to be of paramount importance (Wheeler, 2006). Although Mrs. Roberts was allowed by law to refuse any intervention if she deemed that her refusal was in the best interest of her child, 8the Doctors were not bound by such a refusal and were free to seek a ruling from the court of law, as they did. Furthermore, parents are prevented from insisting on enforcing decisions solely founded on their own inclinations where this is inconsistent with good medical evidence. 9For the purpose of this case, the Doctors told the High Court that Neon could die without further treatment, but the survival rate for children with radiotherapy was between 80 and 86% - this was credible evidence that potentially influenced the decision of the court (British Medical Association, 2001). Since Mrs. Roberts refused to give consent on the use of radiotherapy to treat her son, the Doctors fulfilled their legal duty by applying to the High Court, so the court could step in the her shoes.10 When the Doctor’s applied with the high court, the court took over the rights and duties of Mrs. Roberts - this should not be understood to mean that she could no longer make decisions regarding her son. All in all, the responsibility for the decision to withhold or to give permission remains a pilferage of the High Court.11 Conclusion In conclusion, the High Court held that because there was substantial evidence that Robert’s condition was very serious, radiotherapy was the best medical alternative considering its effectiveness. This is because there was evidence that it had a very high survival rate ranging between 80 and 86% as opposed to chemotherapy whose survival rate was only 35%. With such circumstances considered, the court found it imperative to deny the child’s mother, the right to decide on the child’s treatment method, because what she was opposing was in the best interest of the child, despite its multiple side effects (Alderson and Montgomery, 1996; General Medical Council, 1998). References Books and journals Alderson, P. and Montgomery, J., 1996. Health care choices: making decisions with children London: IPPR. BMA and The Law Society, 1995. Assessment of mental capacity: guidance for doctors and lawyers, 1995 Brazier, M. and Cave, E., 2007. Medicine, Patients and the Law,4th edn. 2007. London: Penguin, Ch.6; Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290. British Medical Association, 2001. Consent, rights and choices in health care for children and young people. London: BMJ Books. General Medical Council, 1998. Seeking patients’ consent: the ethical considerations. London: GMC. Jackson, E., 2010. Medical Law: Text, Cases and Materials, 2nd edn. Oxford: OUP, Ch.5, particularly pp223-253. Lowe, N and Juss, S., 1993. Medical treatment – pragmatism and the search for principle. 56 MLR 865. Lynch, J. (2010). Consent to Treatment. London: Radcliffe Publishing. Mason and McCall Smith, A., 2006. Law and Medical Ethics, 7th edn. Oxford: OUP, Ch.10, paras. 10.55 – 10.77. Pattinson, S., 2009. Medical Law and Ethics, 2nd edn. London: Sweet & Maxwell, Ch.5. Penkower, J. A., 1996. The potential right of chronically ill adolescents to refuse life-saving medical treatment–fatal misuse of the mature minor doctrine. DePaul L Rev, 45, pp. 1165-1174. Tsai et al., 2009. Evaluation and treatment of minors: reference on consent. Ann Emerg Med, 22(7): pp. 1211–1217. Veilleux, D.R., 2001. Medical practitioner's liability for treatment given child without parent's consent. ALR, 67(4), pp. 511-518. Wheeler, R., 2006. Gillick or Fraser? A plea for consistency over competence in children: Gillick and Fraser are not interchangeable. British Medical Journal, 332 (8 April), p. 807. Cases and Legislations/Acts (Re J (A Minor) (Wardship: Medical Treatment) ([1990] 3 All E R) Article 8 of the European Convention on Human Rights Chatterton v Gerson [1981] 1 All ER 257; General Medical Council, Seeking patients’ consent: the ethical considerations, November 1998, paragraphs 35-36 Gillick v West Norfolk and Wisbech Area Health Authority (1985) Paragraph 24 of the General Medical Council's guidance Re M (child: refusal of medical treatment) [1999] 2 FLR 1097 Re R (A Minor)(Wardship: consent to Medical Treatment) [1991] 3 WLR 592. Re W (A Minor)(Medical Treatment) [1992] 4 All ER 627. Storck v Germany 61603/00 (2005) ECHR 406 Read More