Law and Ethics of Consent from Children in Medicine - Essay Example

1 Law and Ethics Among Children in Medicine Concept of Informed Consent In law children are those under 18 years of age. When ever providing consent for medical treatment, according to the age of the child there is a variance of treatment. The Family Reform Act of 1969 provides that, ”the consent to treatment of a 16 or 17 year old is to be treated like the consent of an adult”( FRA 1969). Minors in some places are deemed incompetent and are not given the right to consent. In England, one can challenge the presumption of incompetence on the basis of proving that the minor is mature enough to understand the procedures and the outcome. However, whenever the minor is considered incompetent, the informed consent is required from the parents. This has no application to a refusal of medical treatment or to non-therapeutic procedures like organ or blood donation. For those children under 16 there is precedent in case law governing consent to treatment. The law was set out in the case of Gillick v West Norfolk and Wesbech AHA [1986] AC 112, the court held, “that if a minor has sufficient intelligence and understanding to enable him/her to understand the treatment and implications of treatment then he/ she is Gillick competent and can consent to treatment”( Gillick) The Human Rights Act 1998, which came fully into force on 2 October 2000, incorporates into UK law the bulk of the substantive rights set out in the European Convention on Human Rights: of particular relevance to this area Article 2, the right to life, Article 3,m the right not to be subjected to inhuman or degrading treatment, and 2 Article 8, the right to respect for private and family life” (HRA 1998) Parental responsibility According to the British Medical Association, “after 1 December 2003 (England and Wales), 15 April 2003 (Northern Ireland) and 4 May 2006 (Scotland), both of a child’s legal parents have parental responsibility if they are registered on the child’s birth certificate. This applies irrespective if the parents are married or not. A child’s biological parents are the child’s legal parents ( although legal parenthood does not necessarily confer parental responsibility), unless the child has been formally adopted or was born as the result of some methods of assisted reproduction. Where the child has been formally adopted, the adoptive parents are the child’s legal parents and automatically acquire parental responsibility. Where the child has been born as a result of assisted reproduction, there are rules under the Human Fertilization Embryology Act 1990 that determines the child’s legal parentage”(BMA 2006) The BMA elaborate further on parentage and states, “in relation to children born before 1 December 03 in England and Wales, 15 April 2002 in Northern Ireland, and 4 May 2006 in Scotland, both of a child’s biological parents will only automatically acquire parental responsibility if they were married at the child’s conception or at sometime thereafter. If the parents have never been married only the mother automatically has parental responsibility. The father may acquire it in various ways, including by entering into a parental responsibility agreement with the mother, or through a parental 3 responsibility order made by the court” (BMA) The British Medical Association handbook points out that, “In England and Wales no statute governs the rights of people under 16 to give consent to medical treatment, and there remains some uncertainty in common law. In the landmark Gillick case for example, the judges held that, parental rights were recognized by the law only as long as they were needed for the protection of the child and such rights yielded to the child’s right to make his own decisions when he reached a sufficient understanding and intelligence to be making up his own mind”(Gillick) A child who is competent can consent to treatment, however, a refusal may be overridden by a parent or the court where such refusal would be likely to result in the death or permanent disability of the child. Then the wishes of the child would be overridden to preserve his/her long term interests. The case of Re M [1997] is used to amplify this point: M was a competent 15 ½ year old who sustained acute heart failure and required a heart transplant. She stated that she did not want someone else’s heart and refused to give consent. It was considered to be in her best interests to have the transplant and (although she ultimately consented to the operation), it is clear that the treatment would have been declared lawful despite a refusal”(REM [1999]. Adolescent Patients and “minor” classifications Adolescents are probably the most misunderstood group when they attempt to avail of health care. There ate a myriad of barriers ( confidentiality, access, ability to consent 4 care, privacy and costs) which hamper the adolescent from receiving adequate health care. The American Academy of Pediatrics Committee on Pediatric Emergency Medicine states that, “Adolescents usually can be treated in emergency situations, since consent is implied, but the medical condition typically must involve an imminent health threat” (APCP) “considerations leading to this policy include the long term ramifications to both individual health and society if the adolescents were not permitted to seek care for these conditions. Thus, many jurisdictions permit minors to seek and consent to care for the following: pelvic examinations, screening for and treatment of sexually transmitted diseases, counseling for and prescribing of contraception ( emergency and routine), parental care, treatment following sexual assault, substance abuse, and mental health disorders”(APCP) There are special classifications of certain types of minors; “emancipated minors’ and “mature minors”, who are by law, sanctioned to solicit health care and provide informed consent beyond those special circumstances which are permitted in some jurisdictions; “an emancipated minor” is defined as an adolescent who is married, pregnant, a parent, a member of the military, or self-supporting ( ie., living on his or her own without parental control or financial support) adolescent parents generally make health care decisions for themselves as well as their children”( APCP) “Mature Minors”, have a distinct legal classification from that of an emancipated minor. While an emancipated minor is classified as such due to their life circumstances, ‘mature minors”, 5 have adequate psychological and physical maturity which ostensibly enables them to render medical decisions, even though they are not of the recognized legal age. Before an adolescent is granted the right to make informed consent decisions on their own behalf, it is customary for them to be a party to a judicial proceeding, to determine their maturity. Whenever a jurisdiction has a specific law which dictates parental consent of ‘mature minors” for certain procedures and the parent and the minor disagree, then judicial intervention may be warranted. Protecting Confidentiality The law in Gillick is clear on children under 16 being afforded the right to make consent to medical treatment decisions after a positive finding of competence shows them to be a “mature minor”, and after the individual is classified as an “emancipated minor”. However, there are still ethical issues involved when the variable of confidentiality is factored into the equation. The following case study highlights the ethical dilemma and legal vulnerability of the health care provider: Dr Jennings a consultant gynecologist at a NHS trust, approaches the chair of the clinical trust’s ethics committee requesting the advice of the ethics committee on the following case; “She has just seen a 15 year old girl (pseudonym Mary) in her gynecology out patient clinic who has been referred to her by her GP for termination of pregnancy. Mary said she was nine weeks late. She has been with the same boyfriend for one year and they are both convinced that he has fathered the child. She said she was 6 using the oral contraception pill on a regular basis and now she is amazed that she became pregnant. She indicated to Dr. Jennings that she is not in favor of an abortion, but after numerous discussions with her boyfriend, she is convinced that she is not fully ready to be a parent. Her mother has not yet been informed and Mary is adamant about her being appraised of either the pregnancy or the pending abortion. She has been estranged from her father for more than thirteen years and she does not have any siblings, nor does she have any other close relative, whom she is aware of. Dr. Jennings is not comfortable about performing an abortion without informing the mother of the minor. She feels it is imperative for Mary’s mother to be appraised, because there could be complications after Mary is released from hospital care, and since Mary does not have any other close relatives, so the doctor is afraid Mary would not receive any emotional support while she endures all of the pressures which can accompany the post-op procedure. Dr Jennings has made a follow-up call to Mary’s GP and articulated her concern, and the GP informed Dr. Jennings, that he was not prepared to breach Mary’s confidentiality. This case history presents an obvious challenge to the key principle of medical ethics, which is the respect which is due an individual’s decision concerning his or her medical care. The law in Gillick states: “that if a minor has sufficient intelligence and understanding to enable him or her to understand the treatment and implications of treatment then he or she is Gillick competent and can consent to treatment”(Gillick) 7 In Coleridge R v Instan [1893] 1 QB at 4532 AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust [2004] EWHE 644, 2004 77 BMLR 145, the guiding principle of law stated, It would be incorrect to say that every moral obligation involves a legal duty, but every legal duty is founded on a moral obligation” Thus, the doctor has a duty in regards to the patient’s right to confidentiality and should not provide any information to another party concerning the patient’s condition without her consent However, in the best interest of the patient, it is conceivable that the doctor could recommend some type of intervention and counseling, with Mary’s consent of course, for her to speak with a medical social worker. Obviously the prevailing principle to preserve Mary’s autonomy is extremely important. However, ther is an intervening variable which begs a worst case scenario, and one which Dr. Jennings would be remiss in ignoring, considering her hypercritic mind set. The law on confidentiality and people under 16, brings with it an exceptional circumstance clause which states: “Although respect for confidentiality is an essential element of doctor-patient relationships, no patient, adult or minor, has an absolute right to confidentiality in all circumstances. Confidentiality must be balanced against society’s interest in protecting vulnerable people from serious harm. Thus, in rare cases for example, a breach of confidentiality may be justified if the patient’s silence puts others at risk and the doctor can not persuade the patient to make a voluntary disclosure” (BMA) ‘The law on informed consent gives effect to ethical principles of respect for 8 autonomy, and the current development of a Medical Capacity Bill in the UK highlights the need to enable patients to make treatment decisions for themselves. Law and ethics are both normative, that is they are concerned with a minimum standard of behaviour that may be considered acceptable or unacceptable by the relevant society”(Section D) The Ethics of Consent and the Right to Refuse Treatment Individuals are to be provided their just respect and are to enjoy full disclosure of information which will empower them to render an informed and beneficial decision. Those who are experts in the area of informed consent contend that the elements which follow should be inclusive in discourse surrounding the concept. Information transfer; explanations to patients should be presented in everyday common vernacular, on the type of illness or condition; the type of all perceived or anticipated diagnostic measures and the chances of the success of the treatment suggested. The patient should also be appraised on the fact that there are risks, and the risks should be thoroughly explained. They should also be informed of what the outcome will be if the patient decides not to engage in any treatment at all. Assessment procedure; the doctor should devise a personal process whereby he can, on the spot, make a professional determination whether the patient or person being informed secures an intelligible understanding of the information being presented. Capacity; the doctor should make an assessment of the patient or the representatives 9 capacity to make decisions on the basis of the facts presented to them. Establish Consenters free will; the doctor should be confident that the person making the decision is independent of any pressure or alternative agendas, and that the decision is being made solely based on the facts for the patient’s well-being. Obviously, prior to any medical interventions being initiated, the health care professional should engage the patient in a discourse of informed consent. Unless the patient has a debilitation which precludes them from the decision making, or has been determined by a judge that the intervention or treatment is necessary, then patients are armed with the legal and moral right to refuse the medical treatment. This moral and legal right towards a competent patient autonomy must be honored, even if it means discontinuing life sustaining treatment. Proxy Consent Proxy consent happens whenever a person secures the legal right to make decisions for someone else, who for various reasons, is unable to legally or medically, render rational decisions. Such as a parent who either refuses or consents for their minor child, in the form of a proxy. Whenever a parent is called upon to make decisions on behalf of their offspring, the parent must also be deemed just as competent, as though they were making the decisions for themselves. In addition, and as advanced by Buchanan et al 1989, “an assumption is made that the parents are acting in the best interest of the child and is thus better able to decide for the child than anyone else who 10 might be substituted in their stead”(Buchanan et al) In the Journal of Pediatrics, the following observation is made concerning the hardships face with the proxy concept. “In attempting to adopt the concept of informed consent to pediatrics, many believe that the chils’s parents or guardians have the authority or ‘right’ to give consent by proxy…However, the concept encompasses many ambiguities. Consent embodies judgments about proposed interventions and, more importantly, consent (literally “to feel or sense with”) expresses something for one’s self: a person who consents responds based on unique personal beliefs, values and goals”(Pediatrics) Conclusion Informed consent can be very difficult to assess, particularly in children. This is due primarily because rarely is there ever at any point in the process an expression on a positive note, nor is there any assessment made to determine whether the absolute consent was extended, nor is there an assessment tool or mechanism to sufficiently determine whether the important points have actually crystallized in the minds of those appraised. Oftentimes there is merely a presumed consent because no verbal dissent is openly expressed. Given some of the grey areas, there are situations where consent is legally precluded, and it does not make any difference that the 11 individuals might vehemently stipulate that they are in accord with the proposed/ needed procedure, and that they understand the risks and ramifications. There are numerous instruments at the health care professional’s disposal which can assist in analyzing one’s capacity to provide informed consent, but the available instruments are unfortunately less than perfect at present. so there is a heavy reliance placed upon past experiences, education and training, observation or dependence on law, to assist in enabling the final determinations. Works Cited Anderson, P., 1990, Choosing For Children: Parents Consent to Surgery Oxfor, UK; Oxford University Press American Academy of Pediatrics on Pediatric Emergency Medicine British Medical Association 2006 Buchanan, A. E., & Brock, D. W., (1989) Deciding for others: The Ethics of Surrogate Decision Making; Cambridge, MA, Cambridge University Press, 1989 Gillick v West Norfolk and Wisbech AHA [1986] AC 112 Human Rights Act 1998 Lidz, C. W., Applebaum, P. S., & Meisel, A., (1988) Two Models of Implementing informed consent, Auch Intern Med. 1988: 148, 1385-1389 Lord Chief Justice Coleridge R v Istan [1893] 1QB at 4352 AB Parental Responsibility Guidance from the Ethics Department 2006, Handbook of Law and Ethics Pediatrics, volume 95 no.2 p. 314-317 Re M [1997] 2 FLR 1097 Section D, Professional Guidelines, Law and Ethics, UK Clinical Ethics Read More