Recognition of Children's Rights in Hospital - Essay Example

Recognition of children's rights in hospital Introduction This paper critically examines children’s rights in the hospital. As the children are powerless to express themselves to assert their rights whilst they are in hospital, it is the duty of the society to ensure that they get proper treatment with dignity on par with adult patients. In several situations, they are hospitalized for reasons unknown to them. Imagine how an adult with full consciousness would feel when hospitalized without being told the reason for his/her hospitalization. An adult would immediately react and would demand to know the reason. Same should be the case with children but they can not show their protest. Or do not know how to react. This is just an example of several such situations this essay seeks to discuss and assert their rights while in and out of hospital. Children’s rights Children have a right to receive clinically based treatment. They need courtesy, dignity, privacy and should be able to discuss with hospital staff without parents' presence if so required. The hospital should have children's facility for play and education as their age and medical conditions demand. They need to be informed in writing about their illnesses and different options for treatment. They should be introduced to caring staff and be able to communicate with clinicians and surgeons involved in their treatment. (Children in hospital 2007). When in hospital children experience inexplicable without much awareness of their body and they do not have any idea as to when they would recover from their sufferings. Reports in early 1950s had shown that children's experience in the hospital had been confusion, bewilderment, regression to prior stage of development, and reduced levels of self-esteem. (Platt 1959) Lord Platt’s report which contained 55 recommendations, advocated for mothers’ presence with children of at least age below five. He agreed with reports of psychologists that children who had become calm after some time of separation with mental agitation from parents in hospital were deceptive. They had been actually experiencing feeling of bereavement. ( International Initiatives Until the following initiatives on an international level, children’s rights had not been recognised. In fact Platt report of 1959 had indicated that parents should not be excluded from children. But the recent policy decisions recognised the need for parents’ presence with children. Position earlier to Plat report was not to deny children their right to be with the parents but it must have been under a different perspective of parents becoming so emotional as to interfere with or unintentionally obstructing treatment WHO European Strategy for child and adolescent health and development held at Copenhagen in 2005 voiced that as per the Convention on the Rights of the Child, Government is legally and morally obligated to promote and protect rights of children.(WHO 2005) The 1989 United Nations Convention on the Rights of the Child conferred three rights for children. They are: 1) right to resource and care through good hospital care, food, warmth, safety and parents' care. 2) There shall be no neglect and abuse of children and there should have no fear, pain, loneliness and unnecessary medical interventions besides neglect of the required and 3) right to self determination, dignity, respect, integrity, non-interference and the right to make informed personal decisions. Ten rights enumerated by the charter of European Association for Children in Hospital (EACH) are shown in Appendix 1. The underlying idea in the above rights is that parents will have knowledge of what is happening to their children and to enable children themselves to have some idea of their sickness to the extent of their ability to understand and to avoid imaginary assumptions attributed to the age of the children as if they care incapable of understanding. Since patients do have their own understanding of their case, they should be encouraged to express their views. Ethics demand not to do any harm and this principle advocates that the children should not be unnecessarily admitted in the hospital unless absolutely necessary and also should be spared of invasive interventions replaced by non invasive procedure such as scans though in some cases they are also considered psychologically invasive. (Alderson 1993) Right to consent Although the above are for more comfort to the children, the foremost one is their right to consent for treatment. One child patient Robin aged 13 is quoted to have said that all age limits be scrapped completely and instead maturity be recognised. (Alderson 1993.9) In spite of progressive court decisions from late 1960s to early 1990s favouring children under 18 years for their right of self determination for agreeing or refusing to treatment, a 1992 decision reversed the position putting the clock by 30 years. In that case of 1992 (Re W) Lord Donaldson decided against an orphan girl who refused to take food and was forcibly tube-fed on her 16th birth anniversary. On her appeal, Lord Donaldson ruled that no child under 18 had the absolute right to decide on his/her own regarding treatment.(Shield and Baum 1994) While so , in the case of Gillick v West Norfolk and Wisbech Area Health Authority, children under 16 years could decide regarding their treatment regardless of their parents' wishes if the children possessed enough intelligence and comprehension, These conflicting decisions gave an impression that when the same under-aged consented it appeared rational and when they refused, it was found they were incompetent. (Devereux et al 1993) Except for life threatening situations. Children do get their freedom to decide if they so insist. Doctors have the responsibility to recommend best course of treatment and in case of impasse due to conflicting positions of the parents, courts are forced to interfere. This raises the question when a child acquires capacity to take decisions. In a survey conducted among 120 children under orthopaedic surgery by Priscilla Anderson, children themselves considered 14 years as the competent age to decide on their own, while parents opined it as 13.9 years and health professional as 10.3 years. Alderson describes that children were dismayed and angry that they were simply cheated by explanations and were not treated as individuals. (Alderson P 1993.9) This is a sheer abuse of children's rights except in life threatening situations. (Shield and Baum 1994) The three main issues regarding children's rights are (1) As held in Gillick's case even though children are allowed to decide depending on their mental make up, it is the doctors who have to certify their maturity. (2)Unless doctors tell children their real position, they can not make a choice however mature they are. This is based on the view that if doctors break the news of potentially fatal condition to them, it would only do more harm than good. But more important is that children need not undergo uncertainty without any clue of what is wrong in their body and hence they should know what really is wrong and whether treatment would cure their condition or not. Since parents would like their children not to know if they have HIV infection. Keeping the secret from children will not make them any better. It is their prerogative to come to terms with their condition. (3) the clinical research in which children are subjected to and which is not to their benefit but for other sufferers. How a child can resist this when the doctors harp on maturity claim has not been resolved. (Rachel 1997) At the same time, there are cases when doctors are put to criticism against their own clinical judgment by their own peers. Thus when a 16 months old severely brain damaged child due to a fall when one month old was being refused to be kept under ventilation considered futile by the doctors against the wishes of parents, appeal court reversed High Court `s verdict saying that Doctors' clinical judgement was final and could not be questioned as in that particular case the child was suffering from cortical blindness, severe cerebral palsy, and epilepsy and was being fed through a nagogastric tube and had the risk of inhaling the vomit during tube feeding or developing an epileptic fit in which case it was inadvisable to put the child under ventilation rather than giving resuscitation with suction.(Clare 1992) Clare (1999) reported that in the case of a teenager girl, court allowed Doctor to go ahead with their clinical judgement to give heart transplant much against her wishes based on the report of the court appointed solicitor stating that the patient was overwhelmed with the prospect of living with another person's heart as a different person which showed that she lacked capacity to weigh pros and cons to make an informed decision. Discussion All said and done, if law is looked into, contractual relationship between the doctor and the patient would give rise to three possibilities of breach of contract, battery and negligence a doctor will be exposed to. The contract has both implied terms as well as express terms. Express terms may relate to payment and particular medical or surgical procedure but those against public policy such as selling organs can not be valid even if they are expressly provided. Implied are those that are invoked by operation of law. But a doctor's assurance to cure a patient can not be an implied term of contract. Much will depend upon the evidence produced by both the parties just as what happened in the case of Eyre v Measday [1986]. Here the woman patient who underwent sterilisation was not told that there would be a risk of sometimes the operation turning out to be unsuccessful except insisting that the sterilisation was not reversible. The appeal Court which the woman approached on becoming pregnant again, after examining the oral evidences of the doctor and patient, ruled that he could not have given an express warranty though he admitted that the woman might have thought she would become 100% sterile but would have not thought that he gave her any guarantee. But in similar circumstances in Re Thake and Another (1986)where a man underwent sterilisation which failed resulting in his wife's pregnancy, court ruled against surgeon for breach of contract or breach of collateral warranty since no warning was given by the surgeon for possible vas re-canalising in spite of the operation. The decision was based on the facts and evidences of the case where the surgeon purported to give implied warranty against the man becoming fertile again. This much about breach of contract. Next comes Battery which arises when the doctor happens to touch the patient the least without consent as was established in Cole v Turner (1704). The concept of hostility behind touching was dispensed with and mere touching without consent was held to be enough to constitute battery. This became necessary since doctors would be tempted to examine the patient in their anxiety or enthusiasm to give treatment. Doubts may arise in what context these adult examples would apply to children's rights issue. It is only to impress that children also are to be treated in the equal footing as set out by U.N. convention for Children's rights. In all cases seen above, the courts have allowed themselves to be used by the litigants lest doctors would be accused of violating their rights. The courts have always upheld the clinical judgement of the doctors even if resisted by the children or parents. This was only in life threatening situations and not in all ideological or flimsy reasons where children have been enjoying their freedom. It appears that doctors' clinical judgement is given supremacy by the courts only in order not to lose a life at any cost. In one case seen above, doctors' clinical judgement against ventilating a severely brain damaged 16 months old child against the wishes of the parents has been upheld by the court which shows that both doctors and courts are impartial. Hence it all crystallises to one point that doctors' clinical judgement along with approval of the court would be necessary when it comes to the Children's' rights in the hospital. This seems to be a reasonable public policy since doctors' clinical judgements are put to test in courts so that they would not indulge in giving out irresponsible and biased clinical judgements. Conclusion It can be safely concluded therefore that as long as respect human values exist, children's rights will continue to be treated as most privileged since the society has achieved much for children ever since passing of the U.N.convention of Children's' rights in 1989 except when it comes to life threatening situations for obvious reasons References Alderson Priscilla. 1993, ‘European Charter of Children's Rights’, Bulletin of Medical Ethics, October, pages 13-15 Alderson. P. 1993, ‘Children's consent to surgery’, Buckingham: Open University Press. September Children in Hospital. 2007, ‘Rights and Responsibilities of Children and parents’ The Royal College of Surgeons of England Patient Liaison Group, Available at http://www.rcseng.ac.uk accessed on 15 April 2008 Clare Dyer.1992, ‘Clinical judgment upheld by Appeal Court’, British Medical Journal.  304. n6842 June 20, 1589(2) Clare Dyer. 1999, ‘English teenager given heart transplant against her will’. British Medical Journal.  319.7204, July 24,209. Cole v Turner.1704 6 Mod 149 per Holt CJ Devereux JA, Jones DPH, Dickenson DL. 1993, ‘Can children withhold consent to treatment?’ British Medical Journal, 307:1459-61. Eyre v Measday .1986, All ER 488 per Slade LJ, pp 488, 492-494 Platt Harry, 1959, `The Welfare of Sick Children in Hospital' London Rachel. Bulford. 1997, ‘Children have rights too’ British Medical Journal. 314. n7091, May, 1421(2) Re W [1992] 3 WLR 758 Shield, J.P.H., and J.D. Baum. 1994 ‘Children's consent to treatment: listen to the children - they will have to live with the decision’. British Medical Journal. 308. n6938 May 7: 1182(2). Thake and Another v Maurice [1986]1 QB 644 WHO. 2005, `WHO European Strategy for child and adolescent health and development, Copenhagen 2005' EUR/RCSS/6.accessed Available at http://www.euro.who.int/document/E87710, Accessed 14 April, 2008 Appendix (Alderson 1993) 1. Children should be taken to hospital for stay there only if they can not be looked after in the same manner at home. 2. They are entitled to have their parent or parents to be always with them in the hospital. 3. Parents should be given accommodation at the hospital without additional costs. 4. Parents and children should be informed of the health status appropriate to their age and both be relieved of physical and emotional stress to the extent possible. 5. Both parents and children should be involved in the decision making regarding their health care and the children should be spared of unnecessary treatment and investigation. 6. Children of same developmental needs should be together cared for and they should not be kept in adult wards. Persons visiting children should be allowed without age restrictions. 7. Facilities such as play, recreation and education should be made available adequately with proper equipments and qualified staff. 8. There should be staff qualified and trained enough to respond to the physical, emotional and developmental requirements of the children and parents and other family members. 9. The caring team at the hospital should ensure continued care to the children and 10. Children should be sympathised and suitably tackled and their privacy should be recognised. (Alderson 1993) Read More