Is the Autonomy of Children Upheld in Consenting to Medical Treatment - Coursework Example

By an analysis of case law how far do you consider the autonomy of children is upheld in consenting to medical treatment Introduction Modern legal and ethical requirements have significantly impacted doctors’ approach to patient involvement in decisions in relation to treatment with a “discernible tendency to overload the information dumped upon patients about infinitesimal risks until the unhappy souls are either scared out of their wits or disregard the lot as incomprehensible mumbo-jumbo1”. Legal concepts of consent within the ambit of medical ethics establish three fundamental elements of proper consent: - capacity; - voluntary participation; and - sufficiency of information2. Academic reasoning propounds that the fundamental purpose of obtaining patient consent to a specified treatment is to protect doctors against committing an actionable tort of battery. Lord Donaldson emphasised this justification in Re W (a minor)3 adopting the analogy of a legal “flak jacket”, which protects doctors from litigious claims and sanctions their right to proceed with treatment without litigious consequences. In highlighting the legal purpose of consent as operating as a “flak-jacket”; Lord Donaldson also pointed out the clinical purpose of consent, which is essential to efficacious medical practice. The dynamic of these principles fundamentally alter in the complex area of consent and minor patients, which is an often controversial legal minefield. The focus of this analysis is to critically evaluate the law in relation to minor consent to medical treatment and consider how far the courts preserve autonomy of children in reaching difficult decisions. Furthermore, it will also be necessary to consider the law relating to patient consent, parental responsibility and consent and the right of medical practitioners to withdraw or withhold life prolonging treatment. 2. The Human Rights Act and Minor Patient Autonomy It is important at the outset to mention the impact of the Human Rights Act 1998 (HRA)4 and its impact on the issue of consent under English Law. NHS healthcare authorities are “public authorities5” for the purpose of the Act and as such, NHS trusts are required to act in accordance with the European Convention on Human Rights (ECHR6). The HRA implements and grants ECHR protection to patients in the UK and in considering the issues in relation to consent and minor autonomy, courts have a positive obligation under the HRA to uphold directly enforceable rights under the ECHR. The rights of the ECHR which are most likely to be relevant when addressing minor patient rights are to be found in the following: Article 2, the right to life (which may conflicts parental wishes to withhold or continue treatment depending on the factual circumstances); Article 3, the prohibition of torture or inhuman and degrading treatment (if minors are forced to continue with treatment against their wishes there is potential for breach here); Article 4, the right to liberty and security of the person; and Article 8 – the right to respect for private and family life. Not all the rights under the ECHR are absolute and can be restricted under interests of national security and the protection of health, rights and freedoms of others. However, any such restrictions are limited within specified legal grounds, in pursuit of a legitimate end7. Furthermore, the degree of interference with an ECHR right must be proportional to the aim to be achieved by such interference. Accordingly, it is imperative that in considering the best course of action, NHS Trusts and courts must take account of the rights granted under the ECHR. All appropriate policies and relevant consent forms should take account of the ECHR to ensure compliance8. Furthermore, from an ethical viewpoint regarding consent to treatment, the General Medical Council’s ethics guidelines9 (the Guidelines) focus on the need for patient autonomy and highlights recommendations for informing patients at all stages of the treatment process. Accordingly, NHS trusts must ensure that all options available have been communicated to and discussed regarding a minor patient’s treatment including the risk of undergoing the proposed treatment and the risk of refusing treatment. 2. Right to Refuse Treatment It is important to highlight at the outset that in order for any patient consent to be valid, the patient must have received sufficient information to be regarded as having “informed consent10”. The law as enshrined in the Guidelines11 asserts the concept of informed consent, which imposes a positive duty on doctors to give all relevant facts to a patient in comprehensible form. This includes a non-exhaustive guide including non-operative methods and non-treatment, a description of the expected outcome for each alternative procedure. Commonly, case law has focused on a minor patient’s autonomy to withhold consent to treatment. In strict adherence to legal principles, although a minor under the age of 16 may not want to continue with the proposed treatment due to the poor prospects of survival and constant suffering under the statutory provisions the very fact of being a minor will render the patient legally incapable of giving consent. However a degree of flexibility in relation to consent of minors is enabled under the common law depending on the circumstances of the case. In the case of Gillick v West Norfolk Health Area Authority12, the House of Lords gave guidance on what consent could be given by minors. The rules laid down by the House of Lords in the Gillick case have also been incorporated into the Guidelines, which NHS Trusts’ must follow as good practice in approaching the issue of minor capacity to consent. The Gillick rules are as follows: 1) The test is whether the child had sufficient understanding and intelligence to enable him or her to understand fully what is proposed; 2) Each child must be assessed separately in relation to each different procedure. Accordingly, competence to consent must be assessed in relation to the specific new treatment suggested and not be judged on understanding of previous treatment; 3) There is no specific age at which a child becomes competent to consent. It ultimately depends on the particular child and on the seriousness and complexity of the treatment proposed; and 4) The Gillick test is about capacity and not the ability of the child to make a choice that people might consider wise. Furthermore, in the Gillick case, the House of Lords asserted that the parents’ rights to take decisions “yield to the child’s rights to make his own decision when he reaches a sufficient understanding and intelligence to be capable of making up his own on the matter requiring decision13”. Under the Gillick test, whether or not a minor is competent depends on his emotional and intellectual maturity. However, whilst the Gillick test clearly recognises the right to minor autonomy, the subjective nature of the test ultimately creates uncertainty as to how far this right extends in reality. Moreover, even if the relevant Trust can establish through clear and effective communication with a child patient that they are competent in the Gillick sense, English law on minor consent distinguishes between consent to treatment and refusal of treatment, which clearly limits the scope of minor patient autonomy. This does not appear to be Lord Scarman’s intention in the Gillick case as he expressly asserted that the competence test was referring to “the right to determine whether or not a minor child below the age of 16 years will have treatment.14” However in practice, the courts have undermined this express intention limiting its application to positive consent to treatment. For example, in the case of Re R,15 it was determined that a child under the age of 16 can consent to treatment but cannot refuse treatment especially in the event of proxy consent by someone with parental responsibility.16 Although this case considered refusal of treatment vis-à-vis parental consent, subsequent cases have also adopted this distinction.17 Accordingly, it would appear that even if a minor patient is determined to be Gillick competent for capacity purposes, the relevant NHS Trust will not be bound by his refusal of treatment and is only required to consider the patient’s wishes. This limitation on child patient autonomy is further highlighted by cases involving conflict between the patient’s wishes and parental rights in consent cases. 4. Conflict with Parental Rights With regard to minor patients, the general rule is that anyone with parental responsibility can consent to treatment on the child’s behalf18. Parental responsibility is defined under sections 2 and 3 of the Children Act 1989 (CA)19. Although individuals with parental responsibility are legally entitled to refuse consent to treatment, the British Medical Association Ethics Guidelines20 assert that people with parental responsibility are not entitled to refuse treatment which is in the child’s best interests. This is further supported by the reasoning in the case of Re C (HIV Test) 21where it was held that a parent’s wishes are not always the final determination of a situation involving medical treatment. In this case the Court of Appeal (COA) faced a mother’s refusal to agree to medical treatment of her child. In determining whether this refusal was binding the COA highlighted that the issue of whether a child should be treated was rooted in the overall objective of welfare of the child and not the parent’s rights and accordingly the relevant consideration was the best interests of the child. Whilst this decision highlights that parental opinion regarding consent will not be overriding per se, the judicial rationale is based on the CA guidelines of ensuring the welfare of the child, as opposed to any notion of deferring to minor patient autonomy. The relevant consideration is what is in the child’s best interests and courts have broken precedent in certain circumstances. For example in the case of Re T22 the Court of Appeal attached significant weight to the parents’ wishes, although it is arguable that these decisions are distinguishable on the grounds that there is a general trend to give consideration to parent’s wishes in the case of handicapped newborn children. 5. Conflicting Views of Parents vis-à-vis Minor Patient The inherent complexity of this area of law is further compounded in the event that the minor patient’s parents have conflicting views regarding treatment options for the child. Furthermore, Article 8 of the ECHR concerns respect for private and family life and should be at the forefront of any considerations about the involvement of parents in decision making on behalf of the child. Although recommended as good practice23, there is no mandatory requirement for joint parental consent. The case of Re R24 was the first case post Gillick to consider the issue of a competent child for the purpose of consent. Although minor in this particular case lacked competence for consent, Lord Donaldson addressed the situation where those with parental responsibility may override the refusal to consent by a competent child. Lord Donaldson asserted that even if a child was “Gillick competent” and as such refused treatment, the parent’s right to consent did not automatically disappear, but it could not simply be used by itself to defeat consent given by a child. In addressing the conflict of this view with Lord Scarman’s assertions of “terminating” and “yielding” in the Gillick case, Lord Donaldson made a distinction and suggested that Lord Scarman was referring to the parental right to determine whether or not a child should receive such medical treatment and adopted a “key holder” analogy whereby both parent and competent child hold a key and either can give valid consent and if one chooses not to give consent, it doesn’t necessarily stop the other from lawfully doing so. Ultimately, they have to look at what the paramount interest of the child is in accordance with the provisions of the Children Act 1989. The British Medical Association Ethics Guidelines also provide express guidance on the situation where people with parental responsibility disagree. The guidelines assert that discussion aimed at reaching agreement should be sought however the fundamental consideration is what is in the best interests of the child. If consensus cannot be reached the guidelines highlight that the clinician in charge must take a decision as to whose decision to proceed with in light of what is considered the best interests of the child. Accordingly, NHS Trust’s can legally proceed with the child’s consent notwithstanding parental refusal. Furthermore, the GMC guidelines “Withholding and Withdrawing life-prolonging treatments: Good Practice in decision making25” (the Guidelines 2) assert that where a parent successfully overrides refusal of treatment and gives consent, this consent cannot be vetoed by another person with parental responsibility. Under the guidelines on withholding treatment, the GMC asserts that in these difficult scenarios, parents will be led by the clinician’s medical opinion. The above analysis highlights the complexity surrounding the issue of minor patient consent. Whilst the Gillick competence test was initially heralded as a welcome move towards acknowledging minor patient autonomy, the subsequent judicial development of the test has muddied the waters with creating artificial distinctions between the right to consent to treatment and the right to refuse treatment. Arguably, the very fact that the Gillick competence test acknowledged the need to consider each minor patient’s autonomy on a case by case basis arguably requires the issue of minor patient autonomy to be determined ad hoc. However, the major drawback of this approach has been the interpretation of the law with the result that whilst theoretically minor patients have increased autonomy in consenting to treatment, the overriding consideration for the courts will be medical opinion and parental consent. BIBLIOGRAPHY M. Brazier., (2007). Medicine, Patients and the Law. 4th Edition Penguin Books. Jonathan Herring (2006) Medical Law and Ethics Oxford University Press. Emily Jackson (2006) Medical Law: Text, Cases and Materials, Oxford University Press. Jerry Menikoff, Edward P. Richards (2006) What the Doctor Didn’t Say Oxford University Press The Right Honourable Sir Robert Carswell, Lord Chief Justice of Northern Ireland., (2004). Consent to medical treatment –does doctor know best? The Ulster Medical Journal, Volume 73 No1 pp.37-44. Gilbert and Tripp (2003), Consent, rights, and choices in health care for children and young people, Journal of Medical Ethics 29 Edition 13. J Drake (2001) Informed Consent? A child’s right to autonomy Journal of Child Health Care, Volume 5, Page 101. British Medical Association., (2001) The Medical Profession & Human Rights: Handbook for a changing agenda. London Zed Books (in association with BMA). European Network of Scientific Co-Operation on Medicine and Human Rights (1998). The human rights, ethical and moral dimensions of health care: 120 practical case studies. Council of Europe Publishing J P H Shield, (1994) Children’s Consent to Treatment, British Medical Journal, Volume 308 Page 1182. All case law reports available at www.lawreports.co.uk All UK statute law available at www.opsi.gov.uk and www.statutelaw.gov.uk European Convention on Human Rights available at www.echr.coe.int All General Medical Council reports and guidelines available at www.gmc-uk.org Other Web Resources www.publications-parliament.uk www.patient.co.uk www.bma.org.uk Read More