Mature Minors Refusal to Consent to Medical Treatment - Essay Example

Q At present, the law in England permits those under 18 to have their medical decisions respected if, but only if, they know what is good for them and accept the treatment that is proposed. Such a position is illogical and unjust and may have wider implications for the way in which children are viewed in our society, in that it suggests that children are in some way less entitled to full respect as members of our society by virtue of their status." {Elliston 1996 29} Critically evaluate this statement in the light of any THREE cases on a mature minor's refusal to consent to medical treatment. {Maximum 1,000 words} Although children in England do not reach majority until at least the age of eighteen, the law has almost for twenty-five years has been moving towards empowering even quite young children in the arena of health care. As a result children of sixteen and seventeen, and even some under the age if sixteen, have been treated as adults through medical care. The right of younger children to provide independent consent is proportionate to their competence, but a child's age alone is clearly an unreliable predictor of his or her competence to make decisions. A judgment in the High Court in 1983 laid down criteria for establishing whether a child, irrespective of age, had the capacity to provide valid consent to treatment in specified circumstances. Two years later these criteria were approved in the House of Lords and became widely acknowledged as the "Gillick test," after the name of a mother who had challenged health service guidance that would have allowed her daughters aged under 16 to receive confidential contraceptive advice without her knowledge. As long ago as 1969 the Family Law Reform Act declared that consent to medical treatment given by a minor of sixteen "shall be as effective as it would be if he were of full age," (1969) and in such cases parental consent need not be obtained. The empowered children to make informed decisions based on their competence and capacity. This view of children's legal rights have been strengthened in Gillick v. West Norfolk & Wisbech Area Health Authority (1985) where House of Lords ruling declared that "parental responsibility diminishes as child acquires sufficient understanding to make his own decisions" and that "at common Law a child of sufficient intelligence and understanding could consent to treatment, notwithstanding the absence of parents consent." This judgment clearly and expressly declared that a doctor might provide contraception to minor under sixteen with or without her parents consent. The law did not recognise any rule of absolute parental authority until a fixed age: parental rights were recognised 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 capable of making up his own mind. This has to be an exercise backed by sound clinical judgment taking into consideration what is best for the patients health. This was further supported by Health's Guidelines for Ethics Committee (1991) which holds that parental consent cannot override a competent child's refusal of consent. This was also supported in 1984 by the British Medical Association's Philosophy and Practice of Medical Ethics (1988) which advises that physicians may provide contraceptive to mentally mature women under sixteen without parental notification or consent if that clinically serves the patients best interest. (Kessel, 1993 ) Here the conflict is between autonomy and dependency, which characterizes the legal position of the minors. This lays emphasis on the rights to decide on the matters of sexuality, reproduction, partnership, marriage and parenthood which are influenced and limited by parental rights and also affected by state regulation. This leads to the more pertinent question of the social rights of minors around the issue of sex education, as one of the most controversial subjects investigated. Theses also include social rights such as access to information, counselling services, and contraceptive and health services with regard parents under civil Law. These are the issues which affect the social construct of the parental role, social obligation and the gender based decision. The awareness of these rights and issues can have amazing impact on the thinking of the new generation. Consent has been give a significant importance which is very evident in this case. In the case of Re W (A Minor) (Medical Treatment) (1992) 9 BMLR 22, Lord Donaldson MR identified the following purposes of the obtaining consent to treatment. His exposition can be summarised as follows: the clinical purpose of consent is to enlist the patient's faith and confidence in the efficacy of the treatment. This is a major factor in contributing to the success of the treatment and the legal purpose is to provide those treating patients with a defence to a criminal charge of assault or battery, or a civil claim for damages for trespass to the person. Thus the notion of consent to treatment is essentially a very practical issue, and is advantageous to both doctors and patients. (Scheiwe, 2004) For many years the criteria that have been referred to as the test for Gillick competence have provided clinicians with an objective test of competence. This identifies children aged under 16 who have the legal capacity to consent to medical examination and treatment, providing they can demonstrate sufficient maturity and intelligence to understand and appraise the nature and implications of the proposed treatment, including the risks and alternative courses of actions. The ability and competence to make informed and responsible decision is closely linked with the maturity and balance thinking. This ability has been seen to be of varying degree within the same age group of minors. The introduction of "Gillick Test" for competency provides with a tool to clinically assess the readiness of the moor to make responsible and informed decision. To make their opinion even more significant, the Court went on to acknowledge that their ruling related to issues concerning minors is implemented and recognized. A spokeswoman for Children's legal Centre said "this judgment will leave the medical world in chaos. Parliament will have to step back in" This has been a controversial issue for the Courts, Parliament, parents and the medical Association in the light of the right of the minors and their readiness to embrace their responsible role a little too early in life. (Kessel, 1993 ) Work Cited Children Act 1989 s105 (1). (1989) Family Law Reform Act 1969 s8. (1969) Gillick v West Norfolk & Wisbech AHA & DHSS [1983] 3 WLR (QBD). Gillick v West Norfolk & Wisbech AHA & DHSS [1985] 3 WLR (HL). British Medical Association. Medical ethics today. 2nd ed. London: BMJ Publishing Group, 2004: 230-1. (British Medical Association, 2004) Grubb A. Principles of medical law. 2nd ed. Oxford: Oxford University Press, 2004. (Grubb, 2004) Central Office for Research Ethics Committees. www.corec.org.uk Medical Protection Society. 2005. www.medicalprotection.org/medical/united_kingdom/publications/gp_registrar/ (accessed 30 Jan. 2008). (2005) Doyal, L (2002).Good clinical practice and informed consent are inseparable. Heart. Vol.87, 103-105. (Doyal, 2002) Kessel, Ross (1993).In the U.K., Children Can't Just Say No. The Hastings Center Report. Vol.22 No.3, 20-21 . (Kessel, 1993) (2006). Law and Medicl Ethics. Retrieved January 30, 2008, from THE UNIVERSITY of EDINBURGH Web site: http://www.law.ed.ac.uk/distancelearning/ecpd/law-and-medical-ethics/Refusal-of-Medical-Treatment.htm Scheiwe, Kirsten (2004).BETWEEN AUTONOMY AND DEPENDENCY: MINORS' RIGHTS TO DECIDE ON MATTERS OF SEXUALITY, REPRODUCTION, MARRIAGE, AND PARENTHOOD. PROBLEMS AND THE STATE OF DEBATE - AN INTRODUCTION. International Journal of LawPolicy and the Family 2004 18(3):262-282. Vol.18 No.3, 262-282. (Scheiwe, 2004) Q.2} "In addition to an overemphasis upon the Bolam test, in some cases which followed Re F, the interpretation of the "best interests" test was also particularly unfortunate. There was, for example, a tendency to take for granted the fertility of the mentally handicapped woman whose proposed sterilizations were declared lawful." {Jackson 2005 209} Assess critically this statement with reference to cases on the sterilization decisions of incompetent patients. {Maximum 1,000 words} The appropriate standard of care and whether a defendant has met that standard are two of the crucial issues in any medical negligence action. The court has to decide if the defendant has exercised sufficient care. Under the tort of negligence, the test for breach of duty is whether or not the defendant's conduct was reasonable taking all the circumstances into account. Expert medical opinion is obviously important in assisting the courts to decide whether or not the defendant has exercised an appropriate level of skill under the circumstances of the case, but it is the courts and not expert medical opinion that should decide if the defendant has achieved that standard. Negligence was not recognised as a separate tort until 1932. Its development can be traced to the House of Lords ruling in the case of Donoghue v Stevenson. It is as an extension of the principle in Donoghue v Stevenson that healthcare professionals have been deemed to owe a duty of care to their patients. It has been argued that some important points emerge from Donoghue v Stevenson. In order to establish negligence, a plaintiff (the person bringing the action) must prove: The defendant (the person defending the action) owed him a duty of care There was breach of that duty Damage flowing from the breach, which is not too remote, ie causation. Historically, there has been reluctance on the part of the judiciary to find doctors guilty of negligence. This may be because lawyers and doctors belong to two of the oldest professions. Many judges have felt that doctors needed to be protected from the threat of medical negligence. This was illustrated in 1954, in the case of Hatcher v Black, where Lord Denning, a well-known supporter of the medical profession, described negligence as a 'dagger at the doctor's back.' The test which has become the principle by which medical negligence is assessed is known as 'The Bolam' test. Since 1957, the Bolam test has been the benchmark by which professional negligence has been assessed. It is based on the direction to the jury of a high court judge, McNair J, in Bolam v Friern Hospital Management Committee. 'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it another way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.' This statement of law has been subsequently approved by the House of Lords in a number of important test cases as the basis of liability in medical negligence cases: Maynard v West Midlands Regional Health Authority (diagnosis); Whitehouse v Jordan (treatment) and Sidaway v Bethlem Royal Hospital Governors (disclosure of information and consent). The Bolam test has been criticised as a state-of-the-art descriptive test based on what is actually done, whereas in negligence cases generally, the test is a normative test based on what should be done. A decision made by a High Court judge McNair J in 1957 has had a dramatic influence on medical negligence litigation by establishing the Bolam test. Apart from a limited number of cases which have usually been overturned in the appellate courts, this has made it very difficult for plaintiff patients to succeed against defendant doctors. The House of Lords decision in the Bolitho case will strengthen the courts' ability to choose between expert medical witness testimony provided the will is there. The production of clinical guidelines based on research and clinical audit could help the courts decide in the future if expert medical opinion is logical and 'main stream' The rights of the doctors have to be balanced by the rights of the patients, while at the same time keeping the societal interests in perspective. The Bolam test, when properly applied, does balance the rights. It protects doctors who act in accordance with the provisions accepted by their profession; and it allows a patient to sue, when he can show that his doctor had fallen below what the profession considers acceptable. Bolitho can be seen as a narrow exception to the Bolam test - it makes practical common sense because you cannot expect a Court to wholly accept the views of several medical experts to exculpate a doctor if that medical expert evidence is illogical. The House of Lords in Bolitho was careful to say that there is only in rare cases and that it would "very seldom" be right for a judge to reach a conclusion that the views genuinely held by a competent expert are unreasonable. The Marion's case in Australian Court implies the issue related to sterilization in which Marion a 14 year old girl who was mentally handicapped is the centre issue of the case. Her parents, a married couple from the Northern Territory sought an order from the Family Court of Australia authorising them to have Marion undergo a hysterectomy and an ovariectomy - the practical effect would be sterilisation and preventing Marion from being able to have children, and also many of the hormonal effects of adulthood. Under the Family Law Act the primary concern for matters involving children is that the court must act in the child's best interests. The majority of the Court made it clear that this was not a consideration in this case, but that it was merely deciding a point of law and that the decision about "best interests" would be left to the Family Court of Australia after the case. . Work Cited .Donoghue v Stevenson [1932] AC 562. Hatcher v Black. The Times, 2nd July, 1954. Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635. Whitehouse v Jordan [1981] 1 All ER 267. Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643. Hunter v Hanley [1955] SLT 213. Crawford v Charing Cross Hospital The Times, 8th December 1953. Bolitho v City and Hackney Health Authority (1997) 39 BMLR 1; [1998] 1 Lloyds Rep Med 26. Marion's Case , 1992.Autralian Court of law. Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992) Read More