“What matters is that the Doctors should consider whether at the time he had the capacity which was commensurate with the gravity of that decision which he purported to make. The more serious the decision the greater the capacity”
A most adequate example of this can be seen in the case of Re C where an elderly man who was diagnosed as suffering from paranoid schizophrenia succeeded in obtaining an injunction restraining the health authorities from amputating his foot then or any time in the future. Thorpe J found that while Mr C’s general capacity was impaired by schizophrenia, it had not been established that he did not sufficiently understand the nature, purpose and effects of the treatment he wished to refuse. That is to say he had the capacity to understand and retain the information that non-treatment may result in death as well as believe this, and as such his self-determination was respected.
The dividing line between having and not having the capacity to consent can evidently be very thin. Had Mr C above not have believed that he could have died it is highly unlikely he would have succeeded and the operation carried out without his consent regardless. What is clear is that there needs to be a balancing act reflecting the desire to protect persons from potentially harmful decisions, and deeply held beliefs about the inviolability of individual choice. In modern society many may find it reassuring that the balance between the two is weighted in favour of autonomy, as can be seen in Smith v Auckland Hospital Board where T A Greeson J said:
“An individual patient must, in my view, always retain the right to decline operative investigation or treatment however unreasonable or foolish this may appear in the eyes of his medical advisors”
Typifying this opinion is the English case of R v Blau in which the victim of an assault died after refusing a blood transfusion on religious grounds. To many it may seem a foolhardy decision yet it was upheld by the court, reinforcing the individual’s autonomy. However what has yet to be mentioned is that a final requirement for a valid consent is that of freedom from duress, which in relation to religious beliefs can bring about a very different outcome on facts almost identical to those in Blau.
To summarise so far what can be seen is that consent is an important part of medical practice, legitimising actions that may otherwise be deemed criminal, while upholding one of the fundamental principals of medical ethics, that of autonomy. It is evident that consent has many requirements if it is to be deemed valid, Doctors must inform the patients appropriately, who must have the mental capacity to make a reasoned decision on those facts in an environment free from duress, as has been discussed above. Furthermore there appears to be a similarity to the idea of innocent till proven guilty, in that an individual has the capacity to consent till it is otherwise proven. There are situations in which individuals consent is not required for treatment to be carried out, these include life saving procedures where the patient is unconscious, under a statutory power such as the Public Health (control of disease) Act 1984, treatment for mental disorder of a patient liable to be detained in hospital under the Mental Health Act 1983. Provisions such as this are unarguably required, some more than others, for the efficient running of the health service. If every emergency patient brought through the doors of the accident and emergency department had to be identified and have consent obtained from a suitable source it would prove disastrous, no doubt opening up the health service to much criticism. It would be a form of practising defensive medicine, not operating for fear of the repercussions, thus the sacrifice of a certain degree of autonomy is always going to be required.
The important question now is where and how children fit into this? The most useful starting point is to identify who a child is. Under English Law a child or ‘minor’ is a person who has been born but is under the age of eighteen and as such they are still subject to the jurisdiction of the courts. This has however, been mitigated to a certain extent by the Family Law Reform Act 1969, allowing minors who have obtained the age of sixteen to consent to surgical, medical or dental treatment as if they were of full age. But what may seem unjust here is one day an individual is perceived to be incompetent and unable to consent however the very next day, with it being unlikely a change in mental maturity has occurred, they obtain the appropriate age, as such their autonomy is respected. If the law were to maintain this rigidly it would in my opinion be preposterous, placing a blanket age limit on the ability to consent. This has not however been the case and in situations where minors below the age of sixteen have requested treatment against their parents wishes it has on occasions been granted. The leading case in this field is that of Gillick v West Norfolk and Wisbech Health authority in which Mrs Gillick sort a declaration to prevent the health services prescribing contraceptives to minors under the age of sixteen. What the law lords concluded was that there was no fixed age of consent and as such when a child achieved a sufficient understanding and intelligence to enable him or her to understand fully what is proposed and also has sufficient discretion to enable them to make a wise choice in their best interests, a valid consent could be given.
This mirrors quite substantially the approach taken in deciding whether or not those who are no longer minors have the capacity to consent. It relates to understanding and knowledge as opposed to age. While a distinction between adults and extremely young dependants is obviously required a legally effective consent based on competence as opposed to age may help remove some of the unjust inconsistencies for those minors of sufficient maturity. However, what is worth noting is that in most, if not all, these circumstances it is the Doctor who will be assessing a minor’s competence, while they may strive to achieve an impartial view some prejudice may inadvertently exist simply due to them no longer being a minor. The main reason for denying rights to children is the assumption children are foolish, and that respecting their autonomy will sabotage their rights to necessary resources and protection. No matter how hard we try as humans we are always prone to our emotions or instincts, of which “the adult knows best” would to me seem one of the most prevalent.
This development in the law can be seen to be pro children, allowing their autonomy to be respected, but what has been discussed immediately above relates only to their consenting to treatment, in cases of refusal of treatment the outcome appears very different with the courts taking a far more paternalistic approach. In relation to the Family Law Reform Act 1969 it enabled children over sixteen who were competent to consent to medical treatment but as Lord Donaldson held in Re W that did not mean parents lost their rights to consent to medical treatment for their children. By taking a logical step this suggests that should a minor refuse treatment it is still in the parent’s or those in loco parentis’ power to consent on their behalf, providing the health authorities with immunity. What arose form the case of Re W was that a child might satisfy the criteria laid down in Gillick but still lack the necessary capacity an adult would enjoy, to the extent that its decision is not deemed to be in its own best interests. This begs the question of who should decide another person’s best interest, parents, the courts or Doctors and on what basis? Should they base it on their beliefs, the principals of beneficence and non-malfeasance, or do what is best for society as a whole? However if a minor is competent it seems a little unjust not to uphold their autonomy, when a majors would be. If it is mental capacity alone on which the decision of whether or not they have the right to self-determination is based, as it would certainly appear to be, there is nothing to differentiate minors and majors who satisfy the criteria, yet minors can and are treated differently.
One of the starkest examples of this is the case of Re L concerning a 14-year-old girl who belonged to the Jehovah’s Witness faith. She had suffered burns that required plastic surgery however a blood transfusion was necessary to save her life. Accepting the advice of the Doctors that she would die were she not to receive the transfusion she proceeded to refuse the treatment. On the face of it the case is virtually identical to that of Blau with both patients being Jehovah’s Witnesses and refusing treatment on that ground, yet in Re L she was forced to have the transfusion. The reasons for this being that she firstly did not appreciate how distressing her death would be, though this could be attributed to her not being informed by the doctors in relation to this, and secondly her religious beliefs not been formed independently but in line with those of her family.
While this perhaps highlights how such a decision can be unjust, arising from this is the issue of protecting minors. While minors may be able to satisfy the criteria laid down in Gillick we should perhaps not be too hasty in applying it blindly. While minors can and do have characteristics of adults some are nonetheless very impressionable, and can be persuaded to believe and understand something before they have had time to mature and develop their own opinion on the matter. In such circumstances intervention by the law may be seen as just, whether or not it was in the case of Re L may be a matter of opinion for it has been the case when a minor has been treated against their wishes for a number of years until they reached eighteen, at which treatment was withdrawn, and they subsequently died, Re E being one such case. Perhaps it is the fact that we find it hard to accept some would rather die than receive treatment, especially in relation to those who are young and we believe have yet to experience life at it’s fullest, has lead to this paternalistic approach by the courts.
One final distinction that needs to be raised is that of therapeutic and non-therapeutic treatment. While parents or guardians may be best placed in terms of decisions relating to therapeutic treatments, non-therapeutic treatments are of a totally different nature. It is highly likely they are not urgent, as such why not wait till the child is no longer a minor and can decide for themselves, a delayed autonomy as it were. Courts however do not place much weight on the distinction between the two and it would therefore seem parental consent would extend to non-therapeutic treatment. The Gillick decision made it clear though that the purpose of parental rights is to benefit the child, and not further the interests of the parents. But this again comes down to the question of who is to decide what is beneficial for the child? Is it ethical to subject minors to surgery to appease vanity? To make them look like a normal child? While to some extent it will be of benefit to the child it may lead down the slope of Gillick seeks to protect, that of furthering the parents interest.
In conclusion it is clear that there are parallels between adults and minors consenting to treatment. It can be generally summarised by saying that to provide a valid consent the law requires a patient to be appropriately informed, posses a particular mental capacity and be free from duress. These would seem prudent and reasonable steps, safeguarding the health authorities and individuals from consent born out of temporary mental confusion. Not only this but consent can arise from other sources such as necessity in emergencies, aiding the efficient and effective running of the health service. However what the law would appear to lack is the ability to provide for minors to refuse treatment. While certain extra safeguards would need to be implemented to prevent undue influence from family members or any other source, as Sir Stephen Brown suggests in Re L, what would appear to be a total reluctance by the courts to accept minors right to refuse is unjustified. If a minor satisfies the same criteria an adult would be asked to fulfil, why should they be denied the ability of self-determination? One possible answer lies in the fact that when consenting to treatment it acts to support a Doctors opinion i.e. what you are consenting to is best for you. But, when it comes to a minor refusing treatment it is likely to go against the opinion of their elders, and therefore not seen as best for you as you cannot yet decide what is best for you. This seems wholly unacceptable and requires the law to catch up with the ability and potential of minors today. All that is necessary is to develop the concept of sufficient mental capacity to that of refusal to be treated, by perhaps incorporating a requirement to prove they are free from prejudice, not simple but necessary.
Bibliography
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