Chapter 128

More documents

Recommendations

Info

2110 PART 6 ■ Specific Considerations therefore not able to give consent) because of unconsciousness or because they are too young. In such situations, a proxy may give consent. However, proxy consent is legally valid only when the patient gives express authority to another person to give or withhold consent on his or her behalf or when the law invests a person with such power. The commonest example of the latter is that of parent and child. However, when proxy consent of this sort is available, the person vested with that power must use it reasonably. Consent for treatment of a minor can be obtained from one of three authorities: the competent child, the child’s parents or guardians, or the courts. Where medical and parental opinion differ, the doctor administering emergency life-saving treatment without parental consent will traditionally be supported by common law. In all but the most urgent of circumstances, disputes over care should be referred to the courts. 4 Recent statutory reforms in England and Wales (Mental Capacity Act 2005) and in Scotland (Adults with Incapacity (Scotland) Act 2000) have simplified the management of consent issues with respect to incapable adults. 1 No such legislation exists in regard to consent in children and it should therefore be immediately clear that this raises many legal and ethical dilemmas. Age of Competence to Give Consent The first matter to be decided is at what age a child becomes an adult. This age, in most European jurisdictions, is 18 years old. A person older than this age, provided they are not mentally incapacitated, has the right to make decisions regarding their medical treatment and, indeed, may refuse what is offered. Thus, even if the treatment proposed is clearly in that patient’s interests and may even save that patient’s life, the patient has a right to refuse it. Once a child reaches this age, she is given legal rights to make decisions and may give or refuse consent to whatever medical treatment she wishes. This does not mean that a child that has not yet reached this age has no legal or ethical rights. Various legal systems throughout the Western world have embraced the concept of the “mature” or “emancipated” minor, with the consequent legal capacity to consent to medical treatment. That is, beyond a certain age and level of mental maturity, a child is able to make a decision regarding her own treatment. This is in keeping with the UNCRC as described earlier. This asserts a child’s right to have her views accorded due weight in relation to her age and maturity. 5 In the Canadian case of Johnston v. Wellesley Hospital, 6 the plaintiff sued for damages caused to the skin of his cheeks and forehead by the treatment used by the defendant, Wellesley. One of the questions raised was whether a 20-year-old person could consent to treatment when at that time the age of majority in Canada (the magical age described earlier) was 21 years. The judge stated that if a minor was old enough to appreciate fully the nature and consequences of the proposed treatment, then he could give effective consent. In another Canadian case the trial judge took into account the child’s sincerity, maturity, and forthrightness and respected the child’s wishes rather than those of her legal guardians. 7 The consequences of the Johnston decision were far-reaching and it has been directly quoted in a number of cases in other jurisdictions. It had a direct bearing on the widely known English case of Gillick v. West Norfolk Area Health Authority. 8 Before this case, despite the age of majority being 18 years, the Family Law Reform Act, section 8, subsection 1 (1969), had decreed that once a person reached the age of 16 years, he or she could consent to any surgical, medical, or dental treatment. In other words, adult status was reached at 16 for the purpose of medical treatment and it was therefore not necessary to obtain consent from the parent. The Gillick case concerned the validity of consent, without parental knowledge, to contraceptive treatment from a child who was younger than 16. The House of Lords ruled that a child younger than 16 years could give valid consent to medical treatment without parental consent, provided the child, in the opinion of the doctor, was of sufficient maturity and intelligence to understand the implications of the treatment proposed. It would therefore be up to the individual doctor to decide whether a child younger than 16 years of age could give valid consent. The basis on which this decision is to be made is, unfortunately, ill defined. It is unlikely this decision will be challenged if made in good faith. However, should it be challenged, then the normal rules of negligence will apply. So, in the United Kingdom, if a responsible body of medical opinion, which also withstands logical judicial analysis, 9 agreed that the child was competent to give consent, the action against the doctor will fail. Thus, in difficult cases, advice from colleagues should be sought. In certain situations, such as various heart or neurologic operations, it would be highly unlikely that a child could give effective consent. Giesen, an authority on medical malpractice law, believes that when the minor’s own future welfare is at stake and the consequences of the procedure might be serious, traumatic, or irreversible, physicians should generally seek parental cooperation. 10 In principle, however, the age at which a minor is considered competent to give, but not necessarily to withhold, consent varies across Europe from 14 to 18 years of age. The assessment of competence is dependent on the nature of the proposed procedure, the complexity of the decision process, and the gravity of associated implications. Thus, the graver the impact of the decision, the commensurately greater the competence needed to make it. 11 Even if the child is deemed not to be of sufficient maturity to consent, it is important that the child participates in the decisionmaking process. Thus, in Canada, a child over the age of 8 years must discuss the decision regarding treatment, although the final decision is not hers. A similar situation exists in the United Kingdom 12 and almost certainly applies in other countries, at least from an ethical if not legal standpoint. Refusal of Consent by a Minor Autonomy means that a competent adult patient has the right to give or withhold consent to investigation or treatment, irrespective of any untoward consequences. Furthermore, an adult patient is not restricted to accept or refuse what is on offer, but should be allowed to choose the type and scope of treatment and to base this inadequate information about success rates and risks and what impact they may have on daily living. A competent adult is perfectly entitled to reject medical advice. If contemplated by a minor, however, it is understandably much more problematic, especially if the consequences are serious. Following decisions such as Gillick, it would appear logical that a child has every right to refuse treatment, provided she has sufficient maturity and intelligence to understand the implications of refusing the treatment proposed. If one is legally entitled to consent, one must be legally entitled to dissent, 13 a situation analogous to the adult
CHAPTER <strong>128</strong> ■ Consent, Research, and Withdrawing Treatment 2111 situation. Once again, as discussed above, the judgment regarding competence is to be made by the physician, with advice from colleagues in difficult cases. However, it would appear that in many jurisdictions a minor cannot refuse treatment that in the opinion of the medical profession or courts is in her best interests. Several test cases have established this precedent. 14 The English case of Re R 15 concerned a 15-year-old whose disturbed behavior required sedation. However, when lucid and competent, she refused her medication. The judges held that the court could override the refusal of treatment if that was considered to be in her best interests. Further, the judges suggested that the parental right to give consent in the face of the child’s refusal was retained. This was further considered in the case of Re W. 16 This concerned a 16-year-old suffering from anorexia nervosa who was refusing all treatment. Lord Donaldson stated: “No minor of whatever age has power by refusing consent to treatment to override a consent to treatment by someone who has parental responsibility for the minor …” Clearly, in both cases, the judges were concerned of the need to protect the medical profession from litigation. However, both cases were unusual in that they dealt with diseases that could impair reasoning. The case of Re M 17 demonstrates the furthest extremes to which these powers have been tested. M, a 1-year-old girl, refused consent for a heart transplant in the face of lifethreatening disease. Justice Johnson emphasized the need to take account of the mature minor’s wishes, but that these wishes were in no way determinative, and held that the proposed treatment was in the minor’s best interest and should proceed. M agreed to comply after this ruling so the final need to enforce treatment was averted, although Justice Johnson still expressed concern at the gravity of his decision. Thus, it would appear that a child is mature enough to make a decision regarding treatment only if her decision agrees with that of the courts and medical profession. This is arguably illogical, and such decisions have been widely criticized. The counter argument is that the potential consequences of refusal of consent (such as immediate harm or limitation of future choices) are not necessarily equal to those of giving consent. The implications of refusal may, therefore, be more serious, and on these grounds refusal of treatment may require a greater understanding and comprehension than does acceptance of medical advice: the two conditions therefore cannot be regarded as being on a par. From an ethical viewpoint, the focus is changing from a doctor’s obligation to disclose information to the quality of the patient’s understanding. Understanding the information provided is a more important element than the mere disclosure of that information. Many conditions, such as illness, can limit a patient’s understanding. Most important from this chapter’s perspective is the fact that immaturity can also limit understanding. In all the above cases, the judges emphasized the importance of respecting the minor’s wishes and of giving them increasing value with increasing maturity. The concept of the mature minor should therefore be breached only in exceptional circumstances. 18 In summary, at least in England, when a child reaches the age of 16, his or her consent will be valid for treatment. This will be overturned if the patient is not competent to consent. Below the age of 16, doctors must assess the particular child‘s capacity to consent in relation to the proposed intervention. This involves the ability to understand that there is a choice and that choices have consequences. There must be a willingness and ability to make a choice. There must be an ability to understand the nature and purpose of the proposed procedure and the available alternatives, including a proper assessment of the risks and side effects 19 inherent in these alternatives. To confuse the issue, the above does not apply to Scotland. In Scotland, if a competent child refuses treatment or investigations, this should be accepted in the same way as an adult refusal. The only reported case is that of a 15-year-old boy with a psychotic illness who refused to remain in hospital for treatment. Despite his mother giving consent, the sheriff ruled that logic demanded that the decision of a competent young person could not be overruled by a parent. 20 Treatment was, however, subsequently enforced under the Mental Health (Scotland) Act of 1984, 20 and as such the sheriff was able to avoid the immediate implications of the decision. The Scottish courts have made no definitive ruling on this matter, and a case falling out with the remit of the Mental Health Act has yet to be tested. It is therefore clear that practitioners should review each case carefully and in cases of doubt seek legal advice. The problem revolves around the evaluation of competence. Unfortunately, there do not appear to be any guidelines on how this can be measured and utilized. It is for the doctor to decide whether a minor is competent or not, and it would appear that if this is challenged, the final arbiter would be whether a responsible body of medical opinion would support the decision. Clearly this is very much a gray area in terms of legal obligations, but it appears that the law is taking a back seat and allowing the medical profession to make these decisions. Such a situation, clearly, may change if a controversial case comes before the courts. Parental Refusal of Consent for Life-Saving Treatments The question of parental refusal of treatment also creates uncertainty, especially because frequently there are religious reasons for this. It is of particular concern to anesthesiologists, because such examples include refusal of blood transfusions by parents who are Jehovah’s Witnesses. It should be remembered that overriding religious convictions is a major step to take in a free society. It also significantly interferes with the principle that parents should have the freedom to choose the religious and social upbringing of their children. 21 However, as mentioned earlier, the person vested with the power of proxy consent must use it reasonably, and in these cases the well-being of the child is paramount. Thus, parental refusal of life-saving treatment is routinely disregarded and the law has virtually always given consent for the transfusion, overriding parental objection. It is suggested that the approval of a court of law should be sought before such an administration. It is also suggested that two doctors of consultant status should make an unambiguous, clear, and signed entry in the clinical record that blood transfusion is essential, or likely to become so, to save life or prevent serious permanent harm. 22 The parents should be given the opportunity to be properly represented and be kept fully informed of the doctor’s intention to apply for a court order. 23 In an emergency, where there is no time to obtain court approval, health professionals should proceed with life-saving treatment under the doctrine of necessity. Despite the assumption that life saving treatment can be administered against the wishes of the parents, several cases have
Page 1: Consent, Research, and Withdrawing
Page 5 and 6: CHAPTER 128 ■ Consent, Research,

Chapter 128

Create successful ePaper yourself

Delete template?

Save as template?