Chapter 128

2112 PART 6 ■ Specific Considerations
also established the precedent that, in some situations, parents can
legally refuse consent to treatment of their child. In one case, a
mother refused chemotherapy for her 3-year-old child who was
suffering from cancer. The hospital took the mother to court. The
court upheld the mother’s decision, because the judges felt there
was only a small chance of recovery and also because of the severe
side effects that would result from chemotherapy. 24 Thus, it is
impossible to set hard and fast rules. Each case should be analyzed
on its own merits. What is clear is that if treatment is immediately
necessary to preserve life, doctors should proceed with treatment.
If treatment is not immediately required, then referral to a court
of law should be undertaken. Doctors can only act in defiance of
parental views in the emergency situation.
Nontherapeutic Circumcision
An issue directly applicable to anesthesiologists is that of nontherapeutic
circumcision. Female circumcision, which involves
suffering, mutilation, and serious health risks, is illegal under U.K.
law 25 and will not be discussed further. The issues surrounding
male circumcision, on the other hand, are less clear and require
further analysis. In children, this virtually always relies on parental
consent and is usually carried out for ritual, social, or cultural
reasons. Brazier has commented that male circumcision is a matter
of medical debate and for Jewish and Muslim parents it is an article
of faith. She argues that the child suffers momentary pain and,
although medical opinion may not necessarily regard circumcision
as positively beneficial, it is in no way medically harmful if
properly performed. The community as a whole, she claims,
regards it as a decision for the infant’s parents. 26
These arguments can be challenged. Firstly, there is extensive
literature on the harms of circumcision. 27,28 It is also not clear from
her argument how the operation can be justified legally and
ethically. If the principal starting points are that everyone has a
right to bodily integrity and that proxy consent has to be used
reasonably and in the interests of the child, then it is possible that
the procedure cannot be justified. It is also self-evident that any
future choice is limited once the procedure is undertaken.
The ethical justification for circumcision is that it is in the
child’s best interests because it facilitates social acceptance rather
than exclusion and enhances cultural identity and belonging. The
degree of social acceptance or exclusion inferred is variable, and
this should be considered when weighing up what is in the boy’s
best interest: the child in an orthodox Jewish or Muslim culture
has a very different perspective from one whose parents wish him
to be circumcised simply to be like his father. Parental preference
alone would not pass the “best interests” test. On a practical level,
there is an argument that denying access to medical circumcision
will result in greater harm by encouraging illegal circumcision in
an unhygienic environment by unskilled practitioners. This is a
weak argument, however, as it can also be used to justify very
harmful practices, such as female genital mutilation and ritual
sacrifice, which should be prevented by law rather than by the
permission of a lesser evil.
As previously argued, it is clear that parental rights are derived
from parental duty and exist only so long as they are needed for
the protection of the person and property of the child. Giving
consent to medical treatment of a child is a clear example of
parental responsibility arising from the duty to protect the child. 29
The rights reside in the child with the parents acting as agents for
the child to enforce those rights. 30 Even the argument utilized later
in nontherapeutic research, that it may be acceptable as long as it
is not against the interests of the child, fails because of the potential
harms caused.
In Australia, the Queensland Law Reform Commission stated:
“Unless there are immediate health benefits to a particular child
from circumcision, it is unlikely that the procedure itself could be
considered therapeutic … The circumcision is invasive, irreversible
and major. It involves the removal of an otherwise healthy organ
part. It has serious attendant risks … On a strict interpretation of
the assault provisions of the Queensland Criminal Code, routine
circumcision of a male infant could be regarded as a criminal act.
Further, consent by parents to the procedure being performed may
be invalid in the light of the common law’s restrictions on the ability
of parents to consent to the non-therapeutic treatment of children.”
In the United Kingdom, male nontherapeutic circumcision is
generally assumed to be lawful provided it is performed
competently, there is valid consent, and it is believed to be in the
child’s best interests. Judicial review has shown that this is “an
exercise of joint parental responsibility” and as such both parents
must give consent. 31,32 The term “best interest” encompasses
medical, emotional, and all other welfare issues, and it should be
noted that, at least for incapable adults, it is for a judge, not the
doctor, to finally determine what is in the best interests of the
person concerned. 33
The legal standing on nontherapeutic circumcision may be
affected by the Human Rights Act, which, in 2000, incorporated
Articles of the European Convention on Human Rights 34 into U.K.
Law. Rights that may be relevant are:
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Article 3: “No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Article 5(1): “Everyone has the right to liberty and security of
the person.”
Article 8: “Everyone has the right to respect for his private and
family life” except for the “protection of health or morals, or for
the protection of the rights and freedoms of others.”
Article 9(1): “Everyone has the right to freedom of thought, conscience
and religion.”
Article 9(2): “Freedom to manifest one’s religion or beliefs shall
be subject only to such limitations as are prescribed by law and
are necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or for
the protection of the rights and freedoms of others.”
As yet, the full impact of the Human Rights Act on medical
decision-making is still to be determined. If medical evidence were
conclusive in showing that circumcision is prejudicial to a child’s
health or welfare then it is likely a legal challenge on human rights
grounds would be successful, and indeed that there may be obligations
on the state to proscribe it. 35 As always, legal advice should
be sought if there is any doubt over the legality of proceeding with
treatment.
Finally, those in favor of continuing with this practice need to
answer one further question; why can’t the procedure wait until
the child is old enough to make his own decision?
Parental Presence in the Anesthetic
and Resuscitation Rooms
The issue of parental presence in the anesthetic room and
resuscitation room has also been raised recently. Some argue that