Consultation Paper on Bioethics - Law Reform Commission

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maturity to understand what is involved. The term Gillick-competent is now part of “medico-legal lore”. 64 3.43 The Scottish legislature appears to have taken Gillick into consideration when drafting the Age of Legal Capacity (Scotland) Act 1991. 65 Section 2(4) specifically makes provision for medical treatment for those under the age of 16: “A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment.” (d) The ‘mature minor’: capacity of children under 16 to refuse treatment 3.44 The Age of Legal Capacity (Scotland) Act 1991 also suffers from the same deficiency as section 8 of the English Family Law Reform Act 1969 and section 23(1) of the Non-Fatal Offences Against the Person Act 1997 in that there is no express provision for refusal of treatment. Nor was the issue specifically addressed by the House of Lords in the Gillick decision. 3.45 The problematic question of whether a mature minor could refuse as well as consent to treatment was addressed in the English case of Re R (a minor) (wardship: medical treatment). 66 A local authority began wardship proceedings seeking permission from the court to give a 15 year old girl antipsychotic drugs without her permission. The English Court of Appeal concluded that Gillick had no application in the present case, as it was a wardship case which had to be determined in accordance with the best interests of the ward. Although R was incompetent to make the relevant medical decision because of her fluctuating medical condition, the Court did engage in a discussion of the power of a competent mature minor to refuse treatment. All three judges accepted that the court has the power to override the refusal of a competent child. 67 However, only Lord Donaldson MR commented (albeit obiter) on the issue of conflicting wishes of parents and child. He observed that a Gillick 64 Mason and Laurie Mason and McCall Smith‟s Law and Medical Ethics (7 th ed Oxford University Press 2006) at paragraph 10.27. 65 See Elliston “If You Know What‟s Good for You: Refusal of Consent to Medical Treatment by Children” in McLean (ed) Contemporary Issues in Law, Medicine and Ethics (Dartmouth 1996) 29 at 49-51. 66 [1991] 4 All ER 177. 67 Lord Donaldson MR, Staughton LJ, Farquharson LJ. 84
competent child can consent to treatment, but if the child refuses treatment, consent can be given by someone who has parental rights or responsibilities. 68 3.46 A number of issues were left unresolved by Re R which were at issue before the Court of Appeal in 1992 in Re W (a minor) (medical treatment). 69 W was sixteen years old. Therefore, the Family Law Reform Act 1969 applied in this case, whereas it did not apply in either Gillick or Re R. Thus, the following question had to be addressed: does a minor who has attained the age of 16, but who is still under the age of majority have an absolute right to refuse medical treatment, such that section 8 of the 1969 Act does not apply? 70 In Re W, the Court of Appeal granted an application by a local authority for permission to treat a 16 year old girl suffering from anorexia against her wishes. Balcombe LJ observed that: “Undoubtedly, the philosophy behind section 8 of the 1969 Act, as well as behind the decision of the House of Lords in Gillick‟s case is that, as children approach the age of majority, they are increasingly able to taken their own decisions concerning their medical treatment and an ability to refuse medical treatment…” 71 However, the court noted that although section 8 of the Family Law Reform Act 1969 explicitly referred to the right of a minor who has attained the age of 16 to consent to treatment, it was silent as to whether a right to refuse medical treatment existed. It accepted that a child over the age of 16, as well as a Gillick competent child, has a right to refuse as well as consent to treatment. However, neither section 8 of the 1969 Act nor the common law, as interpreted by Gillick‟s case, conferred an absolute right to refuse treatment on either category of minor. If the court‟s powers were to be meaningful: “…there must come a point at which the court, while not disregarding the child‟s wishes, can override them in the child‟s own best interests, objectively considered. Clearly, such a point will have come if the child is seeking to refuse treatment in circumstances which will in any probability lead to the death of the child or to severe permanent injury.” 72 3.47 Elliston has argued that it is illogical to draw a distinction between the ability to consent to treatment and the ability to refuse treatment. Rather, “the 68 Re R (a minor) (wardship: medical treatment) [1991] 4 All ER 177 at 186. 69 [1992] 4 All ER 627. 70 Kennedy and Grubb Medical Law (3 rd ed Butterworths 2000) at 975. 71 Re W (a minor) (medical treatment) [1992] 4 All ER 627at 643 per Balcombe LJ. 72 Ibid. 85
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BIOETHICS: ADVANCE CARE DIRECTIVES
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LAW REFORM COMMISSION‟S ROLE The
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LAW REFORM RESEARCH STAFF Director
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CONTACT DETAILS Further information
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TABLE OF CONTENTS INTRODUCTION 1 A
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CHAPTER 4 FORMALITIES FOR ADVANCE C
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TABLE OF LEGISLATION Advance Medica
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TABLE OF CASES Airedale NHS Trust v
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Re B (adult: refusal of medical tre
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The Commission therefore confined i
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whether current criminal law on hom
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discussing whether an advance care
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“(a) at a later time and in such
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holiness I will pass my life and pr
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1.14 In other words, the Law Commis
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two Houses of Parliament. Many of t
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Example 4: “I do not wish to rece
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common law and under Articles 2, 3
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patient. 53 It acknowledged that pa
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Therefore, a person can state that
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the doctrine of informed consent be
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Where there is no benefit in restar
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leave the matter to be decided by t
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address the situation or may be so
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is at least in theory no routine as
Page 55 and 56: 2 CHAPTER 2 LEGAL BASIS FOR THE REC
Page 57 and 58: the principle that „the doctor kn
Page 59 and 60: treatment, such as the withdrawal o
Page 61 and 62: “the law on consent to medical tr
Page 63 and 64: C United States of America (1) Re Q
Page 65 and 66: expressed wishes” regarding medic
Page 67 and 68: D The English legal position (1) Th
Page 69 and 70: compliance. Second, legislation cou
Page 71 and 72: ecommendations of the Law Commissio
Page 73 and 74: F Hong Kong 2.37 The Law Reform Com
Page 75 and 76: nutrition and hydration would only
Page 77 and 78: e reflected in the rules or framewo
Page 79 and 80: example, refuse a blood transfusion
Page 81 and 82: 2.54 In North Western Health Board
Page 83 and 84: to the religious convictions of par
Page 85 and 86: As one of Jehovah‟s Witnesses wit
Page 87 and 88: 3 CHAPTER 3 INFORMED DECISION MAKIN
Page 89 and 90: the context allows the patient to v
Page 91 and 92: treatment was not legally binding o
Page 93 and 94: to consult with a healthcare profes
Page 95 and 96: (3) Assessing capacity (a) England
Page 97 and 98: that a person will not be regarded
Page 99 and 100: She held that Ms K‟s clinicians h
Page 101 and 102: Capacity to Make Healthcare Decisio
Page 103: effective as it would be if he were
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Page 110 and 111: 4.03 The decision in W Healthcare N
Page 112 and 113: a clear note of the decision, the t
Page 114 and 115: signed by the maker of the advance
Page 116 and 117: including babies, the elderly and p
Page 118 and 119: “…a health care or long-term ca
Page 120 and 121: E Prescribed form 4.34 In certain j
Page 122 and 123: 4.41 The scope of section 25(2)(c)
Page 124 and 125: These provisions are also considera
Page 126 and 127: she had been sufficiently informed
Page 128 and 129: 4.53 Australian statutes have dealt
Page 130 and 131: settings. The health care provider
Page 132 and 133: 4.64 In early living will statutes
Page 134 and 135: condition in an advance directive p
Page 136 and 137: (3) Intention to revoke 4.76 A numb
Page 138 and 139: unjustifiable gravy train for lawye
Page 140 and 141: 4.87 There are some registries for
Page 142 and 143: “If an act resulting in death is
Page 144 and 145: (a) directly or indirectly applies
Page 146 and 147: not covered under this act. 22 The
Page 148 and 149: the enormous difficulty plaintiffs
Page 150 and 151: “[a] physician who treats a patie
Page 152 and 153: law review article in 1986. Althoug
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ubella, her child was born with a d
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cause of action in light of the ave
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that right. 92 In Educational Compa
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purposes as tort law, may still ser
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the 1987 Act contains a presumption
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The Code of Practice cites a number
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the change in circumstances is such
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(b) the recognised ethical standard
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6 CHAPTER 6 SUMMARY OF PROVISIONAL
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6.19 The Commission provisionally r
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