In Chapter 5 the basic principles of the law as it relates to consent to treatment were examined. This chapter focuses on the treatment of two particular groups of patients, children and the mentally ill. The basis on which treatment may be given and from whom consent to treatment should be obtained is examined in relation to the child patient. Particular difficult treatment issues arise with the child patient, as with the adult counterpart, in the context of treatment refusal. These issues are further complicated in the context of the child patient in a situation in which conflicts arise between child and parent. The second part of the chapter considers legal regulation of treatment of the mentally ill patient in hospital and the community. Here, a statutory regime exists which regulates treatment procedures in the form of the Mental Health Act 1983.
TREATING THE CHILD PATIENT
Where the nurse is treating a child patient s/he must take care to ensure that the appropriate consent has been obtained. Where a child is very young, consent must be obtained from the person with ‘parental responsibility’. This may be the child’s mother, married father and unmarried father (s2 and s4 Children Act 1989) (with agreement with the mother or where a court order has been made giving him that power), a person holding a residence order (s12) or a local authority (s33). But there may be situations in which there is not sufficient time to consult a person with parental responsibility. For example, a child on her way to school is injured by a hit and run driver. She is taken to hospital bleeding profusely, in a critical condition. In an emergency, such treatment may be given as is immediately necessary, without parental consent being obtained. In addition, a child minder or a teacher has the right to do what is ‘reasonable in all the circumstances’ of the case for the purpose of safeguarding or promoting the child’s welfare. This would include authorising medical treatment (s3 (5) Children Act 1989). The Family Law Reform Act 1969 gives children who are 16 years and over the right to give consent themselves to surgical, medical or dental treatment (s8 Family Law Reform Act 1969).
Many uncertainties remain, however, as to what exactly constitutes ‘treatment’ for these purposes. It is obvious that the plaster on the wound, the surgery on the car accident victim are covered. What is less clear is the extent to which procedures ancillary to treatment are lawful. A difficult issue concerns the use of constraints upon young children, e.g. holding down a child to give treatment. It is submitted that wherever possible treatment should be given with the cooperation of the child and that the use of compulsion should be contemplated only in highly exceptional circumstances. Generally the performance of non-therapeutic procedures on a child creates difficulties because often they cannot be said to be in the child’s best interests. One approach is to say that certain procedures are justifiable as long as they are not against the child’s best interests (S v. McC, W v. W [1972] AC 24). Whether parents can consent to involvement in certain non-therapeutic procedures such as organ donation or involvement in clinical research are discussed further in later chapters.
The parental power of consent does not cover whatever treatment they believe to be in the child’s best interests. Any treatment given is ultimately dependent upon the health professional’s assessment of whether that treatment is appropriate for the child. Second, certain procedures are unlawful per se. For example, a mother cannot consent to her daughter being circumcised, because this practice was made illegal by the Prohibition of Female Circumcision Act 1985.
When is the child competent to consent to medical treatment?
A young girl approaches a school nurse and wants advice because she intends obtaining the contraceptive pill. What is the legal position? Can such a girl be given such medication without parental consent?
• the doctor is satisfied that the girl would understand his advice
• he has been unable to persuade her to tell her parents or to let him tell her parents
• the girl is likely to begin having intercourse with/without contraceptive treatment
• without contraceptive advice/treatment her physical or mental health could suffer
• it would be in the girl’s best interests to receive contraceptive assistance without her parent’s consent.
“as a matter of law the parental right to determine whether or not a minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. (p. 423)
After the Gillick decision it is clear that a child under 16 years may consent to medical treatment if s/he is judged to be competent to give that consent. The difficulty with the test laid down in Gillick is that it means that a nurse treating a child patient has the task of assessing whether this particular child is competent to consent to this particular treatment. A child may have sufficient maturity to consent to one type of treatment, such as treatment for cuts and bruises, while at the same time not being competent to decide about another type of treatment, such as an operation. It must be emphasised that, even if a child is under 16 years, good practice would dictate that, wherever possible, an effort should be made to involve the child in any decisions regarding care and treatment.
The Gillick decision was confirmed recently in the Axon case (discussed further in Ch. 8).
Court orders
The vast majority of treatment decisions are straightforward and will present no legal difficulties as long as the nurse complies with the general legal principles in relation to disclosure of information set out in the previous chapter, and if s/he obtains consent from the appropriate person. There are, however, some situations in which difficult dilemmas arise. The health-care professionals may be uncertain as to what action to take. There are three main routes through which an application may be made to the court. The case may be referred under what is known as the court’s ‘inherent jurisdiction’; the court has a power to make orders regarding medical treatment. The child may be made a ward of court. This power was limited by the Children Act 1989 and today a local authority cannot apply for wardship, although other interested bodies such as a health authority may do so. In addition, wardship cannot be sought if the child is in local authority care. The third option is to ask the court to make one of two orders created by the Children Act 1989. The first of these is a ‘prohibited steps’ order; this has the effect of stopping a parent exercising his/her parental responsibility without the consent of the court. Second, an application could be made for a ‘specific issue order’. This involves asking the court to give directions on a specific question before it, for example, giving consent to treatment (s8). In making an order the court considers whether the child’s welfare dictates that the treatment be undertaken. The importance of making an application to the court where there is a dispute with the parents as to what treatment should be undertaken is considered in the next section.
Refusal of treatment by those with parental responsibility
What if a course of treatment is proposed for a critically ill child but the parents refuse to give their consent? Can treatment be given? The parents may be refusing treatment for a particular reason, such as their own ethical or religious beliefs. In such circumstances health-care professionals should hesitate before treating. The impact upon the child, were treatment to be authorised in the face of parental opposition, requires some consideration. Were treatment to be given in such a situation, this might have the effect that the child is alienated from his/her own family. The action taken is likely to relate to the urgency with which treatment is required. If a child is literally bleeding to death then, it is suggested, it is justifiable to treat, even in the face of parental opposition.
But if, while a child’s life is in grave danger, death is not imminent, then the matter may be referred to the court by the hospital or by the local authority under the court’s inherent jurisdiction, or through a specific issue order asking for clarification of their legal position in undertaking treatment.
Such an issue came before the courts in the case of Re S (a minor) ([1993] 1 FLR 376). A 4½-year-old child was suffering from T-cell leukaemia with a high risk that death would occur. Chemotherapy was offered but this required a blood transfusion. S’s parents, who were dedicated Jehovah’s Witnesses, refused to consent to the treatment. The local authority went to court and asked for an order under its inherent jurisdiction and the parents asked for a prohibited steps order. In authorising treatment, Thorpe J. noted that the parents’ refusal of treatment would deny their son the 50% chance of survival that was offered by the therapy. It had been suggested that one reason why treatment should not be given was that the child would have to live for years to come with parents who ‘believed that his life was prolonged through an ungodly act’. Thorpe J. recognised that by providing the child with a transfusion there was a further risk of conflict between child and parent. However, as the judge said: ‘The reality seems to me that family reactions will recognise that the responsibility of consent was taken from them, and as a judicial act, absolved their conscience of responsibility.’
In the case of Re O (a minor) (Medical Treatment) ([1993] 2 FLR 149), a baby was born prematurely. The child suffered from a respiratory distress syndrome, which meant that she would require a blood transfusion. The parents were Jehovah’s Witnesses and were opposed to the transfusion. Other options were tried but it was realised that a blood transfusion was inevitable. The inherent jurisdiction of the High Court was invoked. Johnson J. gave directions to the effect that if medical advice deemed it necessary the child should be given a blood transfusion.
A contrasting case provides an illustration of judicial willingness to support a parent’s decision to refuse treatment. In Re T ([1997] 1WLR 242), a child was born with a liver defect that was life-threatening. An operation had initially been carried out on the child at the age of 3½ months that had been unsuccessful and had resulted in the child suffering a great deal of pain. The child then needed a liver transplant. At the time of the hearing both child and parents were in a foreign country. The parents, who were health-care professionals, were opposed to the treatment being undertaken. The mother did not want the child to undergo the suffering that this procedure would involve. The operation was not available in the Commonwealth country where the treatment was being given and, had an order been made, the parents would have had to bring the child back to this country for treatment.
At first instance, the judge held that leave should be given to the health professionals to perform the operation despite parental opposition. In the Court of Appeal this order was reversed. Butler Sloss L.J. examined a number of cases involving the decision to treat the incompetent minor. She noted the exceptional nature of this case and stated that:
The decision of the Court of Appeal in Re T has proved controversial. The court placed great weight on the views of the parents. This case may appear to run contrary to a number of cases concerning refusal of treatment by parents on religious grounds, where the views of the parents have been overridden by the courts. Emphasis was placed upon the fact that the parents were health professionals. Does this place the opinions of such parents in a special category apart from those of parents generally – even where the parents possess deep religious convictions? While the decision of the Court of Appeal in Re T has attracted considerable public attention its wider implications remain to be assessed. In Re T the court stressed the unusual nature of this case and the close emotional attachment that existed between the mother and baby. It may be speculated as to whether the location of the parties may have had some influence on the ultimate decision reached, as the parents were abroad at the time. There are a number of cases in which the court has granted orders allowing active treatment to be withheld from newly born infants and these cases are explored in Chapter 12 below.
“This mother and child are one for the purpose of this unusual case and the decision of the court to consent to the operation jointly affects the mother and son and it also affects the father. The welfare of this child depends upon his mother.
An illustration of some of the difficult issues which may arise in the con-text of parental treatment refusal was provided by the case of. Re C (HIV Test) ([1999] 2 FLR 1004). Here the parents of a 4-month-old baby refused to have the child tested for HIV. The mother was HIV-positive, although the father had tested negative. The parents were opposed to the testing. They said that the child was healthy and they wanted to they decide what was in her best interests.. They were both alternative health practitioners and were sceptical regarding conventional medical treatment. The mother was breast-feeding the baby. The judge held that he was prepared to sanction the test and that here there was an ‘overwhelming case’ for the baby to be tested. The order applied only to testing and the local authority would be required to return for a further order in relation to treatment. The Council had not sought an order preventing the mother from breast-feeding. Mr Justice Wilson was of the view that had such an order been sought it would have been unenforceable. As he stated: ‘My belief is that the law cannot come between the baby and the breast’. The parents sought leave to appeal but their application was dismissed. They had argued that the judge should have evaluated why they were critical of the use of orthodox clinical approaches to HIV, that parents in a developing area of medicine such as this should be given certain clinical autonomy and that the court should not intervene with this. The Court of Appeal rejected the appeal. They held that there was strong medical evidence that the child was at risk of harm unless the test was undertaken. Moreover the court could overrule the decision of a parent even though this decision might be reasonable.
Article 8 of the European Convention of Human Rights, which concerns the right to privacy of home and family life and includes a right to autonomy, may be used in such cases under the Human Rights Act 1998. The extent to which this provision will be successfully used to alter the judicial approach in cases such as Re C (HIV Test) has been questioned. (Grubb 2000). Grubb has suggested that ‘it would, however, require a substantial “U-turn” in judicial behaviour and inclination and would contradict the philosophy of the Children Act which sees the child’s welfare as paramount’ (s.1(1)). It is submitted that this is the better view and that, unless there is a radical reconception of the role of parent’s rights in treatment decision making, successful use of Article 8 is somewhat unlikely.
Parental conflict and the conjoined twins case
A notable case concerning the issue of parental decision making and children is that of Re A in 2000 4 All ER 961. Here conjoined twins were born in St Mary’s Hospital Manchester to parents who came from the island of Gozo, Malta. The surgeons sought to separate the twins. The consequence of the separation operation was that the weaker twin, ‘Mary’, would die but it would be likely that the stronger twin, ‘Jodie’, would survive and have a good quality of life. The parents, who were devout Roman Catholics, were opposed to the surgery going ahead. Ultimately the Court of Appeal sanctioned the surgery. The judgments are complex to interpret as different approaches were taken by different members of the Court of Appeal. The case was determined by reference to principles of family law, health-care law and criminal law.
The Court of Appeal considered whether the operation could be seen as being in the best interests of Mary, the weaker twin. Two members of the Court of Appeal were of the view that separation would not be in Mary’s best interests, although one member, Robert Walker L.J., supported the view that the operation would be in her best interests because to continue her life for ‘a few months’ would not be to confer any advantage. One difficulty facing them was that the result of ordering the surgery would be for Mary to die – would that then contravene criminal law? The Court of Appeal held that the operation to separate the twins could not be classed withdrawal of treatment amounting to an omission – the approach that had been taken by the House of Lords in the Bland case (discussed in Ch. 10). This meant that the surgery would constitute murder unless there was some defence. Brooke L.J. held that the surgery was supported under the doctrine of necessity; Walker L.J. agreed but also suggested that it could be supported under the doctrine of double effect. Ward L.J. rather saw this in terms of ‘quasi’ self-defence. He commented that there was:
Although this case is obviously an emotive one, and one that at the time gave rise to considerable discussion both in the media and in the academic literature, it is suggested that in the future the impact of this decision is likely to be limited, because of the exceptional nature of the facts in this case, to further cases concerning separation of conjoined twins.
“no difference in essence between that resort to legitimate self-defence and the doctors coming to Jodie’s defence and removing the threat of fatal harm to her presented by Mary’s draining her life blood.
Compelling treatment
What if the parents and the health-care professionals disagree as to a particular course of treatment in a situation in which the parents want the treat-ment carried out but the professionals are opposed? This issue has arisen in relation to end-of-life decision making and is discussed more extensively in Chapter 10. However here we should note the case of Glass v. UK [2004] 1 FLR 1019. This case arose as a result of a dispute of treatment of a child who, at the time of the incidents that led to the litigation, was 12 years old. Following a respiratory tract infection David Glass, who has severe dis-abilities, was being treated in hospital. The doctors treating him were of the view that further treatment was hopeless, issued a Do Not Resuscitate order without informing his mother and sought to administer diamorphine without parental consent. This led to violent incidents in the hospital that led subsequently to litigation. The Trust informed the parents that they would not further pursue life-sustaining treatment and advised them to seek treatment in another local hospital. This led to litigation in the English courts where the family were not successful (see discussion in Chapter 10); however, their action before the European Court of Human Rights (ECHR) succeeded. The ECHR held that treatment here in the face of parental opposition without having obtained judicial sanction constituted a violation of Article 8 of the European Convention on Human Rights. It is interesting to note that in 2004, the year of the ECHR judgment, David Glass turned 18. Thus, if there is a dispute between parents and medical staff as to the legitimacy of a particular course of treatment which has life-threatening consequences, and it is proposed to treat or not continue to treat in the face of parental opposition, then a court order should be sought. In practice, application can be made very swiftly to a judge sitting in chambers.
Disagreement between the parents
Tom wants his 18-month-old son Jack to be given the MMR injection; his wife Lisa refuses. She says that she is frightened of the risk of autism. Can Tom compel Jack to have the injection?
In contrast, in Re J ([2000] FLR 571), the father, who was a Muslim, wanted his 5-year-old son circumcised, while the mother, who was a Christian, was opposed. The father did not actively observe many of the religious practices of his faith and the mother was a non-practising Christian. Here the Court of Appeal refused to order the surgery. In delivering judgment the President, Dame Elizabeth Butler–Sloss, held that there were a number of decisions that, where there are two persons with parental responsibility, should not be arranged by a one-parent carer. She gave as an example sterilisation and stated that the decision to circumcise a child on religious grounds also came within this category. Again, should a dispute arise in such a situation the matter should be referred to the court for resolution prior to the treatment going ahead.
When can treatment be given in the face of a child’s refusal?
Parents bring their son to be vaccinated. The boy goes into the treatment room but then begins to scream and refuses to let the nurse touch him. Can he be compelled to have the injection?
The Court of Appeal has indicated that, if a competent child refuses treatment, his/her parents may override this refusal. In Re R ([1991] 4 All ER 177 CA) Lord Donaldson said that the fact that a child was competent to consent to treatment did not mean that all parental rights were removed. Once a child reaches maturity s/he receives a key to the door of treatment. However, the child’s parents have keys and they keep the key once the child gains maturity. A parent can authorise treatment even though the child refuses. Lord Donaldson’s words in that case were obiter and the other members of the Court of Appeal did not agree with his approach.
In Re W Nolan L.J. suggested that the court could intervene where the child’s welfare was ‘threatened by serious and imminent risk that the child will suffer grave and irreversible mental or physical harm’, while Balcombe L.J. stated that the court should only intervene where refusal would lead to the child’s death.
Children were given certain statutory rights to refuse court-ordered assessment and treatment under the Children Act 1989. This may seem rather at odds with the approach of the courts in Re R and Re W. However, in the case of South Glamorgan CC v. W and B ([1993] 1 FLR 574) the court confirmed that a court still possessed certain residual powers under its inherent jurisdiction to override a child’s refusal. The decision in this case has been criticised on the basis that it goes against clear words of statute.
Authorisation of treatment in the face of a child’s opposition may also give rise to problems as to the relationship between the powers to compulsorily treat under the Mental Health Act 1983 (which will be considered later) and the powers at common law. In Re K, W and H (minors) (Medical Treatment) ([1993] FLR 584), advance parental consent was required before children were admitted for treatment in a specialist psychiatric institution. Three children were admitted. They later complained as to their treatment, including the administration of emergency medication. An action was brought before the court under section 8 of the Children Act 1989 to clarify the legality of the treatment of these three children. Two were 15 years old and were suffering from unsocialised adolescent conduct disorder; the other child, who was almost 15 years, was suffering from bipolar affective disorder. Thorpe J. said that none of the children was Gillick-competent but that, even if they were, the doctor had received parental authorisation of treatment in the form of the advance consents before they had entered the psychiatric institution and thus was justified in law in going ahead and providing treatment. He commented that a specific issue order to authorise treatment under section 8 of the Children Act 1989 was not required where parental consent existed. The difficulty with such an approach is that it denies children the safeguards in the form of the statutory provisions limiting provision of treatment contained in the Mental Health Act 1983 (Bate 1994).
Stay updated, free articles. Join our Telegram channel
Full access? Get Clinical Tree
