Minors And Consent To Treatment Selected Issues Law Medical Essay

Published Date: 02 Nov 2017

INTRODUCTION

English law contains a rebuttable presumption that parents act in the best interests of their children. When it comes to making medical decisions for their sick child, it has been accepted that parents know best since they are emotionally connected with their child.

However, cases have revealed that parental decision-making over their sick children has been declining. The onus in determining the best medical interests of a child could shift to the child’s doctor. Ultimately, in proceeding to administer treatment or in making a decision to refuse to treat, a doctor must act with consent of the patient or in the case of a child, his parents or the court. To borrow the words of Lord Woolfe in his inaugural lecture in the new Provost Series, delivered in London in 2001, the phrase ‘doctors know best’ should now be followed by the qualifying words ‘if he acts reasonably and logically and gets his facts right’.

The most difficult cases arise when parents and doctors disagree about what amounts to ‘best interests’ of the child. When this happens, the courts will step in and act as the ultimate arbiter in determining the ‘best interests’ of the child. It will be seen from this paper that courts have taken on the role as proxy decision- makers on behalf of a sick child.

Holman J had in the case An NHS Trust v B [1] , stated:

"…. this is a very fact specific decision taken in the actual circumstances as they are for this child and today.

Others may analyse this judgment for its ‘implications’. It is not a policy-based judgment at all and is not designed to have ‘implications’ …. My sole and intense focus has been on this child alone ….."

THE ENGLISH POSITION

The Family Law Reform Act 1969 reduces the age of majority from 21 to 18. Any persons below the age of 18 would therefore be recognized as a child under the law.

Section 3(1) Children Act 1989 defines ‘parental responsibility’ as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’. Since parents are empowered by law by this wide and all-encompassing provision, their decisions made in respect of their children must accordingly be respected.

CHILDREN - WHO DECIDES?

The most difficult cases arise when parents’ religious views prohibits the administration of treatment to a sick child which may save the child’s life. This may give rise to a tug of war between the views of the parents and the doctors. Article 8 read together with Article 9 of the European Convention on Human Rights ("ECHR") which was incorporated in England by way of the Human Rights Act 1998 accords respect to family life and would include the right of a parent to determine the religious affiliation of his child. Doctors and indeed, the courts, have not always been comfortable with this interpretation of rights and will intervene when they are of the view that the imposition of such rights on the child will conflict with the child’s best interests.

The fundamental principle governing withholding life- saving treatment from young children was settled in Re B [2] in 1981. The parents of Alexandra, an infant girl born with Down’s syndrome refused to consent to surgery for an intestinal obstruction. Her parents argued that God or nature had given their child a way out. However, the Court of Appeal allowed the doctors to proceed with the operation as it was in the child’s best interest. Lord Templeman LJ said:

…….. it devolves on this court in this particular instance to decide whether the life of this child is demonstrably going to be so awful that in effect the child must be condemned to die, or whether the life of this child is still so imponderable that it would be wrong for her to be condemned to die. There may be cases, I know not, of severe proved damage where the future is so certain and where the life of the child is so bound to be full of pain and suffering that the court might be driven to a different conclusion but in the present case the choice which lies before the court is this: whether to allow an operation to take place which may result in the child living for 20 or 30 years as a mongoloid (sic) or whether (and I think brutally must be the result) to terminate the life of a mongoloid child because she has an intestinal complaint. Faced with that choice I have no doubt that it is the duty of this court to decide that the child must live".

In the case of the conjoined twins from Manchester [3] , Jodie and Mary, the devout Roman Catholic parents of the twins believed that separating the twins would be a sin and against the will of God. The Court of Appeal held that it would be in both the twins’ best interest that the surgery be performed.

Margaret Brazier said that there are 2 factors which play a vital role in the decision as to whether to treat an acutely ill child; first, what do her parents desire and second, what is the practice of the medical profession in the management of her kind of illness and disability? According to Brazier, the answer to the second question is that, in many instances doctors will explain the treatment available, give a prognosis as to the child’s future and accept the decision taken by the parents [4] .

In Gillick v West Norfolk and Wisbech Area Health Authority [5] , Lord Scarman recognized the ability of the law to transfer the autonomy of an incompetent child to that of his parents:-

"It is abundantly plain that the law recognizes that there is a right and a duty of parents to determine whether or not to seek medical advice in respect of their child, and, having received advice, to give or withhold consent to medical treatment" [emphasis added]

It is submitted the above could be a situation where parents had actually accepted the doctor’s views and either consented or refused to consent to it. Eventually, when there is a conflict of views, the court will be the one which ultimately decides what’s best for the child.

It is submitted that the first factor Brazier writes about could just a way of comforting the parents of the sick child. It can be clearly seen from the case of Re B that where the views of the parents conflict with medical views, the courts would ultimately be called upon to make a decision based on the child’s best interests.

‘BEST INTERESTS’ – A BALANCING EXERCISE

In Re C [6] baby C was made a ward of court after her parents expressed inability to care for their severely ill infant who appeared to be blind and virtually deaf and her brain was poorly formed. Medical opinion was that she would inevitably die in a matter of months. The issues put before the court were these [7] . If it became impossible to go on feeding her by syringe, must she be fed naso-gastrically or intravenously? If she developed an infection, must she be treated by antibiotics?

Her doctors sought an order to refuse treatment to baby C should the above situations arise. The Court made an order that leave be given to ‘treat the ward to die. This phrase caused a public outcry and the media interpreted it as a sanction for active euthanasia. The Court of Appeal affirmed the judgment but deleted that phrase and ordered that:-

"The hospital authority be at liberty to treat the minor to allow her life to come to an end peacefully and with dignity…"

The Court acknowledged the principle of quality of life; that if she was resuscitated to continue living, her quality of life would be compromised and she will not be able to enjoy the kind of life other children her age were capable of enjoying.

It is submitted that the Court seems to be usurping the role of parents, who by law are the child’s proxy decision-makers. Instead of playing the role of a neutral arbiter, the role of the Court has now been widened to decide if a child can or cannot enjoy a certain quality of life.

Re J [8] was a case where the baby was born severely brain damaged and suffered near death experiences several times. Both the parents and the doctors were in agreement that J ought not to be resuscitated if he suffers and infection. In order to ensure that neither the parents nor his doctors risk prosecution, an application was made to the court that any decision to withhold treatment was lawful.

It is submitted that the Court attempted to place heavier emphasis on baby J’s quality of life over the sanctity of life. The Court’s decision therefore sets an unhealthy precedent on how the Court’s view those born with abnormalities such as baby J’s. It seems that the emotional happiness of the child was blatantly disregarded.

What happens when parents views conflict with doctors medical opinion about what constitutes best interests of the child? In Re Wyatt [9] Charlotte Wyatt was born with severe brain damage, respiratory difficulties and poor kidney function. Unanimous medical evidence held that continued intervention was futile whilst her parents on the other hand were ‘hoping for a miracle’ [10] . Hedley J stated:-

"In reaching that view I have of course been informed by the medical evidence as to the prospects and costs to her of aggressive treatment. I hope, however, that I have looked much wider than that and seen not just a physical being but a body, mind and spirit expressed in a human personality of unique worth who is profoundly precious to her parents. It is for the personality of unique worth that I have striven to discern her best interests. It is my one regret that my search has led to a different answer than sought by these parents." [emphasis added]

The Court’s decision reflects the paternalistic approach adopted by the Courts in being the final arbiter of determining the fate of a child after a consideration of the medical evidence and the ‘assumed’ view of the child. In this case, it can be said that though her parents’ desires were considered, the Court’s ultimate decision was based on the views of the doctors. It was indeed a decision where the ‘doctors know best’.

In most instances of conflicting views, it is submitted that the courts usually defer to the views of the sick child’s doctors. However in Re T [11] the Court of Appeal ruled that the parental views should prevail and they were therefore entitled to withhold life-saving treatment from their child. Interestingly, it must be noted that baby T’s parents were both health professionals who were of the view that the proposed transplant operation would not be in their son’s best interest.

What happens if there is an emergency and doctors have to proceed without parental consent or authority from the court? The decision the European Court of Human Rights in Glass v United Kingdom [12] issues a warning to doctors not to stretch the definition of emergency, and places a strong emphasis on a presumption of the parents’ right to make decisions about treatment of their young children [13] .

In Glass, the European Court of Human Rights allowed David Glass’ mothers views to prevail over that of his doctors. The doctors were of the view that David should not be resuscitated if he stopped breathing and that he should be administered diamorphine to relieve any distress. The mother strongly opposed to the doctor’s proposed actions. On one occasion David was successfully resuscitated by his mother herself. Eventually there was animosity between the doctors and David’s family. David’s mother took the case to the European Court of Human Rights. The European Court of Human Rights allowed the mother’s appeal stating that the administering of diamorphine to David against the wishes of his mother violated Article 8 of the ECHR.

In Glass (supra) the doctors were of the view that the child should not continue to receive treatment. It is submitted that the proposed course of ‘treating’ David Glass to diamorphine to relieve him from distress could be viewed as a means of euthanasia which the courts were weary of sanctioning especially in the light of objections from the child’s parents.

THE MALAYSIAN POSITION

We have discussed above how the Courts interpret and apply the ‘best interest’ test to determine the best possible treatment for a child. As was observed in the myriad of cases in England, the term ‘best interest’ is one which is difficult to define. In Malaysia medical law is not as developed as its English counterpart.

In Malaysia there are no decided cases on ‘best interests’. What then would be the position if a situation arises here. It is submitted that the doctor will render medical advise and it is up to the parents whether they choose to follow it or not. If they decide to follow the medical advise, then they will be asked to sign a consent form. If they do not consent to the treatment, the doctors cannot go against the parents’ wishes. The doctor may have to apply to court for a sanction/ruling.

How then will the court decide? Dr. Puteri Nemie Kassim had, in her article [14] , opined that the common law cases have been instrumental in many ‘consent to medical treatment’ cases in Malaysia. It is submitted that in Malaysia since the courts have no statues to rely on, therefore they may rely on common law principles by way of Section 3 of the Civil Law Act 1956 ("CLA").

Section 3 of CLA 1956 provides:

Application of U.K. common law, rules of equity and certain statutes

3. (1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall—

(a) in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956;

Therefore it is submitted that if the case is pre 1956, there is no problem. The Malaysian Courts may rely on them. For cases post 1956, it is only a persuasive.

However, if the new case relied on a pre 1956 case and pre 1956 cases principles, then the Malaysian Courts may adopt it using section 3 CLA. Otherwise, they can still favour to follow it as a persuasive authority. It is submitted that it is persuasive because the English cases are premised on reasons. The rationale for these decisions is the "best interests of child’ in accordance with medical advise. We can therefore safely conclude that the English Courts decide by using the doctor’s advise as a basis even if their view is contrary to parents’ views/beliefs.

If parents want treatment or a specific treatment and doctors refuse or suggest another treatment/mode, the Court will decide based on medical evidences in the best interests of the child and which treatment will suit the child better.

It is submitted that when deciding on such issues, the English Courts are mindful of Article 5 of the Federal Constitution which provides for the right to life.

CONCLUSION

In the final analysis, paternalism is no longer the order of the day. Parents and more importantly doctors, play an equally important role in medical decision-making of minors. When there is a conflict between the wishes of the parents and the doctors, the court will act as the final arbiter of justice. It is observed that in medical decision-making, courts are often more comfortable to defer to the views of the doctor rendering medical opinion the most vital piece of information before the court. To the courts, the doctor indeed knows best and with this mind-set, the autonomy of the child patient or the status of his parents as the child’s proxy decision-makers often takes a back-seat. It is submitted that justice can only be served if a balancing exercise is carried out between the views of the parents and the doctor.

B I B L I O G R A P H Y

BOOKS

Kamala Bhaie a/p M G Pillai, Family Law In Malaysia, Lexis Nexis, 2009

J.K. Mason, G.T Laurie, Mason and McCall Smith’s Law and Medical Ethics, Oxford University Press, 7th Edn.

Margaret Brazier and Emma Cave, Medicine Patients and the Law, Penguin Books, 4th Edn.

Ian Kennedy, Andrew Grubb, Medical Law: Text with Materials, Butterworths, London, Dublin, Edinburgh, 1994, 2nd Edn.

ARTICLES

Dr. Puteri Nemie bte. Jahn Kassim, Refusal of Medical Treatment, [2007] 4 MLJ cxlv, [2007] 4 MLJA 145

CASES

Re B [1981] 1 WLR 1421

Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147

Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 at 420, [1986] 1 AC 112 at 184

Re C (A Minor) (Wardship: Medical Treatment) [1989] 2 All ER 782, CA

Re J (A Minor) (Wardship: Medical Treatment) [1990] 3 All ER 930, CA

Re Wyatt (a child) (medical treatment: parents’ consent) [2004] Fam Law 866

Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 All ER 906, CA

Glass v United Kingdom [2004] 1 FLR 1019, ECtHR