How to Understand the Nature of the Treatment - Assignment Example

 Medical Law 1. The law accepts that an adult is fully capable of making decisions in regard to medical treatment, and no medical practitioner may provide treatment without first gaining the consent of the patient. This position has its roots in the general belief that applies to the autonomy of the individual to “determine what shall be done with his own body” as articulated by Justice Cardoza1. However, the position in reference to minors is somewhat different, since they are not legally adults. The criterion applied by the law in the case of minors receiving or refusing medical treatment was set out in the case of Gillick v West Norfolk and Wisbeck Area Health Authority.2 In this case, a young girl under 18 was held to be legally competent to consent to contraceptive treatment and advice because she had enough intelligence to understand the nature of the treatment. This case has set out a test that assesses the young person’s level of understanding and maturity in regard to the treatment that is being proposed. There is no fixed age at which it is possible to say that a child is mentally capable of understanding the nature of medical treatment and therefore capable of providing consent. The competence to consent is thus to be based upon the level of understanding demonstrated by the child. Hence, under this test, minors are effectively presumed to be incompetent unless they fully understand the nature of treatment and its effects, as also the consequences of refusing such treatment. According to Lord Scarman, the children must demonstrate both understanding of the treatment, as well as the maturity to understand its other implications, such as moral and emotional ramifications of the decision3. Such an evaluation of minors to assess whether they are Gillick competent requires a medical practitioner to determine if the minor is mature enough to provide consent and autonomy in decision making can be allowed only when a minor can demonstrate such understanding of the nature and effects of treatment4. However, in contrast to Lord Scarman’s views, Lord Fraser stated that a young person is capable of consenting to medical treatment if he or she is able to understand what is being proposed and can express his or her views clearly in this regard. However, this was to be subject to the medical practitioner deeming such treatment or refusal of treatment to be in the patient’s best interests.5 In the case of Re S (A Minor)(Consent to Medical Treatment)6the patient S was suffering from thalassaemia, yet continually refused blood transfusions which would have helped in the management of the condition. In this case, S was not judged to be Gillick competent on the basis that she could not fully comprehend the implications of her continued refusal of treatment. While in this case, the judge did not say outright that S could have been subject to undue influence from her mother who was a member of the Jehovah’s Witnesses religious denomination, he did point out that the sharing of her mother’s beliefs and the hope for a miracle could have undermined the minor’s capacity to understand the full implications of refusal of treatment. The minor’s right to refuse was thus overridden by the Court. The question of the religious convictions of the minor in question was raised again in the case of Re E (A Minor)7 which concerned a boy of 15. He was adjudged to be incompetent to make a decision about refusal of medical treatment because the Judge could not determine conclusively whether the boy was acting out of his own free will or whether his will had been conditioned by the beliefs of his faith. Since in this instance, there was no question about the minor’s mental competence, the judge’s overriding of the minor’s wishes on his medical treatment appears to be based solely on the judge’s non agreement with the boy’s religious convictions. Such overriding of the child’s right to refuse treatment was also the case in Re A (A Minor) (Wardship – Consent to Treatment)8 where the child was not found to be Gillick competent and Lord Donaldson MR, held that the minor’s right to refusal of treatment could be set aside when such a refusal of treatment could lead to serious health consequences or death. A court can thus override the young person’s refusal to treatment when it is against his or her best interests, even if the young person is considered to be Gillick competent.9 It was also held in this case that the refusal of treatment by a Gillick competent minor did not in any way, hinder the ability of the young person’s parents to give effective consent to that treatment, since the child is legally still a minor. On the basis of the above, it may be noted that the Gillick competence established by the courts places the onus on medical practitioners to determine whether the minor has sufficient understanding and maturity and this has been difficult to execute in practice. When a Court is approached to authorize medical treatment for a minor that has refused treatment, it will first apply the position that the young person’s opinion should be the guiding criterion unless there are strong reasons to disallow such a decision to prevail.10 But the cases above which show how courts have overridden the right to refusal of treatment of competent minors is a disturbing trend, because it appears to place the rights of minors on a lower standing as compared to adults, whose decisions are respected no matter how irrational they are. In allowing parents to consent to treatment the minor has refused, or overriding patient decisions made on religious grounds, the autonomy of minors has been made questionable. The law also needs to be reformed in terms of determining competence of a minor as laid out by the Gillick competence standards which is indeterminate as it currently exists, placing the burden on physicians to determine the extent of the minor’s maturity and understanding. …..1000 words Ans 2: The case of Bolam v Friern Hospital Management Committee11 was significant because it laid out the test that a doctor is not guilty of negligence if he has acted in a manner that is proper according to a responsible body of medical opinion, to be in the patient’s best interests. However, as Goldrein (1994) argues, such an interpretation of best interests of the patient may be faulty and it may be necessary to evaluate physician negligence as a tortious act, rather than allowing it on the best interests argument.12 The best interests standard allows decisions to be made on the basis of what may be in the patient’s best interests to provide beneficial consequences for the mentally incompetent patient13. As opposed to this, the substituted judgment entails making an effort to arrive at the decision that the person would have made if he/she had been competent to do so, however such decisions may not automatically be those which are in their best interests. Hence, there is a conflict that may arise between the autonomous decision of the patient and the decision in his/her interest. In a survey that was conducted among the parents of eighty eight adults or adolescents with mental retardation, almost all parents supported the sterilization of their children mostly out of fear of the sexual abuse of their children or a pregnancy occurring.14 In the case of Re F15 it was held that sterilization was in the best interests of the patient if a responsible group of medical professionals considered that it was so. Similarly, in the case of Re X (Adult sterilization)16 sterilization was carried out because it was deemed to be in the best interests of the patient. A 19 year old mentally handicapped woman was also sterilized without her consent on the grounds that it was in her best interests.17 In the case of Re B (a Minor) (Wardship sterilization)18 the House of Lords affirmed the decision of a lower court that authorized the sterilization of a 17 year old mentally incompetent girl on the grounds that it was in her best interests for her welfare, since she lacked the mental capacity to handle childbirth. All of these cases have overridden the autonomy of the patient in performing the sterilizations. However, there was also a fundamental principle established by the case of Re F, that every person’s body is inviolate and Lord Goff stated clearly that “the performance of a medical operation upon a person without his or her consent is unlawful, as constituting both the crime of battery and the tort of trespass to the person.”19 The importance of this principle in protecting individual freedom had earlier been spelt out by Lord Reid in the case of S v McC, W v W 20 in opposing the imposition of medical procedures because “English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty.” But in the case of Re F, Lord Goff also pointed out that when a patient is unable to give his or her consent for any reason, “there exists in the common law a principle of necessity which may justify action which would otherwise be unlawful.”21 Parens patriae exercised by the Court thus appears to be the guiding principle behind the forced sterilizations of women who are mentally handicapped, on the grounds that it is in their best interests and must be applied on the doctrine of necessity, codified under sections 5 and 6 of the Mental capacity Act of 2005. In the case of Re S22, the Court of Appeal reversed a decision of the High Court allowing the sterilization of a mentally incompetent 29 year old woman. Dame Elizabeth Butler Sloss was of the view that despite the concerns of the mother about her daughter, the surgical procedure could not be forced upon the young woman without her consent23. According to Richard Kramer of Charity Mencamp, the decision of the Court of Appeal was the one truly in the best interests of the young woman because “sterilization cannot be in a person’s best interest if based on social rather than health grounds.”24 Under Section 58 of the Mental Health Act of 1983, ECT and medicines may be given to a mentally incompetent person when there is a concurring opinion from another doctor on the need for such treatment. The Act also allows for the detention and treatment of patients with mental illness without the need to acquire the consent of the patient. However, in the case of St. Georges Health Care Trust v S25 the Court of Appeal stated that the Mental Health Act of 1983 “cannot be deployed to achieve the detention of an individual against her will merely because her thinking process is unusual.”26 Moreover, with the incorporation of the Human Rights Act of 1998 into UK law, any kind of treatment given without the consent of the patient will be lawful only if it is convincingly shown to be medically necessary.27 On this basis therefore, forcible sterilization of female patients on the grounds of mental disability, such as the cases described above may not be lawful and the autonomy of the patient may need to be respected, as demonstrated in the decision on Re S. Such cases demonstrate that the decision to sterilize the women, made on the basis of parental concerns about pregnancies may not be a valid legal position, which respects the autonomy in decision making of these women. The views of Jackson that the interpretation of “best interests” so far has been unfortunate, appears justified, since the real best interests of the person must be determined on health grounds rather than social grounds. A serious and life threatening crisis posed to the patient may provide adequate grounds for forcible sterilization, the desire of parents or doctors to sterilize a mentally incompetent person on the grounds of being unable to handle pregnancy may not. …………………………….1000 words Bibliography * Goldrein, Iain S, 1994. “Medical negligence – Bolam - problems arising out of “ancestor” worship”, New Law Journal, 144 (6633) :1237 * Jones, Shirley R and Jenkins, Rosemary, 2004. “The Law and the midwife,” Blackwell Publishing * Keels, Patterson L, Quint, E. Brown, D, Larson, D and Elkins, T.E., 1994. “Family views on sterilization for their mentally retarded children”, Journal of reproductive Medicine, 39(9):701-6 * Skene, L, 2004. “Law and Medical Practice: rights, duties, claims and defences” (2nd edn) Lexis Nexis, Butterworths (Sydney * “Sterilization ruling overturned” BBC News Report, 18 May, 2000. Retrieved February 1, 2008 from: http://news.bbc.co.uk/2/hi/health/753567.stm * Welch Don, D, 1989. “Walking in their shoes: Paying respect to incompetent patients”, 42, Vand Law review, 1617 Cases cited: * Re A (A Minor) (Wardship – Consent to Treatment (1991) WLR 592 * Bolam v Friern Hospital Management Committee (1957) 1 WLR 582 * Gillick v West Norfolk and Wisbeck Area Health Authority (1986) AC 112 * Re E (A Minor) (1993) 1 FLR 386 * Re F (Mental patient) (Sterilization) 1990 2 AC 1 * R (N) v Dr M (2002) EWCA Civ 1789, (2003) 1 WLR 562 * Re S (Adult patient’s best interests) (2000) 2 FLR 382 * Re S (A Minor)(Consent to Medical Treatment) (1995) Fam 20 * Re X (Adult Sterilisation) (1998) 2 FLR 1124 * Re ZM and OS (Sterilisation: patient’s best interests) (2000) * RE B (A Minor) (Wardship Sterilisation) All ER 1987, 2: 206-219 * RE S (A Minor) (Refusal of Medical Treatment) (1995) 1 FCR 604 * S v McC, W v W (1972) AC 24 at 43 * Schloendorff v Society of New York Hospital (1914) 105 NE 92 at 93 * St. Georges Health Care Trust v exparte S (1998) 3 All ER 673 Read More