Consent to Medical Procedures

107158 Part a) The main legal issue here concerns whether consent is required from both parents for a non-Gillick competent minor to undergo a surgical procedure that is not altogether without risk and which will not confer any direct benefit on her health. Beth at 4 years old is not likely to understand the full implications of a bone marrow donation[1] hence by this criteria she is not likely to be “Gillick competent”[2]; and so cannot give valid consent. This issue must be considered here because if she had been Gillick competent then it would be less likely that a refusal by one parent would be effective in negating her consent. The legal age of consent is 18. Below this age a person is classed as a child. However effectively the age of consent is 16 due to the operation of s.8(1) Family Law Reform Act 1969. Beth is therefore classed as an incompetent minor[3] to whom the Children Act 1989 stipulates that a parent with “parental responsibility” can give consent (albeit proxy consent), that is unless that “parental responsibility” has been removed or is restricted; s.33(3) and (4). We are told Caroline has parental responsibility for Beth and we are told that Caroline agrees to the donation. By inference there has been an offer of treatment by the doctor(s). In law consent by a parent with parental responsibility is adequate consent[4]. Generally it is irrelevant, in law, that David withholds his consent. However, in this situation the disputed procedure that Beth is to undergo is not intended to confer any physical advantage to her but may cause her some psychological stress and also carries a minor degree of risk. Clearly the Trust has reservations about going ahead when one parent objects and legal writing confirms that this view is unlikely to be unusual for this procedure.[5] However once consent is given by one person the principle stands that it is not removed by someone else. This refusal of the Trust to allow the procedure might be taken up to see if a court would direct the trust to go ahead. Where there is dispute about whether a procedure should take place and in situations where there is no parent with parental responsibility who will give consent the court may make a decision in one of two ways. Firstly the “wardship jurisdiction” could be used as described by Lord Donaldson MR in Re C[6]. The child is made a ward of court and the court makes the decision in the child’s best interests[7]. The court would take into account all the relevant facts of the case and decide upon them[8]. Decisions vary greatly with the facts of the case. The Court of Appeal refused to follow the parents’ wishes where the parents did not wish conjoined twins to be separated killing one of them in Re M and J[9]. In Re B[10] the court ordered that an infant with Down syndrome have surgery for duodenal atresia. However in Re T[11] the court found for the parents who were refusing liver transplantation for their child. Alternatively an application can be made to the court for a specific issue order requesting the court to order specific directions. In Beth’s case the court would consider the loss of her sister (a loss she might have been able to prevent) and the undoubted resulting psychological harm and also the 40% chance of any donation having the same result whereby Beth may still suffer some psychological aspects, her needle phobia and parental attitudes and these would be balanced against the advantageous effects of attempting[12] and most likely saving the life of her sister. All other factors thought relevant to making the decision in Beth’s overall[13] best interests would be considered. The courts have authorised the harvesting of bone marrow from a mentally incompetent adult in order to treat her sister.[14] The argument was the advantage gained by the donor by having a mother who was psychologically better able to look after her if she had given her sister a chance of recovery. In making the decision on Beth’s treatment the court would not consider Allison’s situation but would take into account the advantages to Beth if her sister survived. Allison is a child and if she is Gillick competent for the envisaged procedure may give valid consent. Otherwise Caroline may give proxy consent for her; Children Act 1989. Part b) The issue here is whether a 16 year old can legally be given a life-saving treatment when she is refusing to give consent. The doctrine of necessity may apply if it is not possible to discuss the situation properly with Evelyn and her treatment is required urgently to save her life. We are told she is in great pain. If the doctors consider that she cannot understand the information given, or believe it or retain it to make a decision then they may proceed under the doctrine of necessity if it is considered that she will die before rational discussion can take place. However as a Jehovah’s Witness Evelyn may carry written information stating that she would refuse blood in an emergency even if it is required to save her life. This would be particularly relevant if she was carrying this information in her patient held maternity record. This would show evidence of foresight of the situation. The age of majority and of consent is 18. Being below 18 Evelyn is a child. Someone with parental responsibility can give proxy consent (for a child under 18 notwithstanding s.8 Family Law Reform Act 1969). The Family Law Reform Act 1969 s.8 applies to those aged 16 to 18. The wording of this act includes “consent” but is silent with regard to refusal of consent. However since Evelyn is 16 her refusal of consent can actually be overridden. This follows the decision in Re W[15] where a 16 year old was refusing treatment for anorexia nervosa. In this case it was considered that the wide powers under wardship overrode concerns that the wording of s.8 “consent shall be as effective as it would if [the child] were of full age” implied that consent could include refusal of consent. There is additional case law on the same point whereby a 16 year old was refusing treatment for anorexia; Re J[16]. Evelyn’s refusal to consent can be overridden. We do not know whether one of her parents with parental responsibility would give proxy consent for her to have the blood transfusion. The Family Law Reform Act does not take away the right of a parent with parental responsibility to give consent for the child. They can give consent up to the child’s eighteenth birthday. The children Act 1989 describes who has parental responsibility; it is either parent if they were married when the child was born otherwise it is just the mother. Important principles of the Children Act 1989 are that the overriding interest is the child’s welfare. The child should be listened to but not necessarily be given full right of autonomy. Where there is conflict there should be negotiation and avoidance of delay if a legal process is needed. If proxy consent is given by someone with parental responsibility the doctors can legally go ahead with the transfusion in spite of Evelyn’s refusal. However the parents may well be Jehovah’s Witnesses themselves and refuse to give proxy consent. This happened in the case of Re O[17] whereby a blood transfusion was required by a minor and the parents who were Jehovah’s Witnesses refused consent. The court can authorise the transfusion. If the doctor considers it is in Evelyn’s best interests to have the blood transfusion and neither true nor proxy consent is forthcoming they can apply to the court to receive authorisation for the treatment to go ahead. The decision can be made quickly if the clinical situation demands. The Trust solicitor will have access to getting a decision from the court system. The court will decide in the best interests of Evelyn and may decide treatment should go ahead as in Re B[18] where surgery was ordered for a child with Down syndrome to have surgery for duodenal atresia. However the decision is not always for the treatment to be given; Re C[19]. Account will be taken of the degree of adherence to being a Jehovah’s Witness, whether Evelyn attends a place of worship regularly and whether pressure is being put on her by her family; Re T.[20] The case of Re T concerning a pregnant Jehovah’s Witness refusing a blood transfusion. In making the decision the court will not take into account the fetus in its own right (aside from the fact that the fetus has no right in law;)[21] since autonomy of the pregnant woman overrides consideration for the life or well-being of her fetus;[22] but will take into account the effect that loss of the fetus make have on Evelyn if the fetus dies because of lack of the blood transfusion but Evelyn survives along the principle established in Re Y.[23] Part c) The issue is whether Frank has capacity for the purpose of consent or refusal of consent. Capacity is the legal term for competence in the use of information in the decision making process that comprises valid consent. The question is whether an individual has the capacity to give or refuse consent. This issue is important because, as an adult, if Frank has competence to refuse to give consent (which he has a right to do[24]) and does so refuse the doctors cannot legally treat him with ventilation. In this situation they still have a duty of care to provide him with the best available treatment relevant to his needs but short of ventilation. If this ensues the issue could also be revisited with him on future occasions, if that possibility arises, since it is possible he may change his mind. It is good practice to try and encourage him to involve his family in his decision making. The Mental Capacity Act (MCA) 2007 provides a statutory framework, incorporating current best practice and common law principles, for people who may not be able to make decisions about their care. There is a presumption that an adult has capacity s.1 MCA 2007 until this is shown to be otherwise. The requirements of valid consent are;

  • Adequate information should be given about the procedure (including risks and benefits and alternatives) according to the patient’s needs
  • Competence (capacity)
  • The decision must be made voluntarily

The elements comprising capacity are;

  • Understanding the information
  • Believing the information and being able to use it in the decision making process
  • Making a decision

The legal aspects of capacity were set out in the case of Re C[25]. A phobia can lead to lack of capacity and may well be relevant here particularly the possibility of a needle phobia.[26] The degree of proof is on the balance of probability. S.2 MCA 2007 states that the single clear test for assessing capacity is a “decision-specific” one. S.2 MCA 2007 makes it clear that just because there is a mental illness lack of capacity cannot be assumed. Frank’s depression may have affected his cognitive ability. However, despite his depression, Frank could have retained his cognitive abilities but his values may be affected. For instance he may feel that his life is not worth living. When he recovers from his depression he may be pleased that he was ventilated. We are not given further details about the accident but it may be relevant if it involved a suicide attempt. A poor decision is not itself evidence of lack of capacity s.1 MCA 2007. It is not the decision itself but the decision making process that is relevant to capacity. It the doctors decide that Frank does not have capacity to refuse consent to ventilation he can be ventilated if that is in his best interests. The MCA 2007 lists items for consideration under best interests. No one can give consent on his behalf. Since he is young and expected to recover from his injuries and if there is no alternative suitable treatment then he could legally be ventilated if the doctors decide this is in his best interests. S.5 MCA 2007 confers legality of treatment given in the best interests of an adult who lacks capacity. Common law has also determined that treatment of those lacking competence is on a best interests approach.[27] S.6 MCA confers legality on any necessary force or restraint in treating the patient in their best interests. The keys as detailed in the 2007 act are proper assessment of capacity and best interests. If Frank had appointed a lasting power of attorney according to the MCA 2007 this person could make a decision on treatment for him. If a court was unable to make a decision according to the MCA 2007 a court appointed deputy could make the decision on ventilation on Frank’s behalf. The new court of protection will have ultimate decision making powers according to the MCA 2007. A new and accountable Public Guardian will oversee the way the new systems of attorneys and deputies are operating. If Frank had made an advance decision to refuse treatment according to the MCA 2007 in order for this to be binding to refuse life-saving ventilation it would need to have been in writing, and signed and witnessed. Part d) The issues include whether there was valid consent for the operation to control the bleeding. Further issues arise concerning whether the consent covered the appendicetomy and the involvement of the students and the doctor’s son. Another issue arises as to whether Albert has any claim in negligence. For consent to be valid adequate information about the proposed procedure must be given and in such a way that the patient is able to understand it. There has been a move away from the Bolam test, that is of the amount of information it is reasonable to give – a test which was used in Sidaway,[28] towards a test of how much information the patient needs – the prudent patient test.[29] The General Medical Council recommends as detailed information as possible in the circumstances should be given. We are told Albert was in severe abdominal pain and was finding it difficult to concentrate whilst his consent was being taken. As an adult Albert is assumed to have competence and this is not likely to be negated by being in pain. Dr Engelbert told him he required an urgent operation to deal with internal bleeding and that it is a minor surgical operation on his stomach which will require a general anaesthetic. In an emergency situation with acute abdominal bleeding it is likely that the amount of information conveyed would comply with a reasonable standard of care,[30] since the practicalities of the situation have to be taken into account. The consent form is merely evidence of the consent process and not the consent itself.[31] Best practice would involve mentioning about the presence of people in training and this is generally included on the consent form but it might not have been drawn to Albert’s attention especially in view of the emergency nature of his surgery. The involvement of the medical students does not invalidate consent.[32] However the Department of Health recommends that explicit consent for medical student involvement should be sought.[33] It is the procedure for which the consent is taken for not for the operator or the assistants. It is inappropriate for Dr Englebert’s son to have been present in the operating theatre during an operation. It would be appropriate to provide Albert with a full explanation and an apology without undue delay. The next question concerns whether Dr Englebert had consent to remove the slightly inflamed appendix. The consent form, as is standard practice, contained a clause stating “to such other surgical or other procedures as are medically necessary”. There is a case in Scottish case law[34] on the applicability of an “any other measures necessary” clause on a consent form. In that case, although there was some debate, it was decided that that wording was sufficient for surgery of a far greater extent than that which was envisaged by the patient. Again what matters is what Albert understood about the procedure and not the wording on the form. The issue is more likely to be decided by whether it was medically necessary to remove the appendix, urgently, and at the time of this operation. If it was then it is covered by the consent process. If it was not, then it should have been left to be removed at another time. There are two Canadian cases on this point. Sterilising a woman without her consent at the time of Caesarean section[35] was held not to be appropriate whereas removing a diseased organ at the time of an operation for something else was.[36] Since the appendix looked abnormal it may have been justified to remove it however this would be decided on the basis of the reasonable standard of care according to the test in Bolam[37] as modified by Bolitho.[38] If Albert wished to bring a claim in negligence alleging the consent was inadequate on account of inadequacy of information he would need to show that the information given to him was below acceptable standards.[39] It was also be required of him to show that had he been given the correct information he would not have consented to the procedure and not have suffered harm as a result. His arguments would be based on any complication of the appendicetomy (of which there appears to be none) or a resulting or aggravated mental health problem but this would encounter difficulties in proving causation. However in view of the emergency nature of the operation it is unlikely that Albert would be able to show that had he been given more information he would have chosen not to go ahead with the procedure. Bibliography Branthwaite M Beresford N 2003 Law for doctors. London. Royal Society of Medicine Press Davies M 1998 Textbook on Medical Law London Blackstone Hope T Savulescu J Hendrick J 2003 Medical Ethics and Law The Core Curriculum London Churchill Livingstone Howard P Bogle J 2005 Lecture notes: Medical Law and Ethics Oxford Blackwell Publishing Khan M Robson M Swift K 2002 Clinical Negligence 2nd edition London Cavendish Publishing Mason JK McCall Smith RA Laurie GT 2002 Law and Medical Ethics London 6th edition Butterworths McLean S Mason JK 2003 Legal and ethical aspects of healthcare. London Greenwich Medical Media Ltd. Journal Articles Bridge C Religion, culture and conviction — the medical treatment of young children 1999. Child and Family law Quarterly 11.1(1) Browett and Palmer, ‘Altruism by Proxy: volunteering children for bone marrow donation – legal barriers might have catastrophic effects’ (1996) 312 British Medical Journal 240


[1]Howard P Bogle J 2005 Lecture notes: Medical Law and Ethics Oxford Blackwell Publishing [2] Gillick v West Norfolk and Wisbech Health Authority [1985] AC 112 [3] Howard P Bogle J 2005 Lecture notes: Medical Law and Ethics Oxford Blackwell Publishing [4] Howard P Bogle J 2005 Lecture notes: Medical Law and Ethics Oxford Blackwell Publishing [5] Bridge C Religion, culture and conviction — the medical treatment of young children 1999. Child and Family law Quarterly 11.1(1) [6] Re C (A minor) (Wardship: Medical Treatment) (no2) [1990] Fam 39 [7]Re MM (Medical Treatment) [2000] 1 FLR 224 and Re C (HIV Test) [1999] 2 FLR 1004). [8] Branthwaite M Beresford N 2003 Law for doctors. London. Royal Society of Medicine Press [9] Re M and J (Medical Treatment: Siamese Twins) [2001] 1 FLR 1 [10] Re B (a minor) [1981] 1 WLR 1421 [11] Re T (a minor) (wardship: Medical Treatment) [1997] 1 All ER 906 [12] Browett and Palmer, ‘Altruism by Proxy: volunteering children for bone marrow donation – legal barriers might have catastrophic effects’ (1996) 312 British Medical Journal 240 [13] Mason JK McCall Smith RA Laurie GT 2002 Law and Medical Ethics London 6th edition Butterworths [14] Re Y (Mental Incapacity: Bone Marrow Transplant) [1996] 2 FLR 787 [15] Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64 [16] Re J (A Minor) (Medical Treatment [1992] 3 Med LR 317 [17] Re O (A Minor) (Medical Treatment) [1993] 4 Med LR 272 [18] Re B (a minor) [1981] 1 WLR 1421 [19] Re C (a minor) M(Medical Treatment – Refusal of Parental Consent) [1997] 8 Med LR 166 [20] Re T (Adult Refusal of Medical treatment) (1992) 3 Med LR 306 [21] Paton v British Pregnancy Advisory Service [1978] 2 All ER 987 [22] St George’s Healthcare National Health Service Trust v S [1998] The Times, 8th May 1998 [23] Re Y (Mental Incapacity: Bone Marrow Transplant) [1996] 2 FLR 787 [24] Shloendorff v New York Hospital (1914) 105 NE 92 [25] Re C (Adult Refusal of treatment) [1994] 1 All ER 819 [26] Re MB (Medical Treatment) [1997 2 FLR 426 [27] F v Berkshire HA [1990] 2 AC 1 [28] Sidway v Board of Govenors of the Bethlem Royal Hospital [1985] 1 All ER 643 [29] Pearce v United Bristol Healthcare NHS Trust [1998] 48 BMLR 118 [30] Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 [31] Hope T Savulescu J Hendrick J 2003 Medical Ethics and Law The Core Curriculum London Churchill Livingstone [32] Branthwaite M Beresford N 2003 Law for doctors. London. Royal Society of Medicine Press [33] Medical Students in Hospitals. Department of Health HC 91(18). [34] Craig v Glasgow Victoria and Leverndale Hospitals Board of Management (22 March 1974, unreported) [35] Murray v Murchy [1949] 2 DLR 442 [36] Marshall v Curry [1933] 3 DLR 260 [37] Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 [38] Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 [39] Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; Bolitho v City and Hackney Health Authority [1997] 4 All ER 771; Chatterton v Gerson [1981] 1 All ER 257

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