Legal Issues Relating to Medical Treatment and the Minor by nvw54192

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									     Legal Issues Relating to
    Medical Treatment and the
              Minor
                    Richard Huxtable




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                     Overview
•   Background: Ethical and Legal Issues
•   Three Stages of Minority
•   Views of the Minor: Consent and Refusal
•   Authorising Treatment: Proxies and the
    Courts



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    Background: Ethical Issues
Four principles of “bioethics”…
• Autonomy               (respect competent decisions)
• Beneficence            (promote “best interests”)
• Nonmaleficence         (do not harm)
• Justice                (equality, no prejudice)

But be wary of…
• Paternalism           (denial of autonomy, in “best interests”)

Bear these points in mind when you consider the legal position…
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    Background: Legal Issues
Legal relevance of consent:
• Without a “legally valid” consent, the medical
  professional can be sued (for the “tort” of trespass to
  the person” or prosecuted (for crimes like “assault” or
  “battery”)

Legal relevance of refusal:
• If the refusal is “legally valid”, the medical
  professional cannot proceed without risking the same
  adverse results
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    Three Stages of Minority
          (1) Options

•   Status-based (chronological age)            or
•   Maturity-based (“competence”)

•   The law follows both, effectively…



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    Three Stages of Minority
       (2) Legal Answers
•   Law perceives minority in three stages:

a) 16-18 years
b) “Mature” Minor
c) “Immature” Minor (NB not a legal term!)

•   We will examine consent and refusal by the
    minor in each of these categories
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          Views of the Minor
            (1) 16-18 years
• Governed by an Act of Parliament: Family
  Law Reform Act, section 8

• Once 16, can consent if “competent”; doctor
  protected, so no need for parental consent

• But can the minor over 16 provide a binding
  refusal? We’ll examine this shortly…
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          Views of the Minor
         (2) “Mature” Minors
          The Gillick Case [1985]
Victoria Gillick objected to a DHSS circular
 permitting adolescents to receive
 contraceptive advice from GPs without
 parental knowledge/consent
The House of Lords declared that the circular
 was lawful…

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           The Gillick Case
• Essentially, a minor can provide a valid consent, provided
  they are competent i.e. of “sufficient intelligence and
  understanding” to understand what is proposed

Importance?
• The “Gillick competence test” is not restricted to
  contraceptive advice – it applies to all medical procedures
• So, a competent minor’s consent can suffice for treatment
  to occur
• What of refusal? Will this “veto” treatment?…
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     Refusal and the Gillick
       Competent Minor
                     Re R [1991]
A female patient of 15 years refused to consent to
  the administration of anti-psychotic drugs
Lord Donaldson in the Court of Appeal authorised
  the treatment as in her “best interests” (see later)
“Key-holder” analogy
• The competent minor (not, he held, this patient)
  holds a key to unlock the door to treatment – but
  so do parents/the courts
• Compare, then, his next judgment…
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Refusal and the Minor of 16-
          18 Years
                         Re W [1992]
A female patient of 16 years refused to move to a specialist
  treatment for treatment for her anorexia
Lord Donaldson (again!): Removal was authorised in her
  “best interests”
The “Flak Jacket”
• Here, Donaldson realised that keys can lock as well as
  unlock – and he obviously did not wish the minor to be
  able to veto treatment
• Now, consent seen as a “flak jacket” protecting the medics
  from civil or criminal action: a competent minor can
  provide this protection, but so too can parents/courts
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        Issues to Consider…
• The result of the last two cases (plus some further
  cases) must be that no minor – even a competent one –
  can refuse treatment and expect her refusal to prevent
  this treatment
• What then is the current importance of Gillick and the
  1969 Act of Parliament?
• Does the Human Rights Act 1998 alter matters?
• Is the current law ethically appropriate?

• We also need to look at the third group of minors…
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        Views of the Minor
      (3) “Immature” Minor
• This (non-legal) term relates to those under-
  16s who are not Gillick competent
• These minors can provide neither a legally
  valid consent nor a legally valid refusal

• So, we need to ask someone else: who?
• Also, who do we ask if the competent minor
  (of any age) refuses consent?
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     Authorising Treatment
        (1) Who to ask?

• “Parents”: those with “parental
  responsibility”
• The (High) Court

       We will examine these in turn…


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   Authorising Treatment
(2) “Parental Responsibility”
The Children Act 1989 provides that the relevant
  person has “parental responsibility”
       Who has “Parental Responsibility?
(E.g.)
• Married parents (s. 2)
• Unmarried mother
• Unmarried father if agreement/court order (s. 4)
• One with “residence order” (ss. 8, 12)
• Local Authority if child in care (ss. 31, 33)
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       Authorising Treatment
 (3) “Parents” and Consent/Refusal
• The “parent” can consent or refuse on behalf of
  the incompetent minor and/or the competent
  minor who refuses to consent
• One such consent will suffice, in theory
                      Problems
• What if all “parents” refuse?
• What if there is serious disagreement amongst the
  parties?
• Unfortunate but inevitable answer: go to court!…
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      Authorising Treatment
        (4) Going to Court
           Two “Routes” to Treatment:
• An Order under the Children Act 1989
  E.g. “specific issue order” (s. 8)
  Decision promotes “welfare” (ss. 1, 3)

• Under the Inherent/Wardship Jurisdiction
  The minor becomes a “ward of court”
  Court decides according to “best interests”
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          The Story So Far…
Age Range              Patient Input           Input of Others

16-18 Years       •Can consent:        Consent
                  1969 Act             -By “parent”
                  •Refuse not veto:    -(NB Emergency: treat)
                  Re W                 Refusal
“Mature”/Gillick •Can consent:         -By parent: will not veto,
Competent        Gillick               as court ultimately can
Minor            •Refusal not veto:    decide
                 Re R                  - Court: decide according
“Immature”        •Cannot consent      to welfare (1989 Act) or
Minor             •Cannot refuse       “best interests”
                                       (wardship)
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       Authorising Treatment
          (5) An Example
                 Religious Refusals: Re E [1993]
E (15¾) refused blood transfusion (Jehovah’s Witness). Parents
   also refused
Ward J: E not competent and refusal of all did not create veto –
   court authorised in “best interests”

Issues
• Was E really incompetent? (very intelligent etc.)
• Should we override religious beliefs? (NB Human Rights Act
   1998)
• Once E was 18 his refusal (suddenly!) was deemed competent,
   and he died. What do you think this says of the law’s approach
   to minority?                                                           19




       Authorising Treatment
        (6) Another Example!
                               Re M [1999]
M (15 years) refused heart transplant: felt would make her a “different
   person”
Johnson J: Incompetent, treat in “best interests”

Issues
• Many follow up procedures necessary: M has to live with these against
   her will and the courts may need to be consulted repeatedly
• Organ shortage: maybe let another have the heart?
• If incompetent, why did judge give her lengthy, complex extracts from
   old cases to read?!!

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