Consent and Capacity: (Gillick Competent)

Introduction

Consent and capacity is given to persons who are competent. These competent persons can either be children or adults as long as they are of sound mind and they fully understand the consequences of their decisions. A court is used in providing the final decision on the situation and the type of the patient. There have been several debates on determination of a competent person who can consent and have the capacity to determine their treatment. Therefore, this essay seeks to determine if a patient is competent and has the capacity and right to consent their treatment in consideration to their different conditions.

According to sec (8) of the 1969 reforms Act on family law, minors of age 16 years are given an ability to give a valid consent concerning their medical treatment. However this provision does not allow them to refuse medical treatment and to that extent parent are allowed to consent on the behalf of the minor if he/she refuses the treatment. This paper analyses the extent to which the refusal of the minor can be allowed and when the consent of the parent and the court does overrides the refusal of the minor.

 

Gillick Competent child

A child has three development stages. Early childhood stage is the first stage where the parents have to consent on behalf of their children since at this stage the child cannot consent to the major medical treatment[1]. The second stage is the ‘Gillick competent’ stage where these children can give their informed consent on the medical treatment as they have the capacity to do so after understanding  the information involved in it[2]. The nature of the treatment and the child’s understanding of it describe that child as a ‘Gillick competent’. The third stage is the age period of 16-18 years. The ‘Gillick competent’ concept aims at ensuring that their wishes are given full consideration and respected during the process of arranging their medical treatment as it recognizes that the child’s health mentally and physically relies on that child cooperating with the recommended medical treatment[3].

Gillick case[4] involved the treatment and advice on contraceptives directed to girls under the age of 16. However, as the time continued, the case has risen to involve both the boys and the girls under the age of 16 and necessarily it does not have to relate to contraceptives, it can be any treatment. Therefore, at this age group, a Gillick competent child might have the competence to decide if they will have sutures but they cannot decide if they will undergo a transplant, thus their parents have to make this decision for them. As a result, Gillick competence changes with the type of treatment.

 

Determination of a Gillick competent child

Even though the laws have not specified the exact age of a competent child, on average a child below the age of 12 lacks the competent capacity while those aged between 14 and 16 years, have high chances of being competent[5]. In addition, to the age determining the competency of a child, their health condition is also a determinant of competence. In relation to this, the health condition period and possible period of the treatment will determine the competence in the treatment consent as long as the illness is relevant. As a result of all these considerations, the medical professionals end up being the decision makers on the capacity level of competence that a child has in refusing the treatment.

An irreversible health damage or even worse, death, could occur if a life-saving treatment is withdrawal, thus the principles used in decision making, considers that there will be changes in the situation on either accepting or refusing treatment[6]. These changes have their roots on the transitional stage from childhood into adulthood. It was held by the court in Re E (A minor) (Wardship: medical treatment)[7]  that, in making a decision, it has to be based on the fact that teenagers express themselves as convicts of youth, however this in later years may not be the same convictions. These convictions tend to suggest that the teenage convictions are bound to change the moment they become adults. Jehovah witness religion condemns blood transfusion and this minor was one of them[8]. At that time he was 15 ½ years and refused the blood transfusion. At the age of 18 his conviction had not changed and unfortunately, his health deteriorated and he died[9].

In Re R (A Minor) (Wardship: Consent to Medical Treatment)[10], Lord Donaldson stated that, a minor’s consent as a competent right was not extended to them having a right to refuse the treatment that was to be used as life-saving or prevention of further damages. In agreement to this, in R W (A minor) (Medical Treatment: Court’s Jurisdiction)[11] Donaldson held that the child had the right to voice their consent but not the right to refuse treatment and the parents consent had to be used. It was held by J Johnson in Re P[12] that a Jehovah Witness was to be given blood transfusion as it was in their best interests to save their lives if the situation lacked an alternative treatment and it was life-threatening.

The ‘flak jacket’ has been argued as a protection of the medical practitioners’ interest and not the rights of the minors who are vulnerable to the decisions of these medical professionals[13]. Brazier and Bridge argue that this ‘flak jacket’ theory by Lord Donaldson “reduces the function of consent to treatment to a mere formality designed to protect doctors from litigation”[14]. Therefore a Gillick competent child and the 16-17 year olds will not have the right to refuse the treatment as long the permission to use it has been given by their parents[15].

 

Adrianne’s case

A 15 year old in Re M needed a heart transplant but she and her parents in exercising their consent, they refused it. However, after an application to the court the court authorized the heart transplant. In regards to this, 15 year old Adrianne has refused to have a kidney transplant arguing that, she will be a subject to the anti rejection drugs her entire life if she agrees to the kidney transplant. Her parents consent favours their daughter Adrianne but according to the doctors, this condition is life threatening and if the transplant does not occur, Adrianne might die after a few weeks.

At 13 years, Hannah refused to undergo a heart transplant in 2008 due to the knowledge that the process had complications[16], it might not succeed and in case it succeeded then she was to be treated with immunosuppressant so as to avoid the donor heart rejection[17]. Her parents supported her decision[18] and as a result, the hospital had to involve the court for a decision on her treatment and consent right. Also, since her parents had supported her consent, if Hannah had changed her mind at that moment, the transplant will not have occurred, thus a need to include Hannah’s interests in the decision to determine her competence[19]. The hospital was aiming at saving her life by ensuring the court agreed to her having the transplant even though it was against her will. Despite this situation and the many previous court holdings, the court honoured Hannah’s wishes. The court considered her competence capacity, the personal judgement in the decisions as a voluntary making and the base of the decision[20]. However, a year later, July 2009, Hannah agreed to the transplant arguing that her health had improved and thus the risks involved were less[21].

According to Gillick v West Norfolk and Wisbech AHA[22] a child should clearly understand the consequences of the decisions based on the recommended treatment. These decisions have to be based on different perspectives; moral, ethical, social, philosophical and every perspective that influences that decision[23]. As such these perspectives should be put in the context of that child’s age so that they can fully understand. This understanding will ensure the decision is a personal application and not made out of peer pressure, youth convictions, culture trends, fashion and any other influence Gillick v West Norfolk and Wisbech AHA[24].

Already Adrianne has had two kidney transplants but unfortunately they have all failed. She is informed on the effect of the transplant such that if the transplant succeeds, she has to on anti rejection medication her entire life. Adrianne believes that this would be against her best interest. Furthermore, at 15 years she is grown up child to clearly understand the consequences of her decisions. Her parents have been involved and they have shown full support of their daughter’s consent. Therefore, it will be legally unlawful if the doctors at this particular point to perform the kidney transplant on Adrianne.

However, Adrianne condition is life threatening and the court should intervene since the doctor’s opinion and that of Adrianne and her parents is conflicting. The court has been the ultimate authority on the treatment status of a child if their parents and the doctor’s choices conflicts as stated in s 100 (3)[25]. However, the court has no powers on the consent of the adult after the court in Glass v United Kingdom[26] held that, a medical treatment that is against the wishes of a competent adult, is legally unlawful since there would have been a violation of section 8[27].

 

Bessie’s case

The mental capacity of an individual determines if they have consent to clearly make and understand their decision[28]. MB in Re MB[29] was found not to have a mental capacity to consent thus could not refuse the caesarean section treatment. MB interests were based on the fear of needles and as such she was influence by her fear in refusing to have a caesarean section to save her baby. In relation to this, Bessie has refused to undergo a caesarean section that hopes in saving her baby since heart rate of the foetus is slowing down. Bessie has laid her decision on the fact that she is terrified of surgery. This in relation to Re MB is a lack of capacity to consent since she is influenced by the fear of surgery in making her decision. As a result, her life and that of the baby has to be saved, therefore, the doctor should proceed with the operation.

In respect to [30]Articles 12(i) and 14(i) parents cannot reject the consent of their mature minors below 16 years as advocated by Gillick competence, and those between 16 and 18 years as supported by FLRA 1969 s. 8. However, this does not mean they do not have consent over their children. In fact, it is only in emergency cases that parents consent will not be considered in treating a Gillick incompetent child[31]. If Bessie is under the age of 18 her parents have consent on the situation but if she is an adult, Bessie has the right to decide what her body needs. However, since Bessie lacks the capacity to consent and the caesarean section is an emergency, the operation has to be done by the doctors.

Researchers have proved that, after a child has been placed on life saving treatment though against their wishes, as time goes by and they grow up, they often will come back acknowledging the efforts of the doctor in placing them on the life-saving treatment[32]. The treated unconscious people who if they had a consent to make a decision will have opted to say no, often are grateful that they were helped and saved by the medical treatment administered to them as their best interest[33]. As such, the law considers the mind’s lack of stability, thus it gives the option to persons to take back their consent after it has been given[34]. This might justify the powers of the minor refusing the treatment but it fails to justify the adult’s refusal to treatment as a medial paternalism since they might also change their perceptions in the future[35].

 

Derek’s case (an adult patient)

If it is compulsory to make a decision on behalf of a competent person, that decision should be in accordance to their best interests[36]. However, this decision has to be made in respect to the action and presence of freedom and the rights of that person[37]. At the age of 56 Derek, has “a progressive degenerative illness” that will render him over dependent on permanent care. Derek had already been informed on this condition and as a reaction to it, he directed the doctors that if a point had reached, that he would depend on the breathing devices, then his wish was to stop the treatment immediately. This situation has occurred and according to the doctors there are antibiotics that he can be administered with as it will respond to the infection that has caused his breathing difficulties. Derek’s consultant knows the wishes of Derek therefore he should act according to them.

A competent person cannot be forced to agree to a medical treatment even if the lack of it leads to death. It was stated in F v West Berkshire Health Authority[38] that it is the consent of the competent patient to determine if they will be administered with the prescribed medical treatment as long as they were of sound mind. [39]The results of the refusal might be death or severe damages but that competent patient has the freedom to choose if they want to be administered with that treatment[40]. Therefore, the consent of Derek is legally valid and even though, the stop of the treatment might lead to his death or continue damaging his health, he his competent enough to know the consequences thus his wishes should be fulfilled. In addition, the hospital and the consultant will be acting unlawful if they give Derek the antibiotics.

In support of this the court agreed in Ms B v An NHS Trust, that, it was unlawful to keep a competent patient against her interests and competence. A ventilator was used in keeping Ms B alive but this was against her consent and she ordered the court to remove it. At her capacity she understood the consequences of her decision, thus the hospital in continuing to keep her alive they were being unlawful[41]. Therefore, the interests of the competent patient have to rule the interest of the medical practitioners of ensuring that they keep the competent patients alive[42]. Derek interest should be favoured in the rule of decision and not the interests of the consultant that he can save his life by administering the antibiotics to clear the infection. Furthermore, the use of a ventilator to keep Derek alive due to the breathing difficulties was against his interest and as a competent person, he has the right to have his consent and wishes respected[43].

However there are instances when the consent of the minor is not guaranteed as the court ruled in the case of (Re K, W and H (Minors) (Consent to Treatment) [1993] 1 FLR 854) where the refusal of the minor was not guaranteed and the parent consented on behalf of the minor. This happens on the basis that minors at times do not know the implication of their refusal to treatment. The refusal of the minor is not acknowledged and the parent or the court can consent on behalf of the minor. For example in the case of Re S [1994]2 FLR 1065 and Re M [1999] 2 FLR 1097 where the court in its jurisdiction ordered the treatment of the minor arguing that the minor lacked understanding in the implications of refusing the treatment. The court argued that important decisions require high level of intelligence and understanding to make them.

In St George’s Healthcare NHS Trust v S[44], a treatment decision can be illogical, life threatening or “morally repugnant” but as long as that decision has been made by a sound minded adult, that medical decision is effective. An individual aged above 18 years is an adult[45]. Likewise, in Re C (Adult: Refusal of treatment)[46], the patient went against the opinion of the doctor and refused to have his leg amputated even though he had schizophrenia that had caused his foot to be gangrenous. His wish was granted since he was competent enough to refuse the doctors opinion. As a result of this, he opted for a treatment that was conservative and surprisingly the foot responded to this medication. This therefore, leads to the conflict in determining exactly the patients’ best interests’ base[47]. Therefore the medication and the doctor’s opinion might not have an impact on Derek and surprisingly he might turn the condition into a healthy one. After all, he made the directive when he was of sound mind and of competent age as an adult.

Consent to treatment should be given to the persons under the full age capacity to consent but in the case of a life-saving treatment they should not be granted this right until they have the full age to consent that medical treatment. This ensures that the individual undertaking the irreversible option has had the experience of life and therefore they have an understanding of the future and its possible outcomes as it was stated in Gillick v West Norfolk and Wisbech AHA[48]. However, an effective consideration should be directed towards their opinions and wishes. For example, in general operations such as in an organization, it is mostly the experienced people who have the chance of being given the opportunity to make managerial decisions and on few circumstances will the fresh graduates receive this opportunity. This therefore has been believed by the society that it is only an experienced person who understands the risk of life and death.

 

Conclusion

In conclusion, children have consent on the treatment they are administered to but their parents also have to consent on that medication before it is administered on the child. If the parents and the child have a different opinion than that of that doctor, the court can intervene as they have the final decision on the treatment given to persons. Children below the age of 18 years have the power to consent but not the powers to refuse the treatment more so if it’s a life-saving treatment. Likewise, an adult has the right to decide what is to be done with their bodies. Adults have consent to choose what medication is to be administered to them as long as they are of sound mind. In addition, they can refuse the medication being administered into them even if the result of it leads to death or an irreversible damage.

 

A child aged between 16-17 years is treated as an adult person by the Family Law Reform Act 1969, in that they can consent their medical treatment. The lack of clarity in this consent law occurs when section 8(3)[49] contradicts in itself, in that it advocates that the previous laws that had been operating on the consent law will be effective in consideration to the possibility that had the inaction of this section not occurred, then they will be effective. In relation to this, parents can still consent for their minors of age 16 to 18 years[50]. As such, the court will have the final treatment decision if both the minors and their parents refuse the medical treatment. Mostly, the court intervenes at this situation if they rule that the treatment that the parents and the minor himself or herself have refused, if only it is to that child best interest[51]. However, an adult is allowed by the court to refuse this treatment.

 

 

 

 

 

 

 

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http://news.bbc.co.uk/2/hi/health/2997350.stm accessed 28 January 2011

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Table of statutes

Children’s Act

Family Law Reform Act 1969

Human Rights Act 1998

Mental Capacity Act 2005

UNCRC

ECHR Cases

Glass v United Kingdom (61827/00) [2004]

United Kingdom Cases

Cardozo J Schoelendorff v New York Hospital [1914] 211 NY 125

F V West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 AII ER 545 [1990] 2 AC 1

Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112 (HL) (Lord Fraser) 112

Ms B v An NHS Trust [2002] EWHC 429 (Fam)

Re C (ADULT: REFUSAL OF TREATMENT) [1994] 1 WLR 290

Re E (A MINOR) (WARDSHIP: MEDICAL TREATMENT) [1993] 1 FLR 386, 393

Re M [1999] 2 FLR 1097

Re MB [1997] 38 BMLR 175 (CA)

Re P (Medical Treatment: Best Interests) [2003] EWHC 2327 (Fam)

Re R (A minor) (Wardship: Medical Treatment) [1992] Fam 11 CA

Re W (A minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64

Sidaway v Governors of Bethlem Royal Hospital [1985] 2 WLR 480