Valid Consent In Medical Law: A Critical Evaluation

Free Consent

Consent refers to giving the permission or assenting for something to happen. Under the medical law, valid consent remains a vital element to any treatment, as it not only protects the patients but also protects the ones who provide such a treatment. For the second category, the valid consent acts as a defense in such cases where a claim is made under the criminal charges of batter or assault or against the civil claims of trespassing against another person. The decisions which have to be made regarding the medical treatment can prove to be quite difficult. This becomes particularly true in such cases where the individuals are faced with a harsh dilemma between saving and prolonging a life of an individual, but with difficult side effects or a violation of the strict religious beliefs.  

Whenever the phrase competency of Gillick is mentioned, the academicians discuss the ability on part of a minor to make their own choices and to have these choices being upheld in a lawful manner. It becomes crucial to examine the manner in which the issues are handled by the courts when it comes to the issues which relate to the decision makers being children, and balancing the choices as per the view of the guardians or the parents, and ultimately making a decision where the views of one, overrules the one of the other.

To avoid the implications of the case of Gillick, the courts had distorted ethics and common sense. It is said that there is a lack of justified reasons why the adolescents should not be treated as adults for the purpose of refusing or giving consent to the medical treatment. However, this may not be true. In the following parts, this particular statement has been critically evaluated with a particular regard to the refusal of and consent to the medical treatment.

It is quite a well known principle that before any individual can be treated as a patient, by a doctor, healthcare provider or physician, the consent of the patient has to be obtained. The adults have the free authority of giving the consent for either attaining the treatment or refusing it outright, as they are deemed to have the necessary competence, which is required to make a decision in their best interest. However, when it comes to the children, the same becomes a matter of dispute.

The general principles provide that the doctor has to establish, while obtaining the consent, regarding the child being legally competent. In other words, the child needs to have the capacity to give consent to any treatment. Under the law, any and all individuals, who are over the age of 16, are assumed to have the required capacity to give the consent for treatment, until the time evidence can be presented to prove otherwise. In case the child is not considered as being legally competent, the consent needs to be obtained from an individual who has the parental responsibility, apart from emergency cases. In order to save the life of a young person or a child, or to prevent serious deterioration to their health, the emergency treatment can be provided in absence of consent.

Gillick v West Norfolk and Wisbech AHA

The principle that people have an absolute right of not getting the integrity of their body violate is a principle which has been supported by a huge number of case laws. As per section 8 of the Family Law Reform Act, 1969, the adolescents or the minors aged between 16 to 18 have the power of giving consent to their own treatment. Along with this, through the law, the Gillick principle has been developed, which empowers the children below the age of sixteen in taking their own decisions.

In the case of Gillick v West Norfolk and Wisbech AHA, Mrs. Gillick had five daughters who were all under the age of sixteen years. She applied and sought out a declaration as per which it would be illegal or illegitimate for a doctor to prescribe a contraceptive to the girls without the consent or knowledge of the parent. In this particular case the House of Lords held that the declaration cannot be made, and hence, the same had to be refused.

To Lord Fraser, it seemed that it was on the verge of being absurd to make a suggestion that a boy or a girl aged 15 could not give the consent in an effective manner. He cited an example of giving consent to have a medical examination being conducted for a broken arm set or a trivial injury to his body. Even though it is a normal parlance to attain consent of the parents in such a case, the same may not be available at the instantaneous moment. Provided that the child, who the patient, has the capability of understanding what has been proposed, or expressing their desires or wishes, irrespective of the child being a girl or a boy, there is no valid reason for holding out that the patient does not have the capacity to express the wishes in an effective and valid manner, as well as, to authorize the medical man to give the treatment or make the examination which is advised.

The reason behind this was that a minor girl, who had attained the age of 16, has the ability to form or enter in a contract, as per the prescribed limits. Such an individual child can also be sued or sue someone else and even can give an oath as evidence. Lord Fraser stated that he was not disposed to hold that a girl, who was less than 16 years of age, did not have the power to give a valid consent to the treatment or advice on contraceptives, just because of her age.

Ethical Arguments

He laid down certain guidelines, which are now famously referred to as being the Fraser guidelines. In his opinion, it was justified on part of the doctor if he proceeding, without the knowledge or consent of the parents, when the doctor was satisfied that the girl, even though was less than 16 years, could understand the advice given to her; that the doctor could not convince her to allow him to inform her parents or to inform them herself on the matter of her seeking the advice on contraceptives; that it was highly likely that she would continue to have or initiate having sexual intercourse, even if she did not receive the treatment of contraceptives; that her mental or physical health are both likely to suffer unless and until she gets the treatment or advice regarding the contraceptives; and lastly, that in her best interest, the doctor is required to pass on the treatment or advice, or even both of these regarding contraceptives to her, without the consent of her parents.

There are a number of ethical arguments which override the decision taken by the court to allow a decision made by a Gillick competent child to refuse medical treatment than the ones who support that the decision of the child should be legally accepted. When an adult, who is deemed as being competent, faces such a dilemma, it becomes the legal duty of the medical professionals to respect such choice.

In Re T, Donaldson MR upheld the well established principle that an autonomous right is held by the individuals to bodily integrity. He stated that an adult patient free from mental incapacity has the absolute right of choosing whether to refuse the treatment or give consent to the same. And this choice is not limited to the same being sensible. This is present irrespective of the reasons for undertaking the particular choice being irrational, unknown, non-existent or rational. This particular approach was than underpinned in the cases of Re B and Re MB.

And so the domestic laws present that this particular right is attained at reaching the age of 18. By attaining majority age, the individual is deemed to have the ability of making such decisions, irrespective of the sufficiency of maturity or life experiences on part of such an individual.  As highlighted earlier, the decisions pertaining to the medical treatment are made by an individual who is deemed to have the parental responsibility. This responsibility has been contained in section 3(1) of the Children Act 1989. This section presents this responsibility as being one where all of the powers, authority, duties, rights and responsibilities lies, as per the law, with the child’s parent, with regard to the property of the child and the child. Hence, under the doctrine of responsibility of a parent, the decisions relating to the care or healthcare of the child is included.

The case of Gillick recognized that once a child has attained the maturity which can be deemed as sufficient, so that the treatment could be understood, the child has the freedom to take their own decisions. This has also famously been referred to as Gillick competence. Though, there have been a number of decisions which have held otherwise. As a result of this, it has been stated that adolescent autonomy is merely a misconception, that the young individuals have the right of taking their own medical decisions. Even though Gillick presented that the child who has attained the required maturity, can take their decisions, but there has been a rhetoric failure in echoing that in the right of a minor to have the autonomy regarding the refusal of a life sustaining treatment.

In the case of Re R (A Minor) (Wardship: Consent to Medical Treatment), a girl aged 15 was suffering from a condition known as the acute psychiatric condition. Due to this particular condition the girl could not understand in a clear manner, that she required medication for treating her condition. Hence, it was held that there was a lack of sufficiency in her competence, and so, even against her will, she was treated. The decision seems to be consistent with that of Gillick at the first glance, due to her lack of metal capacity. Lord Donaldson however commented that even if R had the requisite understanding, the girl would not be able to attain a veto treatment as a minor who is Gillick competent, does not have the authority of rejecting the treatment, as they can only accept the same. The consent was deemed as being akin to such a key which had the ability of unlocking the door for the treatment, as a result of which, the actions of the doctor were made lawful, yet not obligatory. Hence, once an individual attains the competency as per Gillick, the individual becomes the holder of the key. The key issue which requires appreciation is that Gillick competency cannot be overridden by a parent. Though, when a refusal to consent is raised regarding the treatment needed for the best interest of minor, it becomes possible that an application to the High Court is required for overriding such refusal.

And while giving the later decision in the case of Re W (A Minor) (Medical Treatment: Court’s Jurisdiction), the earlier dicta was followed by Lord Donaldson, which was in line with this particular reasoning. In this particular case, the girl aged sixteen was under the care of Local authority and suffering from anorexia nervosa. The Local Authority applied for guidance regarding whether or not they could transfer her to a special unit, against her wishes, so that she could be force-fed. Since the girl had attained 16 years of age, consent under Family Law Reform Act 1969’s section 8 could be given by her; though, she refused to give the same. It was held by the court that as per section 8(3), the concurrent parental power was preserved by law, which related to authorization for the treatment, and regarding the inherent powers of the court to protect the welfare of the minor. And just for the sake of lawful consistency, the previous decision of Lord Donaldson could not be followed in a consistent manner.

The reasoning of Lord Donaldson is comprehensible in terms of the sentiment of Children Act 1989. Hence, the paramount consideration as per this act’s section 1 remains the welfare of the minor. And so, the court would always rule in favor of preserving life. It is a matter of balancing essentially between the rights to autonomy against the sanctity of life. Hence, with regards to the right to autonomy of a minor, the sanctity of life would always prevail in the courts. Hence, in terms of consistency or legal clarity, the decision of Re W and Re R make no sense with regards to the decision of Gillick. There is a presence of evidence to show that none of these patients would have satisfied the requirements which have been presented through Gillick. For adults, it is crucial that they understand the implications of the treatment which has been proposed to have the capacity, and have to be mature to weigh the treatment in balance. The principle laid down in Gillick is essentially the same, and so, the minors of the cases highlighted above, would not be able to meet these requirements.

Even though Gillick has been a landmark decision, whereby the competent minors below the age of sixteen, having the sufficient intelligence and understanding, and this case promises to make the competent minors have the power of deciding their future recourse. Though, the scope of authority under this particular case, lacked clarity, as a result of which, there have been limitation in the subsequent cases, as has been highlighted in the previous segment. These problems stem from both the inherent limitations and the subsequent judicial interpretations, especially in a number of cases where the power of a competent minor to deny or refuse the life sustaining treatment has been restricted. Even though the case was designed as a response to certain issues, but the same has been applied in much wider context, and has been coupled with the refusal cases.

Post the Human Rights Act of 1998, the application of the Gillick competence test has been confirmed in the matter of R (Axon) v Secretary of State for Health. But, with the application and interpretation of this test, in wider context, i.e., in both medical, as well as, non-medical context, it continues to show signs of strain. The wider context cases include the cases of Mabon v Mabon and Re Roddy (A Child) (Identification: Restriction on Publication). The strain is evident from the refusal of the life sustaining treatment. Such cases counter the significance of the autonomy which was implied in the case of Gillick and the same was preserved through the act of Children Act 1989. Two separate grounds had been development for overriding the refusal of minor towards the treatment, as has been highlighted through the case of Re R and Re W.

There is an ambiguity relating to the relationship between authority and competence. For adults, i.e., for the ones who have attained majority, the law on consent is slowly and steadily transforming from a legal tool, which has been designed for transferring the responsibility to a means of protecting the autonomy of the patients. The Gillick competence concept, along with the consequent judicial analysis, act as a barrier to the same process which takes place with regards to the consent of a child. By being competent, the minors are only able to authorize the decisions which the others deem as being in their best interest. And so, this position is quite conflicting with regards to the rights of the minors. The moral rights of the minor cannot be defined easily. Instead of articulating the relevant obligations of adults, the rights are deemed as the best manner of protecting the children. When the demands are expressed as rights claims, it becomes challenging for the individuals. Certain rights are limited to children, certain to adults and certain are shared between them.  Gillick test remains unhelpful in establishing in which particular circumstances, the rights of minors would be deemed as equal to that of the adults.

Conclusion

The adults have been given the free right to make their own medical decision and decide what is right for them or what is not in their best interest. However, when it comes it comes to the minors they are not deemed to have the capacity to make their own decision. Often a contention is raised that the minors have the competence, in adequate cases, to make their own medical decisions, as was highlighted through the case of Gillick. This case provided that if the competence of an individual can be established, on the basis of this decision, an individual below the age of sixteen, could choose to refuse a medical treatment.

However, this case has not been able to be as successful as it should have been. It has failed in being the choice as the preferred case in such cases due to its shortcomings. There have been ambiguities in the subsequent interpretation of this case, which is coupled with the lack of adopting the theme of this case. Hence, even though this case presented the minors with the landmark decision, the same could not be used by the other minors in the subsequent cases, and the prime example of this can be seen in the cases of both Re R and Re W. These cases depict that the adolescents cannot be treated as adults for giving consent to a medical treatment due to the flaws in Gillick and even, to some extent, cannot refuse the same, where the same is not deemed as being in their best interest. So, even though it can be quoted that there is a lack of justifiable reasons on part of adolescents to refuse or consent to a treatment, the same is not true. The lack of actual competence, along with the best interest, is amongst the justifiable reasons in this regard.  

Cases

Gillick v West Norfolk and Wisbech AHA [1986] AC 112 

Mabon v Mabon [2005] EWCA Civ 634

R (Axon) v Secretary of State for Health [2006] EWHC 37

Re B [2002] 2 All ER 449

Re MB [1997] 2 FLR 426

Re R (A Minor) (Wardship: Consent to Medical Treatment) [1992] Fam 11, [1992] 1 FLR 190, [1991] 4 All ER 177 CA

Re Roddy (A Child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam)

Re T [1993] Fam 95 at 103

Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64, [1993] 1 FLR 1, [1992] 4 All ER 627

Statutes and statutory instruments

Children Act, 1989

Family Law Reform Act, 1969

Human Rights Act, 1998 

Books

Brazier M, and Cave E, Medicine, Patients and the Law (6^th edn, Oxford University Press 2016)

Harris-Short S, Miles J, and George R, Family Law: Text, Cases, and Materials (3^rd edn, Oxford University Press 2015)

Herring J, Medical Law and Ethics (5^th edn, Oxford University Press 2014)

Lynch J, Consent to Treatment (Radcliffe Publishing 2011)

Maclean A, Autonomy, Informed Consent and Medical Law: A Relational Challenge (Cambridge University Press 2009)

Richardson G, Partridge I, and Barrett J, Child and Adolescent Mental Health Services: An Operational Handbook (2^nd edn, RCPsych Publications 2010)

Samanta J, ‎and Samanta A, Medical Law (Palgrave Macmillan 2011)

Journal articles

Cave E, 'Goodbye Gillick? Identifying and resolving problems with the concept of child competence.’ (2014) 34 (1) Legal studies 103

Trowse P, ‘Refusal of Medical Treatment – A Child’s Prerogative?’ (2010) 10 QUTLJJ

Website and blogs

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E-Law Resources, ‘Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112 House of Lords’ (2017) <https://e-lawresources.co.uk/cases/Gillick-v-West-Norfolk.php> accessed 09 May 2017

Hayhoe B, ‘Decision Making in Children and Young People: Gillick Competent?’ (Sage Journals, 11 December 2008) <https://journals.sagepub.com/doi/abs/10.1093/innovait/inn091?journalCode=inoa> accessed 09 May 2017

HCR, ‘Gillick v West Norfolk and Wisbech Area Health Authority and another’ (2017) <https://www.hrcr.org/safrica/childrens_rights/Gillick_WestNorfolk.htm> accessed 09 May 2017

McNary A, ‘Consent to Treatment of Minors’ (NCBI, 2014) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4008301/> accessed 09 May 2017

Swarb, ‘Gillick -v- West Norfolk And Wisbech Area Health Authority and Department of Health and Social Security’ (2017) <https://www.swarb.co.uk/c/hl/1985gillick.shtml> accessed 09 May 2017

Tidy C, ‘Consent to Treatment in Children (Mental Capacity and Mental Health Legislation)’ (Patient, 24 November 2015) <https://patient.info/doctor/consent-to-treatment-in-children-mental-capacity-and-mental-health-legislation> accessed 09 May 2017