Re R (A Minor) (Wardship: Medical Treatment)

Consent • Purpose of consent to treatment – moral purpose – clinical purpose – legal purpose “It is trite law that in general a doctor is not entitled to treat a patient without the consent of someone who is authorised to give that consent. If he does so, he will be liable in damages for trespass to the person and may be gulity of a crininal assault.” Lord Donaldson Re R (A Minor) (Wardship: Medical Treatment) (1991)

Consent: law • Valid consent – capacity to decide – sufficient information – acts voluntarily

Consent: law • Capacity – understand information provided – retain and believe it – weigh it in the balance to make a choice • F v West Berkshire Health Authority (1989) • Re C (Adult: Refusal of Treatment) (1994) – proposed detailed 3 stage test for capacity

Consent: law • Sufficient information – Tort of battery • patient informed in broad terms • nature and purpose of treatment explained – consent ‘real’ and no liability in battery: Chatterton v Gerson (1981)

– Tort of negligence • higher standard operates for tort of negligence Sidaway v Board of Governors of the Royal Bethlem and Maudsley Hospital (1985) • ‘material’ or ‘significant risks’ must be disclosed sufficiency of information defined by Bolam principle; patient’s questions answered truthfully - (subject to therapeutic privilege)

Consent: guidelines • General Medical Council (GMC) guidance – doctors should do their best to find out about patients’ individual needs and priorities when providing information about treatment options – if the patient asks specific questions about the procedure and associated risks these should be answered truthfully – an individual’s personal preferences should also be taken into account when identifying his or her needs in the provision of care.

Consent: law • Voluntary – no pressure or undue influence either to accept or refuse treatment or care – sources of pressure • partners; family members; health or social care professionals. • Re T (Adult: Refusal of Treatment) (1992)

Consent: Best Interests • no one can consent to treatment on behalf of an incompetent adult • doctrine of necessity can be invoked for emergency treatment • treatment can be given on basis of best interests

Consent: Involvement of the Court • Circumstances when when referral to court necessary for a ruling on lawfulness before a procedure is undertaken: – sterilisation for contraceptive purposes – donation of regenerative tissue such as bone marrow – withdrawal of nutrition and hydration from an individual in a persistent vegetative state – where there is doubt as to the individual’s capacity or best interests.

Consent: Children • Children – Minors

• Consent – who can consent? – child – parent or guardian – Court – doctor

Consent: Children • Child’s right to consent – S8 family Law Reform Act 1969: • 16-17 years of age

– ‘Gillick Competent’ • no specific age – depends on individual child • “… child capable of understanding and who has the intelligence to understand fully what is proposed” Lord Scarman • parent can act for a child who is not ‘Gillick Competent’ but cannot override a ‘Gillick Competent’ child’s consent

Children: Consent by Others Consent treated differently to refusal • parents, guardian or court able to over-rule refusal by a ‘Gillick competent’ adolescent to receive treatment which is in her best interests – Re R (A minor) (1992); Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) (1992)

• ‘Gillick competence’ depends on seriousness of the decision taken as well as cognitive powers and maturity – Re L(Medical Treatment: Gillick Competence) (1998)

• Courts adopt paternalistic approach when adolescents are afflicted with life-threatening situations – Re M (Medical Treatment: Consent) (1999) 2 FLR 1027; Re E (A Minor) (Wardship: Medical Treatment) (1993)

Children: Consent by Others • Rationale for distinguishing between consent and refusal – consent – accepting greater knowledge of medical profession – refusal – decision asks more of the child – Courts reluctant to empower children to refuse treatment against medical opinion; best interest test applied Heirachy for decisions:

Court ↓ Parent ↓ Child