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Flashcards in Consent II Deck (30)
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1

Effective 'consent' has to:

(1) be given by the correct person,

(2) it has to be voluntary in a sense that it is not given under undue influence or duress, and also

(3) it needs to be informed – it has got to be following correct levels of information.

2

For children

no matter who consents or wants something, the actual treatment itself is determined by the doctor. The doctors always treat in the patient's best interests. That's the same for adults.

3

Children Act 1989 Section 2(7)

Either parent is able to give that consent, and that applies to most cases. So doctors can approach a parent – mother or father – to get consent for medical treatments.

4

Re J [2000] (children)

But what the courts have done is that they have said for some important decisions, which are undefined – so the courts have not spelled out exactly what this means… for some important decisions, both parents must consent.

Was about circumcision

5

Re C [2003] (children)

The courts have done is that they have said for some important decisions, which are undefined – so the courts have not spelled out exactly what this means… for some important decisions, both parents must consent.

Was actually a vaccination program

6

Children Act 1989, Section 1

Now, when the court is asked to decide it does so in accordance with the principles under the Children Act 1989, Section 1. That directs the court to consider the welfare of the child. So it is the welfare of the child that is paramount

7

NHS Trust v SR [2012]

The little boy was Neon Roberts. He was three or four years old and he had a brain tumor and his mother was into natural health and treating things through diet. His mother refused conventional treatment for her son’s brain tumor. So, Neon Roberts’ mother refused to consent for conventional brain tumor treatment. She thought dealing with diet would solve the problem and cure her son. The doctors disagreed and wanted him to have the conventional treatment, so they went to court and the court sided with the doctors and sanctioned his brain tumor treatment. So the child did receive conventional treatment following the court's sanction.

8

Re King [2014]

This is the case of Asher King, the little boy from Southhampton whose parents wanted him to have protein bean treatment for a brain tumor. This case is slightly different because the protein bean treatment was not available at that point on the NHS. So the parents in King wanted a treatment which the doctors effectively were not able to give because there was no money for it. If you remember, it was in the news because they took him from the hospital and went to Spain with the son; eventually he ended up in Prague where he did receive his treatment. Eventually, the court was asked to determine the outcome of Asher King, and in this case the court sided with the parents – it felt that the appropriate treatment, which they therefore sanctioned, was the protein bean treatment.

9

Glass v UK [2004]

The facts are not important -- decides that if the parent objects to treatment for children then a court order is essential, and failure to get one breaches the parents Article 8 rights. So the Glass case is a European point in this connection – if the parent object to treatment, then a court order is essential. Without that, treating the child would breach the parents Article 8 rights – right to respect for their private and family life.

10

Court's authorization of use of force

as long as the use of force is to do something which is therapeutically necessary, or clinically necessary, then the use of force will not be inhuman and degrading – so there will be no breach of Article 3 of the ECHR.

11

Family Law Reform Act 1969 Section 8(1)

Consent to medical treatment of a 16 or 17-year-old shall be as effective as if they were an adult.

Firstly, this section refers specifically to consent – i.e., a positive. So it is the ability to consent in the positive sense.

As we will see a bit later on, courts have consistently said that this does not mean children can refuse treatment. So they are not given equal rights as adults.


It also only applies to diagnosis and treatment. So there are certain things to which this doesn't apply – namely organ donation, and also non-therapeutic research.

12

Gillick v West Norfolk AHA [1986]

The second way in which a child can give consent in their own right and be competent is by common law. It is the infamous case of Gillick v West Norfolk AHA [1986] -- the lady in the picture is Victoria Gillick and she was a campaigner; she was the sort of antiabortionists and anti-contraception campaigner. What she objected to was a Department of Health circular sent to GPs and sent out to doctors which told doctors that they were able to give contraceptive advice and products to people under 16 without parental knowledge or consent. So that is what she objected to. It was a Department of Health circular advising doctors that they were legally able to give contraceptive advice and products to under 16's without parental knowledge or consent.


Gillick’s argument was how can that be… Bear in mind the date, which was 1986,… The only specific law was the Family Law Reform Act 1969, which referred to 16 and 17-year-olds. So she said how can it be lawful for under 16's to consent to something when the statute doesn't cover them? That was her argument. How could it be lawful for someone under 16 to make their own decisions when they are not covered by the only law on this matter?

Now, the case did go to the House of Lords and what the House of Lords said was that just because under 16's were not covered by the Family Law Reform Act did not mean they couldn't be competent.

Effectively, even though not covered by the Act, they effectively said you could still find under 16s to be competent at common law.

The test which comes out of the case is known as the Gillick Test. So this sets outside of the Family Law Reform Act 1969, and it provides another way where children, obviously under 16s in this case, can be found competent to take medical decisions.

13

Gillick Test

Does the child have sufficient understanding and intelligence to enable him or her to fully understand what is proposed?


The relevant factors to this decision are:
Firstly, does the child understand the relevant medical issues?

Is there an understanding of the relevant medical issues?

These would include (A) their current state of health, (B) proposed treatment and side effects, (C) together with the consequences of not treating. So that is the first thing that the courts will consider when assessing a child that is not caught by the Family Law Reform Act 1969 – so perhaps someone who is 14 or 15.

Secondly, the courts have to ask whether the views expressed are the child's own, not merely those of other people. So, because you are dealing with someone who is perhaps a little bit vulnerable, the courts are very mindful to the influence of others, such as parents, carers, friends, etc. So, are the views those of the child themselves, or are they merely trotting off something they have heard from other people?
Bearing in mind that we looked at the test for incapacity of adults last week, immediately you will start to realize that the factors of Gillick competency are actually quite a lot more onerous than capacity considered for adults, because the next factor is:

The child must understand the moral and family issues involved. So, not only do they need an understanding of the health issues, but also the impact on their family, and this could be for religious issues as well – the moral and family issues – both of treating, and of not treating.


The final factor, which seems to underpin the need for the courts to be absolutely sure, which is added by a later case – Re R -- the courts need to ask: is the child’s competence reasonably secure as opposed to fluctuating? So, if a child is changing their mind all the time, then that might indicate fluctuating competence. And Re R, almost to underline the need to be absolutely sure, said that this was a relevant factor: is the child's competence reasonably secure, and not fluctuating?

14

Re S [1994]

Effectively, in this case the court said the more serious the consequences then the greater the capacity needed will be. So, the more serious the consequences, then the greater the capacity needed will be.

Now, on the facts, this case was about blood transfusions. The patient who was 15 was refusing blood transfusions. Actually, quite a few of the cases are about blood transfusions involving Jehovah witnesses. And what the court in Re S said was that she needed to understand not only that she would die without the transfusions, but she would also need to understand the manner and pain of such death.

15

Re E [1993]

It involved a 15-year-old Jehovah witness boy who had leukemia. He wanted again refuse blood transfusions, but the court found that although he knew he could die without, he didn't understand the future pain, fear and stress that both he and his family would be in. So, although he understood that he would die without the transfusions, he didn't understand the future pain, suffering, and distress for him and his family. So he was not Gillick competent.

That case is notable because when he turned 18 he refused the blood transfusions and he did die. And as one of the commentators notes, literally all that had happened was a day had moved on – on day one he was 17 and 364 days, and the next day he was 18. Nothing changed apart from his age. His wishes hadn't changed. Had he matured literally by passing through one extra night? Who knows. But under 18 the competency level was set at such a threshold that he was not competent. But at 18, as the case is from last week show, you have an absolute right to decide what you want, whether it is good for you or not.

16

Re R [1991]

The child is 15 and she was refusing antipsychotic drugs. She has psychological problems; she was refusing, or trying to refuse, antipsychotic drugs. She was Gillick Competent – she had been found to be competent using The Gillick Test.

17

Re W [1992]

involved a slightly older child. The child here was 16; so the child fell under the Family Law Reform Act 1969. This was a 16-year-old anorexic who was trying to refuse food by tube.

In both of these cases (Re R [1991]) the children were competent, but they were refusing treatment which would save their lives.

18

Re JA (Child diagnosed with HIV) [2014]

The lad involved was either a 14 or 15-year-old boy and he had been diagnosed with HIV. His parents also had HIV, and effectively the parents, together with their child, or not fully accepting of their diagnosis. So they had HIV, but they felt that a change of diet and lifestyle would cure the problem. So the child, JA, refused or sought to refuse antiviral medicine. So that is the treatment that was involved – antiviral medicine for HIV.

Now, on the facts, just to make this clear, Judge Baker did find that this boy lacked Gillick Competency. But what the case notes is this illogical point – had he been competent, then he could have been treated anyway because the doctors could have got the sanction of the court in order to treat him.

The importance of the case vocalizes, perhaps for the first time, the illogicality of having the capacity to say ‘yes’, and indeed to say ‘no’ to non-lifesaving treatments, and yet not to be able to refuse lifesaving treatments. ‘Aren't they the flipside of the same coin’ is what Judge Baker seemed to say.

19

Re X [2014]

This was another 13-year-old who was pregnant. But this 13-year-old lacked the understanding to decide on termination. So this 13-year-old was not Gillick Competent. But the judge was absolutely clear that her wishes carried considerable weight. So even though she lacked capacity to take the decision – she was not Gillick Competent -- her wishes carried considerable weight.

20

R v Tabassum [2002]

the defendant told his patients that he was medically qualified. That was the misinformation here. They then consented to having their breasts examined by him. What the court said was that the misinformation was so critical, and because this guy was not medically qualified in all, that it vitiated – removed – the women's consent. He was then liable and guilty for indecent assault.

21

R v Richardson [1998]

This was a case of misinformation by omission. The culprit here was a dentist who had been suspended by the dental authorities. But he continued to treat his patients. So the guy was a dentist who had been suspended – his license had been suspended – but he continued to treat his patients. Now, he did not tell his patients he had been suspended. But the court felt here that this omission did not sufficiently vitiate their consent to what he did. He had been a dentist, and he had been these patients’ dentist. He was still a dentist, just a suspended one. So the misinformation through omission here did not vitiate the patients’ consent. So, in this case there was no assault.

22

Appleton v Garrett (1995)

This was another dentist. He incorrectly told his patients that they had bad teeth in order to carry out unnecessary treatments on them and then he was able to claim money for those treatments. What the court said here was the incorrect information about cavities and bad teeth meant that the consent to procedures was vitiated. So this was actionable as a civil battery. So he effectively over treated teeth that were healthy by claiming that they were poor and bad and full of holes.

23

Chatterson v Gerson [1981]

This was a claimant who had chronic back pain. She was given information about a treatment which involved a spinal block where you have an injection which blocks a nerve in your spine – so it is an injection to stop this chronic pain. What she wasn't told were all of the risks associated with this treatment. Including that it might not work, and could actually cause some paralysis. So she was told about this nerve block injection, but not given full information. In connection with an argument that the doctor was liable for a battery, the court said that she had been told in general terms what was to happen to her. She knew she was to have an injection, she consented to the injection, and therefore there was no misinformation sufficient for battery.

So if there is no claim in battery because you have been given information in broad general terms about the procedure, what do you then do? Failure to inform fully is brought in negligence.

24

Re Creutzfeldt-Jakob Disease Litigation [2000] (May J)

It was a complicated case involving human growth hormone which some people, as a result of being given, develop colloquially what is known as ‘mad cow disease’ – the technical name is creutzfeldt-jakob disease. It is a form of deterioration of the brain which is inevitably fatal. So again, here, the court said that there had been sufficient information in general terms about this use of human growth hormone. There was no claimant battery, and any claim for lack of information would have to be brought in negligence.

25

Sidaway v Board of Governors of the Bethlem Royal Hospital [1985]

The court decided that Bolam should definitely apply to all aspects of what a doctor does, including advice and information.

The court decided that Bolam should definitely apply to all aspects of what a doctor does, including advice and information.

This case is still noted in textbooks. Look at this case with caution, however. The judge is very squarely rejecting informed consent. So, this case is kind of the high tide mark of paternalism – very firmly rejecting notions of informed consent. Doctors are best placed to know how how much information to give patients.


Mrs Sidaway said that she had not been told of a 1 to 2% risk that a back operation would lead to spinal cord damage. That was the information she said she had not been given. A 1 to 2% risk of the back operation would lead to spinal cord damage. Now that risk is measured at a really small level, but sadly for her that is what happened to her. So she had this operation based on the information she had been given, and she succumbed to that really small risk – she suffered spinal cord damage. But in finding against her, the House of Lords unanimously said the decision to withhold that information was one that a reasonable body of a medical opinion is supported. So the decision to withhold the information was one supported by a reasonable body of medical opinion. The doctor was not therefore in breach.


The justification is that with the information the patient will just say that they won't go ahead with the procedure. So that is the logic behind both Bolam and Sidaway.

26

Bolitho [1998]

The first case that really cast out on the role that doctors play in a decision making is the Bolitho [1998] case -- the facts here aren't about relevant information, so I won't go into them. But the case said that when judging responsible bodies of medical opinion the courts will be the final arbiter.

So up until this point it was very much the point where doctors could protect themselves – you can always find another doctor would say "oh, I would've done the same." Bolitho marks the point in which the courts take back a little bit of control. The court is saying no, just because other doctors would not have given this information, does not necessarily mean they are a responsible body of medical opinion.

27

Chester v Ashfar [2004] and Montgomery v Lanarkshire [2015]

The facts of Montgomery just give some context again. Mrs. Montgomery was diabetic, and apparently if you are diabetic you tend to have bigger babies. She was diabetic and she was pregnant. Now, diabetic babies are considerably bigger in some cases than a normal baby. And because of this there is a 10% risk that if delivered naturally the baby might suffer a condition known as shoulder dystocia.

Now the doctor treating Mrs. Montgomery did not routinely warn of this risk. Now, if parents and mothers-to-be knew that there was this 10% risk of shoulder dystocia, what method of delivery do you think they would decide to go through with? A cesarean section. In this doctor’s opinion, and indeed the opinion of many doctors, that actually is against the mother's best interests. So this doctor did not routinely warn about this 10% risk of shoulder problems for babies for fear the mother would opt for a cesarean, which in her view, and in others, is not in a mother's best interests; it is a much more risky thing for the mother to have.

Sadly for Mrs. Montgomery who did have a natural birth, her baby did suffer this shoulder complication and as a result led to a permanent disability.

Now, confirming what strictly had been orbiter comments in Chester – orbiter because Chester v Ashfar was about causation predominately -- the Supreme Court in Montgomery rejected the Bolam test for information given by doctors to patients.

So, very very clearly the Supreme Court rejected the Bolam test as regards information given by doctors to patients – not completely, but for information.

And instead, this is what the Supreme Court said: effectively, it is not for the doctor to decide the level of information; doctors owe a positive duty to make the patient aware of any material risk, both in the treatment and in alternatives.

So, rather than the doctor deciding on the information, Montgomery now says there is this positive duty to make the patient aware of material risks.

28

Smith v Tunbridge Wells [1994]

Information should be provided in a way that the patient understands. The obligation to provide the information, how much that information is, is one question. This is much more practical. Provide the information in a way that the patient understands.
That is something that the GMC supports through paragraphs 21 and 34.

29

Birch v UCL Hospital NHS Foundation Trust [2008]

It is not enough to give information on the treatment, but also on the other options as well.

30

Chester v Afshar [2004]

Ms. Chester had chronic back pain. Quite a few of these cases concern chronic back pain. She was advised to have an operation to exacerbate the problem, which she consented to. What she wasn't told was that the operation, even if carefully carried out, had a 2% risk of making the problem worse rather than better. So she had chronic back pain, she was advised to have an operation, but she was not told that this small 2% risk of the operation could exacerbate the problem.

She had the operation and sadly for her the operation did make her back pain worse and she became quite seriously debilitated by the operation she consented to.

Now, where her honesty comes in is when she took this issue to court she did say that had she been advised of the small risk then she probably still would've gone on to have the operation anyway. So she said, and her argument was about the fact that she had not been told about the risk, but that she would probably would have gone on to have the operation anyway. Possibly not that day; it might have been another day. She might've taken a few days to think about it, but she would have gone on to have that operation.

Now, in terms of statistics, whenever she had that operation is always had the same chance of going wrong. So there was always this 2% risk that she might have succumbed to an exacerbation of her problem. So there was always the same risk.

So strictly this is a case that would not satisfy the normal "but for" test. "But for" the lack of information she may well have suffered injury in any event.

Now this is a controversial decision. You might say that the court threw the causation book out the window. The court was really concerned that Miss Chester had been deprived of her autonomous decision-making rights. So the court talked a lot about autonomy. What they decided effectively was to bypass the normal causation laws. They acknowledge that in the case – if you look at Chester and try and find some logic and what they say there isn't any. The normal rules just didn't work. But based on patient autonomy the court said that this is a case where they would find factual causation even though in reality there was none.