Medical Treatment: Decisions and the Law

4. Deciding for Others – Children

FRAMEWORK

4.1 In English law a child is any person under the age of 18. As might be expected, the law recognises that children do not possess the same capacity to make decisions as adults. As will be seen, however, much depends on the age of the child.

Consent to medical treatment of a child can be obtained from a number of sources and treatment should not be undertaken without obtaining consent or authority from one of the following:

  • those with parental responsibility – usually one or both of the parents, unless the responsibility has been allocated by the court in some different way or to a third party;
  • the child in question if he is over the age of 16 or is otherwise of sufficient maturity and comprehension to take a decision of the relevant gravity;
  • the court exercising its inherent or statutory jurisdiction over children.In the absence of any such authority it is unlawful to treat a child unless the circumstances are of such urgency that it is impossible to obtain such consent and it is in the child’s best interests to have the treatment: the treatment will be justified by the doctrine of necessity.Whereas consent by any of those with the capacity to do so will be sufficient authority to proceed with the treatment, the same is not so with a refusal. The effect of a refusal of consent to treatment depends on who makes it. The case law currently indicates the following hierarchy of authority:
  • the refusal of the child patient, of whatever age, will not prevail in law against the consent of a person with parental responsibility or the court;
  • the refusal of the parent will not prevail against the consent of a child of 16 and over, or even of a younger child of sufficient maturity and understanding to consent to the treatment in question;
  • the refusal of the child (of any age) or of the parents will not prevail against the authority of the court exercising its inherent or statutory jurisdiction.It follows that it is much easier to obtain authority to treat a child than to prohibit treatment. As English law stands, it is permissible with the relevant authority to treat a child against his will and to use the restraint reasonably necessary for that purpose. The continued legitimacy of this position under the Human Rights Act 1998 is questionable and remains untested. Nevertheless, if the medical regime imposed would amount to a frank deprivation of liberty (and not merely a restriction of liberty) then parental consent would not be sufficient authorisation.

Best interests: the court’s approach

4.18 The court’s approach to infant treatment decisions is, by necessity, highly fact specific and the courts have been understandably slow to set out definitive guidance on the application of the ‘best interests’ test. The flexibility afforded to the court comes at the expense of certainty for doctors and their legal advisers.

The court is tasked with weighing up the advantages and disadvantages of providing, withholding or withdrawing the various treatment options and to balance them in order to determine what the child’s best interests are. The court must exercise independent and objective judgment on the basis of all of the available evidence. Best interests are not limited to medical interests and it is for the court, not for a doctor, to determine what the child’s best interests are. Thus, evidence will not be limited to medical evidence. The views of doctors, other members of the infant’s care team and his parents should be taken into account to the extent that they touch on the child’s best interests, rather than their own interests or opinions.

Where the court is deciding whether to withdraw treatment it will have to conclude ‘to a high degree of probability’ that it is in the best interests of the child. This does not mean, however, that the medical experts giving evidence must be unanimous in a proposed course of action. The court will weigh competing medical evidence and is entitled to reject one line of evidence.

The courts approach the exercise of determining best interests against the background of a strong presumption in favour of preserving life. Where treatment would, however, be futile, the presumption is rebutted and it has been held that there is no obligation on the medical profession to provide such treatment.

It has been suggested in the adult context that the key question to be asked is whether there is any chance of the patient recovering any quality of life so as to justify his continued discomfort. Assessments of life quality should be approached cautiously and with due regard for the presumption that favours preservation of life.

The concept of ‘intolerability’ of the child’s condition should not be invoked to usurp a comprehensive determination of best interests. It is neither a supplementary test to the ‘best interests’ test nor a gloss on that test. Although it may be a relevant factor in the assessment of best interests, intolerability cannot provide a single determinative test as to best interests.

In NHS Trust v MB Holman J provided a helpful summary of the application of the ‘best interests’ test in infant treatment decisions, noting that it was the role and the duty of the court to exercise its own independent and objective judgment:

‘[1] The right and power of the court to do so only arises because the patient, in this case because he is a child, lacks the capacity to make a decision for himself.

[2] I am not deciding what decision I might make for myself if I was, hypothetically, in the situation of the patient; nor for a child of my own if in that situation; nor whether the respective decisions of the doctors on the one hand or the parents on the other are reasonable decisions.

[3] The matter must be decided by the application of an objective approach or test … That test is the best interests of the patient. Best interests are used in the widest sense and include every kind of consideration capable of impacting on the decision. These include, non−exhaustively, medical, emotional, sensory (pleasure, pain and suffering) and instinctive (the human instinct to survive) considerations.

[4] It is impossible to weigh such considerations mathematically, but the court must do the best it can to balance all the conflicting considerations in a particular case and see where the final balance of the best interests lies.

[5] Considerable weight (Lord Donaldson … MR referred to “a very strong presumption”) must be attached to the prolongation of life because the individual human instinct and desire to survive is strong and must be presumed to be strong in the patient. But it is not absolute, nor necessarily decisive; and may be outweighed if the pleasures and the quality of life are sufficiently small and the pain and suffering or other burdens of living are sufficiently great …

[6] All these cases are very fact specific, i.e. they depend entirely on the facts of the individual case.

[7] The views and opinions of both the doctors and the parents must be carefully considered. Where, as in this case, the parents spend a great deal of time with their child, their views may have particular value because they know the patient and how he reacts so well; although the court needs to be mindful that the views of any parents may, very understandably, be coloured by their own emotion or sentiment …

[8] It is important to stress that the reference is to the views and opinions of the parents. Their own wishes, however understandable in human terms, are wholly irrelevant to consideration of the objective best interests of the child save to the extent in any given case that they may illuminate the quality and value to the child of the child/parent relationship.’

The difficulty faced by the court in performing a balancing exercise was highlighted in the 2009 case of RB, a 13-month-old boy who was born suffering from a severe neuro-muscular disorder. RB’s condition was static but unlikely to improve. He was a ‘floppy’ baby with virtually no independent movement. He had required ventilating since birth and had failed all attempts to wean him from ventilation. Although it had not been possible to reach a diagnosis with any certainty, the probability was that his condition arose from a defective gene. There was some prospect of research within his lifetime identifying that gene but no realistic prospect of any treatment being developed. RB had been resident on the applicant Trust’s paediatric intensive care unit for eight months and was invasively ventilated through an endo-tracheal tube which passed through his nose. His parents and the clinicians agreed that it was not in his best interests for that to continue. The clinicians and his mother argued that RB’s very poor quality of life weighed in favour of withdrawing ventilation. His father argued that a tracheostomy should be performed so as to allow his discharge home. After six days of evidence the father withdrew his objection to the treatment and McFarlane J granted declarations relating to the withdrawal of ventilation and the provision of palliative treatment.

In light of the consensus that was finally reached, no formal judgment was handed down although the Judge concluded the hearing with some words of endorsement which included the comment:

‘… I agree with the outcome and consider that the conclusion to which they and the clinicians have come is the only tenable outcome for RB, the viability of whose life, from its first moment, has depended upon receiving intensive and invasive care from others.’

Contents

  • A Framework  4.1
  • B Capacity to consent to treatment 4.2
  • Children of 16 years of age and over 4.2
  • Children under the age of 16  4.3
  • Parents and those with parental responsibility 4.4
  • Power to refuse treatment  4.5
  • Children over the age of 16 or possessing Gillick competence 4.6
  • Compulsory treatment and children’s rights 4.7
  • Children under the age of 16 not possessing Gillick competence 4.8
  • Parents  4.9
  • The court  4.12
  • D Special considerations in the treatment of severely ill infants 4.13
  • Deliberate killing  4.14
    • Withholding and withdrawing life-sustaining treatment 4.15
    • Withholding treatment 4.15
    • Withdrawing treatment 4.16
  • Providing treatment  4.17
  • Best interests: the court’s approach 4.18
  • Practical guidance  4.19
  • E Conclusion  4.20

updates and appendices will be provided for this chapter in due course

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