Development of Medical Law

3333 words (13 pages) Essay in Law

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Medical law has developed over the years, in the 18th century doctors were considered gods. However in the 21st this status has changed, patients and doctors, relationship is seen as a contract. There are a lot of factors that plays a role in the change of the doctor’s status over the years, and one of those factors are consent when limiting the doctor to the consent of his/her patient, that the courts have enforced by limiting the doctor’s powers to treat the person in the patient’s interest. adults must have the choice to be treated as they wish[1], which indicates that every adult has a right to choose their own treatment even if it is not in the best interest of the patient. Consent is important because of two factors, the first factor is legally; it would be illegal to touch a person without his/her consent, that is why without the consent of the patient the doctor shall not operate, morally is to respect the human’s dignity and choice[2] hence the person who refuses a medical treatment even if it is not the best decision the doctor must respect the patient’s decision. Children were seen uncappable to make their decision about the consent, so it was all in the hands of the parents or anyone responsible for them[3] if adults must consent to their own treatment, will children be allowed to refuse a medical treatment? This essay will discuss whether Children should have the same rights as an adult to refuse a medical treatment as adults. This essay will first discuss, the parents consent to the children’s treatment and the court’s involvement. Secondly, Glick competence. Thirdly, the ethics regarding this issue. Finally, issues that might raise on Gillick’s Competence. 

 The parent’s consent and the courts involvement are enough to establish consent for a child. If parents consented to a medical treatment, the court shall accept that consent according to children act 1989 section 2 (7) “Where more than one person has parental responsibility for a child each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child”[4] which means that the parents’ consent will be enough to establish the consent requirement and relief the doctor from his/her liability. In the case of Re J it had been established that without both parent’s consent on the matter the consent shall be deemed ineffective[5], which implicates that children’s consent is rendered useless if the parent’s consented on his behalf. The courts involvement occurs where the doctor needs to act on the best interest of the child but one of the parents have refused to consent on the medical treatment, in that case the child or another adult will have the power to seek a declaration to the court in order to make the treatment lawful[6]. The court’s reasoning for the declaration is the court seeks the best interest of the child where it would be unlawful to refuse a treatment where the doctor believes it’s the best interest of the child, this was established in the case of Re C[7] the decision on the case was that the judge ordered the mother’s to provide the best treatment of the judge. the case of Re C it established that when it comes to the interest of the child the courts will always look at their best interest rather than the child’s decision. This establishes that doesn’t matter whether the child agrees to the medical treatment of not the courts will always enforce an order to provide a recommended treatment for the child and the doctors will not be held liable for the lack of consent. This has undermined the children’s rights to refuse a treatment as an adult, on the basis that the courts don’t look at whether the child consents on the treatment, nor parents they decide based on the best interest of the child. Even if the Gillick’s competence can be applied then it should not be binding, because the courts will look at the best interest of the child rather than the consent of the child.

Children’s right to consent. first the children’s have a right to contribute on the decision if they have the right capacity, this is applied in some situations and might be consulted to a treatment[8]. We move on to the Glick competence the law was not clear for doctors to act without the parent’s consent[9], where the doctor will be liable without the consent of the parents. However, after the case of Gillick v West Norfolk and Wisbech AHA 1986[10] the facts of this case Mrs Gillick were the mother of five children wrote to the health authority that none of her children receives any medical treatment or advice however the health authority refused, she sought a declaration from the court of appeal the declaration was approved by a majority of 3:2, the appeal made by the DHSS’s to the house of lord[11]. Lord Fraser has established 5 situations in which a person under 16 years old seeking a treatment or a medical advice won’t require his/her parent’s approval the first situation is whether the girl has capacity to understand the doctor’s advice or not, the second situation is the doctor is trying to persuade her/his parents to consent for the medical advice but they refuse the third situation is “the person will continue having sexual intercourse with or without the contraceptive treatment” the fourth situation is the suffering of her/his mental or physical state is in jeopardy the final situation is the doctor must give the child a medical treatment for the child’s best interest[12]. The Gillick case has shown that it is not impossible for a child to consent on the medical treatment and they have the right to refuse a medical treatment, children must understand the Doctors advice or sufficiently understand this was established in the case of An NHS Trust v A[13]. What about in case of an emergency are children will be allowed to refuse a medical treatment according to the Gillick competence? The courts have established that Children who suffers from a serious illness will not be able to use the Gillick competence in other words consent will not be looked at in a case of an emergency[14] were the court refuses to consider the consent in the case of an emergency. In the case of Re L[15] it was stated that a girl will not have a Gillick competence in a life-threatening situation and the doctor was not liable on the basis that it was not a life-threatening situation, therefore the girl’s claim failed on the basis that it was under life-threatening decision. Now we move on to the statue side of the Gillick competence, where it was stated in the family reform act 1969 section 8 which implicates that any person who is sixteen or seventeen may choose to consent on their medical treatment or not[16]. This law was applied in the case of Re W[17] which stated that the doctor should act in accordance to the best interest of the child rather than the consent. This establishes that with the courts limitation it is still possible that a doctor treats the child whether they are above 16 (family reform act) or under (Gillick competence), both states the same thing which is children are allowed to refuse to consent, if the child has a sufficient understanding on the matter the child will be allowed to refuse a consent. In a case of emergency as stated before it was dealt differently were the children’s consent is not binding as the parents might agree to a medical treatment, but the child refuses the refusal will be ineffective, the doctor will not be liable for treating the child. The statue of the family reform act indicates that any child who is sixteen years old or seventeen should be able to make the decision because they will be treated as an adult. What was established that children’s have the right to refuse to consent based on the Gillick competence, it would be human to reject their choice based on what the parent’s think unless it is in the case of an emergency then it is a different topic because the parent’s and the court will look for the best interest of the child. to conclude children should be allowed to refuse to consent to a medical treatment if they grasped an understanding of their situation.

We have mentioned the legal point of view on the Gillick’s competence. Now we move on to the ethical view of the Gillick’s competence. ethics is not a legal matter it is not binding but it is moral, it states what is ought to be done rather than right or wrong. First, we will look at the four principles that was stated by Beauchamp and Childress which were autonomy, nonmaleficence, beneficence and Justice[18]. Autonomy according to Beauchamp and Childress means that every person must have their own will to choose[19] in other words every person is free to choose whether they want to be treated or not. Therefore Autonomy can be applied to the Gillick competence were the Autonomy means freedom and in the Gillick competence it allows the children to have the same freedom as the adults. It would be unethical to deny the freedom of choice based on their age, if they have a grasp of understanding of the procedure then there should be no reason to deny them the freedom to choose whether they consent or refuse the treatment. Nonmaleficence doctors shall do no harm to patients[20], which indicates that doctors shall not do any harm to patient this establishes that doctors will not do harm in giving a child a treatment and an advice the more reason to allow children to have the right to consent. Beneficence is doctor’s duty is to do good, which indicates that doctors must act in the best interest of the patient. Beneficence is related to the Gillick competence in a sense of if the doctor’s duty to do good for the children, then children should be allowed to make their own decision if the doctors act fairly and offers to give them the best advice and the best treatment because they must act in their own interest. Justice which indicates that all cases which have similar facts must be treated in the same way[21], otherwise it would be considered injustice it will be unfair to treat a case that are similar where the Gillick competence must be adapted in so many situations, but the only exception is the emergency case, an example mentioned before Re L[22]. Those 4 principles are not the whole of the ethics in medical law, the principles are just a framework in order to set the moral’s issue[23] where the ethical framework is important, and it takes an extra step on making the Moral rights more effective. As we established the four principles of Beauchamp and Childress, they had reached a frame work for every moral issue the four principles need not exist at the same time. When it comes to the Gillick’s competence Autonomy allows the children to have more freedom of choice by denying the Gillick’s competence, the Nonmaleficence point of view is not restricted only to doctors it can be reviewed with the court, in a sense of the emergency the court will disregard the children’s consent when it comes to an emergency situation, because the court will not allow any harm to occur to a child and so at it implicates in Nonmaleficence that it shall do no harm and the court must consider it. When we talk about beneficence, were the doctor looks for the benefit of the child and they will not do them any harm and by preventing children from receiving medical treatment or a medical advice is unethical, and it could be illegal to prevent such a treatment [24]. When we talk about justice the courts should apply similar cases equally as to the Gillick’s competence were children under 16 years old will have the right to consent to their own medical treatment. Children’s should be treated as an adult if they have a grasp of understanding, on this basis the fact that they do have medical understanding they are mature enough to make their own decision. That is why Gillick’s competence should be effective were children’s have right to refuse their medical treatment

Children’s consent who are older than sixteen years old have their rights to consent or refuse autonomy. Children who are under sixteen have been established by the common law in the remarkable Gillick v West Norfolk and Wisbech AHA 1986, one important requirement must be established which is an understanding or an enough understanding. One of the issues that may raise is the understanding of the child is uncertain as to what extent the understanding should be of the child[25]. That is the first problem that raises when establishing Gillick’s competence, the other issue that may arise is in a case of an emergency, where the an emergency situation occurs Gillick’s competence is ineffective this was established in the case of Re E[26], were it was established that Gillick’s competence is important and the children’s consent must exist, in the case of an emergency the consent is not binding nor considered as the court must look at the best interest of the child. When talking about the issue of the Gillick’s competence the first one that raises is uncertainty, the uncertainty of understanding can limit the consent made from the children, there is no standardized test in order to establish a child’s understanding. The other issue is in case of an emergency, where children’s consent is not binding nor final, even if they sought declaration the doctor will do whatever is possible to save a child and a consent from the parents or court will be sufficiently enough. Those issue might raise when talking about the Gillick’s competence.

In conclusion, Children should be allowed to refuse to a medical treatment as an adult. As we established that the Family Reform act 1969 section 8 that children above 16 their consent is valid as an adult. However, Children under the age of 16 their consent was established in the case of Gillick v West Norfolk and Wisbech AHA 1986, were it was allowed so under the case of Gillick and the act children will be allowed to refuse a medical treatment as an adult if they have an understanding of the medical treatment, however there are some issues that was raised were a case of an emergency and the Gillick competence is ineffective, or the understanding of the medical treatment. The ethical point of view plays a huge role in Gillick’s competence especially the four principles autonomy, beneficence, justice and nonmaleficence. The Gillick establishment should be applied in most situation which is as follow children should be able to refuse a medical treatment as adult. In the future there might be a case that standardizes the knowledge, or the understanding needed to comply with the Gillick’s competence.

References

  • Beauchamp TJ Childress, Principles Of Biomedical Ethics, 5Th Ed (5th edn, Oxford University Press 2001)
  • Bijsterveld P, ‘Competent To Refuse?’ (2000) 12 Paediatric Care
  • ‘Consent For Emergency Medical Services For Children And Adolescents’ (2003) 111 PEDIATRICS Jackson E, Medical Law (4th edn, Oxford University Press 2016)
  • Hickey K, ‘Minors’ Rights In Medical Decision Making’ (2007) 9 JONA’s Healthcare Law, Ethics, and Regulation
  • Lombardo P, ‘Phantom Tumors And Hysterical Women: Revising Our View Of The Schloendorff Case’ (2005) 33 The Journal of Law, Medicine & Ethics

[1] Paul A. Lombardo, ‘Phantom Tumors And Hysterical Women: Revising Our View Of The Schloendorff Case’ (2005) 33 The Journal of Law, Medicine & Ethics.

[2] Emily Jackson, Medical Law (4th edn, Oxford University Press 2016).

[3] Kathryn Hickey, ‘Minors’ Rights In Medical Decision Making’ (2007) 9 JONA’s Healthcare Law, Ethics, and Regulation.

[4] Children Act 1989, S 2

[5] [2000] 1 FLR 571

[6] Emily Jackson, Medical Law (4th edn, Oxford University Press 2016).

[7] [2003] EWCA Civ 1148

[8] Emily Jackson, Medical Law (4th edn, Oxford University Press 2016).

[9] Emily Jackson, Medical Law (4th edn, Oxford University Press 2016).

[10] [1984] QB 581

[11] [1984] QB 581

[12] Emily Jackson, Medical Law (4th edn, Oxford University Press 2016).

[13] [2014] EWHC 1445 (Fam)

[14] ‘Consent For Emergency Medical Services For Children And Adolescents’ (2003) 111 PEDIATRICS.

[15] [1998] 2 FLR 810

[16] Family law Reform act 1969 S 8

[17] [1993] Fam 64 (CA).

[18] Tom L Beauchamp and James F Childress, Principles Of Biomedical Ethics, 5Th Ed (5th edn, Oxford University Press 2001).

[19] Tom L Beauchamp and James F Childress, Principles Of Biomedical Ethics, 5Th Ed (5th edn, Oxford University Press 2001).

[20] Tom L Beauchamp and James F Childress, Principles Of Biomedical Ethics, 5Th Ed (5th edn, Oxford University Press 2001).

[21] Emily Jackson, Medical Law (4th edn, Oxford University Press 2016).

[22] 1998] 2 FLR 810

[23] Principle of Biomedical Ethics, 7th edn (OUP: Oxford, 2013).

[24] [1984] QB 581

[25] Petra Bijsterveld, ‘Competent To Refuse?’ (2000) 12 Paediatric Care.

[26] [1993] 1 FLR 386.

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