Medical negligence: Minor patients & consent

Modern legal and ethical requirements have significantly impacted doctors’ approach to patient involvement in decisions in relation to treatment with a “discernible tendency to overload the information dumped upon patients about infinitesimal risks until the unhappy souls are either scared out of their wits or disregard the lot as incomprehensible mumbo-jumbo ”. Legal concepts of consent within the ambit of medical ethics establish three fundamental elements of proper consent. Academic reasoning propounds that the fundamental purpose of obtaining patient consent to a specified treatment is to protect doctors against committing an actionable tort of battery. Lord Donaldson emphasised this justification in Re W (a minor) adopting the analogy of a legal “flak jacket”, which protects doctors from litigious claims and sanctions their right to proceed with treatment without litigious consequences. In highlighting the legal purpose of consent as operating as a “flak-jacket”; Lord Donaldson also pointed out the clinical purpose of consent, which is essential to efficacious medical practice.

Key Words: Medical negligence, patient consent, minor patient, parental rights, consent, valid consent, Gillick competence, Vicarious Liability, Human Rights, ECHR, Human Rights Act 1998.

[...] Although minor in this particular case lacked competence for consent, Lord Donaldson addressed the situation where those with parental responsibility may override the refusal to consent by a competent child. Lord Donaldson asserted that even if a child was “Gillick competent” and as such refused treatment, the parent’s right to consent did not automatically disappear, but it could not simply be used by itself to defeat consent given by a child. In addressing the conflict of this view with Lord Scarman’s assertions of “terminating” and “yielding” in the Gillick case, Lord Donaldson made a distinction and suggested that Lord Scarman was referring to the parental right to determine whether or not a child should receive such medical treatment and adopted a key holder analogy whereby both parent and competent child hold a key and either can give valid consent and if one chooses not to give consent, it doesn’t necessarily stop the other from lawfully doing so. [...]

[...] Furthermore, from an ethical viewpoint regarding consent to treatment, the General Medical Council’s ethics guidelines[9] (the Guidelines) focus on the need for patient autonomy and highlights recommendations for informing patients at all stages of the treatment process. Accordingly, the Trust must ensure that all options available have been communicated to and discussed regarding Peter’s treatment including the risk of undergoing the proposed treatment and the risk of refusing treatment PETER’S RIGHT TO REFUSE TREATMENT It is important to highlight at the outset that in order for any patient consent to be valid, the patient must have received sufficient information to be regarded as having “informed consent[10]”. [...]

[...] CONSIDERATION OF TRUST’S POSITION OUTSIDE THE AMBIT OF CONSENT The other issue that arises from this situation is that in light of the low chance of cure and the medical opinion that in all likelihood Peter will probably only have twelve months to live, is what the Trust’s position is with regard to administering treatment outside the realms of consent. The authoritative Bolam[31] test requires standards of medical treatment which must be in accordance with a responsible body of opinion, even if another body of opinion differs in opinion. [...]