Essay: Consent to and refusal of treatment

The ethical considerations into allowing a competent patient to refuse treatment conflicts largely to the current legal and professional approach; particularly in the asymmetry in the extent of the right afforded to adult patients and to child patients. Whilst consent to, and so refusal of, treatment is pivotal in medical practice, the underlying feature of the consent is capacity. The provisions regarding capacity are provided for in the Mental Capacity Act 2005 (MCA) which extends a presumption of capacity to all individuals. The most distinguishing feature between adult and child patients is the child presumption of incapacity; where the rebuttable derives from the common law Gillick competency test. The asymmetry is that while competent adult patients hold an absolute right to refuse, Gillick competent children do not when the consequence of doing so risks permanent physical injury or death.
Current Approach
Consent to treatment is pivotal in the medical practice and is well defined in the Nuremberg Code: ‘the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or ulterior form of constraint or coercion’. Treating a patient without their consent will result in the tort of trespass of the person, namely battery. Chatterton v Gerson laid down that once consent is given ‘in broad terms of the nature of the procedure… the consent is real’ and prevents any claim for trespass . The crux of consent is the capacity to do so. An individual’s capacity is governed by the Mental Capacity Act (MCA) 2005. It is provided that a person is assumed to have capacity, which is rebuttable by establishing that they do not . With such presumption of capacity, a patient has the ability to freely consent to and refuse treatment, even if the decision to do is ‘unwise’ . This is reinforced in the British Medical Association’s (BMA) guideline which states that a patient who has capacity must be respected in their decision to refuse even if it risks permanent physical injury or death . There is a clear sense of patient autonomy in this approach. The respect given to bodily integrity and self-determination is given high value in the view of the law and the medical profession, but as we shall later see this is level of respect is not extended to children.
This approach has been adopted from a series of cases regarded a patient’s right to refuse treatment. Most notably, a starting point of which is the voice of Lord Templeman who professes a patient’s right to reject the proposed treatment ‘for reasons which are rational, or irrational, or for no reason’ . This is furthered in Re T in which the Court of Appeal dealt with the conflicting interests of the patient and the state. ‘The patient’s interest consists of his right to self-determination…even if it will damage his health or lead to his premature death. Society’s interest is in upholding the concept that all human life is sacred… It is well established that in the ultimate the right of the individual is paramount’ . The principle of autonomy was furthered in Airedale NHS Trust v Bland , where Lord Goff placed self-determination above the belief of the doctor of what is the patient’s best interests .
A child is any person under the age of 18 . A mature child aged 16-17 is capable of consenting and their consent will be ‘as effective as it would be as if [they] were of full age’ but this is still subject to exceptional circumstances. For any child under the age of 16, there is an assumption that they lack capacity which can be rebutted by establishing that they are Gillick competent. The case of Gillick concerned a mother who sought a declaration that the guidance permitting sexual health information being given to children under 16 without the consent or knowledge of parents was unlawful. The judge dismissed the application and rejected the argument that the guidance adversely interfered with parental rights. This became a landmark decision has it gave more rights and respect to the autonomy of children. The test for establishing whether a child has capacity is if they can demonstrate ‘sufficient understanding and intelligence to understand fully what is proposed’ . Once capacity has been established, that Gillick competent child has the right to consent to treatment; but their consent can be overridden by a person with parental responsibility or by the court parens patriae. Where a child is not Gillick competence, they are afforded the right to have their views heard and their wishes considered ; this ensures that children are fully informed of their condition and treatment plan. This places a duty on the doctor to consider the patient’s wishes and reasons for refusing the proposed treatment.
Re R , adopted a considerably more restrictive attitude and held that no child, even if they are Gillick competence, has the right to refuse medical treatment. The threshold for capacity for minors in life-threatening situations has become so high that satisfying it is rare. Ward J held that for a child to be competent to refuse, they must understand the manner of their death and the extent of their own and their family’s suffering, simply understanding that they will die is insufficient. The test of capacity for children in life-threatening situations has increased so much so that finding a child to be Gillick competent is rare. Ward J held that for a child to be competent, they must understand the manner of their death and the extent of their own and their family’s suffering, understanding that they will die is insufficient . The BMA has recapitulated the current legal approach: ‘where a competent young person refuses treatment, the harm caused by violating a young person’s choice must be balanced against the harm caused by failing to treat. In these cases, the courts have said that children and young people have a right to consent to what is being proposed, but not to refuse it if this would put their health in serious jeopardy. ’
This asymmetry is clear in rights between adults and competent children by the varying degree of competence needed to comprehend life ending situations. It appears as though the judiciary views that the more consequential the refusal, the higher the level of competency required; thus, equating autonomy with a fluctuating competency threshold is difficult.
Re R concerned a child who refused to take antipsychotic medication. It was deemed that the illness made R’s competency sporadic. The court held that the inconsistency in competence made the test inappropriate and ordered that R’s treatment is to be ordered in accordance with R’s best interests as provided for by the Children Act 1989. Farquharson LJ: ‘the Gillick test is not apt to a situation where the understanding and capacity of the child varies from day to day according to the effect of her illness’ This approach was followed in Re W where the refusal of a 16-year-old patient suffering from anorexia nervosa was overridden. However, the obiter dictum of Lord Donaldson recognises the importance of patient autonomy and cautions against dismissing a person’s freedom in deciding treatment: ‘no minor… has power [to refuse treatment] … Nevertheless, such a refusal is a very important consideration in making clinical judgments and for parents and the court in deciding whether themselves to give consent. Its importance increases with the age and maturity of the minor’ .
Arguments Supporting the Current Approach
A patient’s refusal of treatment where the benefit: harm ratio favours harm, may necessitate a more stringent standard of patient competence. This may explain why a Gillick competent child’s refusal may be overturned. Adult patients have more life experienced and so understand the value of life and therefore are arguably better equipped to weigh the benefits and disadvantages of their choice and the long-term effects of it. Whereas a child may only understand the treatment proposed and the situation they are in but may not be able to comprehend the long-term effects of their situation and the proposed treatment. Levy explained that in such tense situations, the cognitive resources of a patient is at ‘low ebb’ . Hence arguable children who are already in the cognitive developmental stage are more vulnerable and incapable of decision making. Adolescence is a period in life where autonomy development is gradual and as a child’s autonomy grows the paternalistic protection bestowed to them diminishes at the same rate .
The sanctity of life argument can be raised; which is a moral conviction which contends that all must be done to protect and preserve life. Some may argue that a child is yet to understand this and whereas an adult who understands how the world works does have a better understanding of it; therefore, Gillick competence children should not be entitled to the same right to refuse treatment as adults. This is similar to the Hippocratic Oath, where the core principle of the oath is to never harm patients and cure them . Allowing a child to refuse life-saving treatment goes against these principles, justifying the disregard of a child’s competence.
A consequentialist, who views morality as maximizing human welfare, would also support the current approach. Consequentialism is a quantitative approach which assesses the outcome of an action rather than the action itself. Thus, it would be argued that the outcome of saving a life as more beneficial than respecting autonomy. This is furthered by the virtue ethics argument. Virtue ethics considers what would constitute being virtuous in any given situation rather than whether an act, in general, is permissible. It also discounts autonomy as being an absolute and overriding principle. Therefore, from a virtuous aspect, it can easily be argued that invading a child’s bodily integrity to save their life is justifiable and good.
However, a counter to the above points is that they are not extended to adults. Why should a child’s life be held to be of more value than an adult? These ethical considerations and the HRA do not distinguish between adults and children, yet the law does. Perhaps this can be defensible by viewing child as the future generation and so their long-term interests are more valuable.
Arguments Against the Current Approach
Beauchamp’s and Childress’ principalism is a biomedical ethic which alone can justify afforded the same right to refuse for adults to Gillick competent children. It is made up of four fundamental principles. The first is autonomy which involves self-governance, liberty, privacy and freedom of choice. We have already seen arguments which do not favour autonomy in children. But forcing treatment upon a child to save their life justify such violation. There magnitude of uncertainty and risks associated with treatment demands that being subjected to them should be the patient’s choice alone. The principles of beneficence and non-maleficence are concerned with acting for the benefit of others and a duty to above all do no harm, respectively. Dismissing a child’s refusal can be psychologically and emotionally damaging to them for their bodily integrity is violated and (if the treatment does not go as planned) are suffering from consequences which they did not accept the risks of. However, a counterpoint is that in overriding their refusal, the child’s family is saved from the harm of losing a loved one. The final principle is justice which requires like cases to be treated alike. The law and professional guidelines do not treat like cases alike, for the rights afforded to patients differ simply owing to a difference in the patient’s age; highlighting the discriminatory aspect of the approach.
The HRA 1998 affords the right to be protected from discrimination. As can be seen, the difference in the presumption of capacity is due to the categorisation of age, raising the defence of Article 14. Even though the presumption of incapacity can be rebutted by satisfying the Gillick test, the threshold is too high to reach in terms of a refusal of treatment. The protection from discrimination against age is also provided for in the MCA 2005 which states that a lack of capacity cannot be established merely by reference to age . Furthermore, the NHS Constitution does not distinguish between adult and child patients in stating that any patient has the right to accept or refuse treatment given that you have the capacity to do so. On face value, this extends the right to refuse treatment to Gillick competence children.
Moreover, the HRA also affords the right to ‘respect for private and family life’ which protects autonomy interests. However, this is not an absolute right as there is a proportionality test attached to it; but it can be raised in arguments that Gillick children should be given the same right to refuse as adults. The purpose of the Gillick test was to allow children who had the ability to understand the proposed treatment and make an intelligible decision about their treatment to decide for themselves, as adults do. Ignoring a Gillick child’s refusal interferes with their private and personal life. This can be rebutted by the positive on a state to protect a life ; whereby it may be justifiable to infringe the Article 8 right to safeguard the patient’s life as long as do not create more harm than not receiving treatment would have.
Another viewpoint which could be used to argue for and against allowing Gillick competent children the same right to refuse treatment as an adult is the deontological perspective. Deontology has two main focuses: autonomy and motivation. A deontologist views autonomy as paramount and would argue that a child’s autonomy must be respected, just as an adult’s autonomy would be. The second focus is on the motivation of an action. Kant suggests that it is not the action which is determinative of whether it is morally good or bad, but the motivation of the individual is the determining factor. For example, giving money to charity is a good deed, however, if a person does this so that they can go to heaven when they die, they are deemed to be a bad person. This is because the motivation behind it is self-preservation, rather than giving money to charity simply because it is your duty to help others. In this context, a doctor could argue that although the interference to a child’s autonomy is bad, their motivation to save a life counters this bad act into being good.
Conclusively, there are numerous conflicts between the law, professional medical guidance and ethical considerations; thus, suggesting that the current approach is not favourable, and a new approach may be more appropriate. Harbour who also recognises these conflictions suggests that the MCA’s presumption of capacity should be extended to children from the age of 16 and that the Gillick rebuttable be available for children aged 10-16. The fundamentality of autonomy justifies a different approach to better protect the rights of children. An alternative would be to use Harbour’s idea but attach a caveat to the presumption of capacity in severe life-threatening situations, whereby there is another, slightly higher threshold to satisfy. This will afford autonomy, respect of human rights whilst ensuring the child’s long-term interests are also protected. While this does not deplete the entire discriminatory and conflicting approach to the right to refuse, it does better adapt pivotal bioethics without departing much from legal and professional ideals.