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Law and Nursing

Introduction to Children and Refusal of Medical Treatment

Australian law is an amalgamation of statute law and common law. Statue law meaning Acts, Regulations that are enacted by the Parliament and common law are what is decided by the Courts to be used as precedents in further cases. In all of the Australian States and Territories, except South Australia (SA) there is no law to decide that can a child consent on his own to make a decision about himself to undergo any medical treatment. Everywhere common law is applicable. Therefore under common law, any child below the age of 18 years can legally consent on his behalf to have any medical treatment. This is only possible if the child is competent enough to do so, or else parental consent becomes essential[1].Consent is an essential element not just in a legal world but also in the medical world as well. Informed consent is a process where a patient makes a decision which is not being coerced or be made under any pressure. It is a voluntary decision where the patient is aware of the medical process that he might go through while his treatment is undergone and the potential risks as intimated by the practitioner[2]. Valid consent is a situation where a patient-

  1. Consents to the treatment voluntarily
  2. Where the consent is provided by the patient who is lawfully obligated to give to
  3. The patient is given adequate information related to the treatment and the potential risks for them to evaluate all their options

The Marion’s case[3]is a good example of consent. Here a 13-year-old girl, who lived with her parents, was concerned about her health-related to fertility control and menstrual management. For this, her parents applied to the Family Court of Australia where they sought consent for hysterectomy and ovariectomy for Marison, which went to High Court of Australia. It was held that where a child is not legally competent enough to decide for herself that so the issue that stands is whether the parents are entitled to carry out such decision. If the court feels that the parents are not entitled to decide that, then the court must decide that in the best interest of the child. Moreover, it was held that sterilization will be the last resort and or an alternative way if all the possible options are exhausted[4].

With the change in time, the capacity of young people to consent for their treatment has changed. People/children below the age of 18 years are considered to be minor as per Australian law. However, these minors are eligible to make their medical decisions, independent from their parents will, in a lot many situations[5]. It is a stated fact that children below the age of 14 years have to have the consent of their parents or any guardian to undergo any medical treatment. But there has an alteration in this that if a child could prove himself to be beyond his age that he is mature enough to understand his situation and decide for himself, then he is exempted to have any consent from his parents or guardians. For this, the health practitioner must make an assessment judging the instances of whether the child is mature enough from his age to decide for himself and understand what is proposed to him.

Ethical Decision-Making Framework for Abdul

The legal age for consent for medical treatment in Australia is 18 years. However, if anyone who is below this age can also consent to if he is mature enough to do that. This common law principle is based on the 1986 House of Lord's judgement, Gillick v Wisbech Area Health Authority.[6]the issue, in this case, as can any practitioner give any contraceptive advice or any recommend any medicines to any patient who is below the age of 16 years, without the knowledge and consent of her parents. The Department of Health and Social Security had advised that any girl below the age of 16, could be given a contraceptive pill, without her parent's knowledge or consent only if they are to be acting in good faith to protect the patient. Mrs Gillick, a mother of five daughters had appealed to the court to render this judgement unlawful and parents have a right to know about their children. Giving medical practitioner liberty to give them pills for contraception is a violation of their parental rights. The court rejected her appeal and held that if a child is able to understand the nature of the treatment and what is he entering into, so that means she is mature enough to decide what is right and wrong for him. In Australia, a similar judgement was held in Marion’s case.

As stated above few states of Australia like New South Wales (NSW) and South Australia (SA) have enacted legislation to describe the medical treatment of children. In NSW, there is Minors (Property and Contracts) Act 1970 gives guidelines for medical treatment and dental treatment of children. Section 49 of the Act states any medical practitioner who provides treatment to a child with his consent 14 years or above, can take a plea of defence of assault or battery. This Act does not give any information or defence to the medical practitioner if there is a conflict of consent between parents and children[7]. In SA, The Consent to Medical Treatment and Palliative Care Act 1995, entails the guidelines for the medical practitioner and dental practitioners. It says that a child of 16 years or above can consent for his own medical treatment like an adult. Anyone below 1 year can consent too if[8]-

  1. The medical practitioner is confident enough that the child had understood the nature, consequences and risks of the treatment and that the treatment is in the best interest of the child.
  2. This observation must be verified by some other medical practitioner who had examined the child personally before the treatment.

The three levels of ethical decision-making framework as laid by McDonald and others in his work.[9] The decision-making framework is about three steps which discuss the ethical and legal principals to decide any case. 

Step 1

Identifying all of the issues in the given case study

In the given study, Abdul is a 15-year-old child who had been diagnosed with a rare malignant blood condition, earlier. He is a likeable person and is considered to be mature from his age. I work in children's haematology/oncology department at the Women's and Children's Hospital in Adelaide, South Australia. I am well known for Abdul and his condition. He recently visited again showing there-emergence of the previous conditions. He came to the hospital with his parents and they had recommended a new treatment that is now available. While having a conversation with me, he told me that his parents are not interested in him undergoing that treatment. They are more inclined towards the risk that pertains in the treatment. But Abdul is quite determined to be cured and he is sure that he is mature enough to take that risk.

McDonald's book had three levels to this Step 1. For identifying the ethical issues one needs to gather all the relevant information. There are 3 types of ethical issues-

  1. Ethical Violation

It means when a serious ethical violation happens voluntarily in any professional practice. Like it would be unethical is a child-like Abdul is refused to pursue the treatment.

  1. Ethical Dilemma

Situations which could be morally opposing but legitimate enough to solve the dilemma. Like in most countries and even in other states of Australia, parental consent is essential if a child is not of age. But now if a child is mature enough from his age then he can decide for himself what is good or not. So morally it could be wrong, but ethically it is not

  1. Ethical Distress

Moral distress like any guilt, concern etc from any doing or non-doing. If Abdul is not given the treatment and refused on the grounds that his parents are against it, his condition shall deteriorate eventually and could be a distressful condition for his parents and medical practitioners.

Judging the step 1 credentials, so the fact that Abdul can be cured, but due to his parental consent he might be refused to not undergo the treatment and it is risky. He is adamant enough to have the treated and be treated as he understands the predicament of the situations. Hence the issue that stands before me is whether he should be allowed to have the treatment without his parent's consent or whether he should not be allowed to do so.

Step 1 also talks about who is involved in the issue. So here, Abdul and his parents and the hospital staff are involved. The study is about Abdul wanting to be cured, but his parents do not want that as the treatment is risky and they fear for his life. The hospital is the deciding party to decide whether they should go by Abdul or his parents and how they in future do not face any legal implications for the same.

Step 2

Evaluate the Issues- What Ethical /Legal Principles are Involved in the Issue?

It is important to understand the legal issues or ethical issues that are a hindrance in the issue. The issues that stand in front of us, is the consent and the parental rights[10].

  1. Consent

Consent is to be given by a person who is competent enough to give it. This is a general/common law. The essential part of any contract is that the party is competent enough to decide what a contract is. Similarly, any treatment to be undergone is a contract between the hospital and the patient. If the patient is not of a certain age, then how can the contract be binding. If a patient does not have his parent's knowledge and consent so then too he is not legally eligible to enter into a contract. Just as discussed before, and informed consent is essential for a medical practitioner to give treatment. If a patient is not competent then his parent or any legal guardian must give the consent. The health practitioners are concerned about the situation where a patient does not have either of them, then how should they treat. They are unsure that if they allow such operations, then legally where do they stand. Also morally they are unsure that should they involve parents consent to be of utmost importance in their ward's treatment. Just like in Gillick Case, where Mrs Gillick was concerned that not having parent’s consent would lead to infringement of their rights.

  1. Parental Rights

Parents being the lawful guardian of their children and obliged to the well-being of them. They are considered to be the ultimate closest of all to children and who shall work in the best interest of their children. Generally, it should be that if a child has to undergo any treatment, so parents consent is essential, no matter what the age of the child. So if a child is below the age of 18 years, so his parents are only eligible to consent to his treatment. But the issue is when the child wants something else and the parents want something else. Like, in this case, Abdul wants to be treated but his parents do not want him to be treated. Then in this what can a medical practitioner do? This is a violation of the common law doctrine on consent and ethical right of the parents to have a say in the well being of their children.

Step 3

Action: What Should be Done?

This step involves the solution to the issues that were raised in the Step 2[11]. Thankfully, the legislature of Australia had devised a way out for such inconsistency. As per Section 6 of the Medical Treatment and Palliative Care Act 1995 (SA)[12], anyone who is 16 or above years old, can make decisions about his or her own medical treatment just like an adult does. This means such a person has the privilege to consent to treatment and also refuse it. However, there is a proviso to this. A child below 16 years can also consent to treatment if

  1. The medical practitioner is sound enough to understand the nature, consequences and risks of the treatment and that treatment is in best-interest and well-being of the child
  2. According to Section 12, of the same act, this testimony is corroborated by at least one other medical practitioner who had personally examined the child before his treatment.

If there is any emergency treatment that has to be done to meet the ‘imminent risk to life and health’ and the patient is not able to give his consent, then such treatment could be done without his consent and if 16 or above years old, then he has a right to refuse the treatment as per Section 13.

For our given case, where Abdul is 15 years old, so he has the liberty to decide that whether he wants to have any treatment that is available and that could cure him. For this, he can take a plea under the Medical Treatment and Palliative Care Act 1995, where section gives him the authority legally to cure himself without his parent's consent. However, for his the practitioner has to explain to him nature, consequences and risks involved in the operation and that his maturity must be corroborated by some medical practitioner who is ready to operate him. There are decided precedents for this like the Gillick’s case and the Maron’s case wherein the court held a similar opinion. Since this based on SA, so the above-mentioned is suffice to show the legality of the act.

Conclusion on Children and Refusal of Medical Treatment

In the given facts, Abdul is legally eligible to have treatment without his parent's consent. He does not need to convince his parents or have their consent and legally he is liable to have a treatment on his own. Since the given facts are based in SA, so the jurisdiction of the case lies there. The Medical Treatment and Palliative CareAct of 1995 is applicable wherein under Section 6 he can consent to his treatment. The hospital however just have to explain to him nature, consequences and risks involved in the treatment and that one other doctor to testify that he had understood the nature of the treatment.

The hospital staff is familiar with Abdul and they know that how much mature and a person of high intellect he is. Therefore he is not going to face any complications in proving that he is competent enough to understand the nature of the treatment and that he shall have no need to convince his parents for the same.

References for Children and Refusal of Medical Treatment

Bird S . (2005). Can children and adolescents consent to their own medical treatment? Australian Family Physician, 34(1/2), 73-74.

RACGP. (2020) Informed consent. Retrieved from https://www.racgp.org.au/download/Documents/PracticeSupport/informedconsentinfosheet.pdf

Australian Human Rights Commission. (2020). The Sterilisation of Girls and Young Women in Australia: Issues and progress. Retrieved from https://humanrights.gov.au/our-work/sterilisation-chapter-one

Lennings N. (2013). Children and refusal of medical treatment: In urgent need of reform. Journal of Law and Medicine. 21(1), 122.

Bird, S. (2011). Consent to medical treatment: The mature minor. Retrieved from https://www.racgp.org.au/download/documents/AFP/2011/March/201103bird.pdf 

McDonald, F. & Then, S.-N. (2019). Ethics, Law & Health Care: A Guide for Nurses and Midwives (2nd ed.). Macmillan International; Red Globe Press p. 239.

Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

Gillick v Wisbech Area Health Authority [1986] 1 AC 112.

[1] Bird S . (2005). Can children and adolescents consent to their own medical treatment? Australian Family Physician, 34(1/2), 73-74.

[2] RACGP. (2020) Informed consent. Retrieved from https://www.racgp.org.au/download/Documents/PracticeSupport/informedconsentinfosheet.pdf

[3] Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

[4] Australian Human Rights Commission. (2020). The Sterilisation of Girls and Young Women in Australia: issues and progress. Retrieved from https://humanrights.gov.au/our-work/sterilisation-chapter-one

[5] Lennings N. (2013). Children and refusal of medical treatment: In urgent need of reform. Journal of Law and Medicine. 21(1), 122.

[6] Gillick v Wisbech Area Health Authority [1986] 1 AC 112.

[7] Bird, S. (2011). Consent to medical treatment: The mature minor. Retrieved from https://www.racgp.org.au/download/documents/AFP/2011/March/201103bird.pdf 

[8] Ibid 7

[9] McDonald, F. & Then, S.-N. (2019). Ethics, Law & Health Care: A Guide for Nurses and Midwives (2nd ed.). Macmillan International; Red Globe Press p. 239.

[10] Ibid 9

[11] Ibid 9

[12] Section 6 of the Medical Treatment and Palliative Care Act 1995 (SA)

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Law Assignment Help

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