- Email: [email protected]
Consent for treatment of minors in wardship
564
After the CARICOM decision the Ministers requested PAHO to formulate a plan of action. PAHO’s three-partstrategy was, first, to strengthen the existing national immunisation programmes to ensure full vaccination against measles for all infants; second, to conduct a mass immunisation campaign (held in May) to vaccinate all children age 1-15 years irrespective of previous vaccination status, to interrupt all chains of transmission; and, third, to develop a sensitive measles surveillance system to identify suspected cases, investigate them quickly, and initiate control measures. This surveillance system is being developed and the 18 countries are expected to start weekly reporting on Sept 1. The May campaign was a striking example of the strength of multilateral cooperation. Although each of the participating countries was free to develop its own immunisation policy, social mobilisation campaign, and vaccine delivery system, all were still very much a part of one programme, which received technical help from PAHO. Strong support, both financial and in social mobilisation, was given by the Agency for International Development of the USA, the Canadian Public Health Association, and Rotary International, Canada. Ministries of Health staff, Expanded Programme on Immunisation managers from the countries, and technical advisors from PAHO met three times in 2 years to plan the campaign. A week-long workshop was held in July, 1990, to develop plans for social mobilisation and promotion. The campaign was then inaugurated at a Caribbean-wide press conference on April 22, 1991. Public support for the programme was strong, with good cooperation coming from schools, parents, local level health staff, and the media. "Mop up" operations continued through June and July, and considerable numbers of children missed during May have since been immunised. The mass immunisation campaign has been successful but measles eradication will require continued commitment on the part of the Caribbean nations, and continued support from technical and donor agencies. It is heartening to see so many countries work together for the sake of the health of their children.
Henry Smith Chris Beyrer Leroy Benons James Hospedales
Medicine and the Law Consent for treatment of minors in wardship Cases involving the sterilisation of incapable minors demonstrate that in wardship cases the High Court has greater powers to consent to irreversible and serious treatment on the ward’s behalf than do the parents or the ward herself. However, the court’s wardship over minors (under 18) may also be invoked when the ward is a rational teenager capable generally of giving consent to treatment in circumstances where his/her decision to undergo or refuse medical treatment is at odds with parents or guardians. The question of how far parents, guardians, and/or the court in wardship may override the minor’s decision and in what circumstances was discussed by the Court of Appeal on July 24. The Family Law Reform Act 1969 provides that a child aged 16 may consent to treatment as effectively as if of full
to a child’s right to refuse made clear in Gillick v West Similarly, Norfolk and Wisbech Area Health Authority, children under 16 may legally consent to medical treatment provided they have the intelligence and maturity to make up their own minds and have achieved a sufficient understanding and intelligence to understand fully what is proposed. Refusal may be another matter. But what if the child is under 16 but "Gillick competent" or is 16 or 17 and statutorily competent to consent, but the parents/guardians or court in wardship do not agree with the child or with each other? Can parents and/or court give valid consent to medical treatment in the face of a Gillick-competent child’s expressed refusal? Can the court in wardship override both parents and child? So far only two such cases are believed to have come before the English High Court; both involved 15-year-olds. In one a Jehovah’s Witness, with the support of his parents, refused consent to a blood transfusion. He was made a ward of court. On Sept 21,1990, WardJ held that the boy was not Gillick competent and consented to the transfusion as in the boy’s best interests. On July 9,1991, in the case of In re R (A Minor, Medical Treatment), Mr Justice Waite, consenting to treatment on behalf of a 15-year-old ward who had refused psychiatric treatment, based his decision on the grounds that she was not Gillick competent. Had he thought she was, neither he nor her parents/guardian could have overridden her wishes, he added. The Court of Appeal, upholding the finding that R was not Gillick competent, said that the judge’s interpretation of the law on the consent of minors was wrong. A minor’s consent and refusal to have treatment could be overridden in his or her best interests.
age. It makes treatment.
no
reference as was
R was born on Sept 15, 1975. The family had been known to social services for over 12 years and at one time she had been on an at-risk register as a possible victim of emotional abuse, as a child "who gave rise to anxiety because of poor and sometimes violent parental relationships". On March 8, 1991, after a fight with her father, she went into voluntary care with emergency foster parents and then at a children’s home. She often seemed flat and expressionless and her resistance to being touched by anyone and her hallucinations and sometimes suicidal thoughts prompted referral to a child psychiatrist. In May, 1991, the mother cancelled the voluntary care order. R returned home but stayed only a few minutes and ran off. She was found and returned to the children’s home; she ran off again and was later found on a bridge over the Thames threatening suicide. Her behaviour became increasingly disturbed and, psychiatric assessment led to the recommendation of compulsory admission under the Mental Health Act 1983. She again ran away from the children’s home, and went to her own home where she ran amok, savagely attacking her father and assaulting her mother. On June 2, she was admitted to hospital under section 2 of the 1983 Act, but again absconded to attack her parents, this time in the presence of two psychiatrists and a social worker. While she was in an adolescent psychiatric unit, her behaviour gave considerable cause for concern, and on June 28 a consultant asked the local authority to consent to the girl being given antipsychotic medication. The authority agreed but when R herself rang the duty social worker and spoke for three hours explaining that she did not want or need drugs, the social worker thought she sounded lucid and rational. After consultations within the social services department, consent to treatment was withdrawn. On July 3 a consultant psychiatrist reported that R still required inpatient treatment. The unit would continue to accept responsibility for R only if the whole of its regimen was acceptable to whoever had parental responsibility. The risk was that a fully psychotic state would ensue, with the danger of suicide attempts and other violent and unpredictable behaviour.
Giving the leading judgment in the Court of Appeal, with Staughton and Farquharson LJJ generally
which
565
concurred, the Master of the Rolls, Lord Donaldson offered this guidance:
"(1) No doctor can be required to treat a child, whether by the court in the exercise of its wardship jurisdiction, by the parents, by the child or anyone else." That decision depends upon an exercise of the doctor’s professional judgment, and in that judgment the views of the child increases in importance with the increase in the child’s intelligence and understanding. "(2) There can be concurrent powers to consent. If more than one body or person has a power to consent, only a failure to, or refusal of, consent by all having that power will create a veto." "(3) A Gillick competent child or one over the age of 16 will have a power to consent, but this will be concurrent with that of a parent or "
guardian." (4) "Gillick competence", Lord Donaldson added, is a developmental concept which "will not be lost or acquired on a day to day or week to week basis". Where there is mental disability, that also be taken into account, especially when it fluctuates in its effect. (5) In the exercise of its wardship or statutory jurisdiction, the court "has power to override the decisions of a Gillick competent child as much as those of parents or guardians".
must
Lord Donaldson said that evaluation of "Gillick
competence" involves assessment of mental and emotional age, as contrasted with chronological age, but "even this test needs to be modified in the case of fluctuating mental disability". What was needed was not just the ability to understand the nature of the proposed treatment but a full appreciation of the consequences both of that treatment, in terms of intended and unwanted effects, and the likely consequences of failure to treat. A child whose condition fluctuated from lucidity to one necessitating compulsory admission could not be regarded as Gillick competent, he
said. Lord Donaldson interpreted Lord Scarman’s ruling in the Gillick case as bearing on the parents’ right to determine whether or not a child below the age of 16 will have medical treatment. "The parents can only have a right of determination if either the child has no right to consent... or the parents hold a master key which could nullify the child’s consent." He did not understand Lord Scarman to have been saying that if a child was Gillick competent, the parents ceased to have an independent right of consent. If a Gillickcompetent child refuses treatment but the parents consent, that consent enables treatment to be undertaken lawfully, "but in no way determines that the child shall be so treated. In the case in which the positions are reversed, it is the child’s consent which is the enabling factor and again the parents’ refusal of consent is not determinative". Lord Donaldson considered that the consent of a child between 16 and 18 is no more effective than that of an adult who was incapable of consenting because of a disability. Staughton Ly added that the court had power to override the decision of a competent minor (of whatever age) who was a ward. Neither he nor Farquharson LJ went so far as to agree expressly with the full extent of Lord Donaldson’s conclusions as the concurrent powers of consent and their application outside wardship. This case shows that the jurisdiction of the court is wider than that of parents and that that jurisdiction derives, not from parental rights and responsibilities, but from the delegated performance of the duties of the Crown to protect its subjects. How far doctors may feel comfortable accepting parental decisions against the wishes of a competent child’s refusal outside of wardship remains uncertain. Diana Brahams
Conference Interprofessional cooperation A
multidisciplinary group gathered at the King’s Fund on June 20 to hear an address by Prof Donald Schon (Massachusetts Institute of Technology) and to discuss what is needed to achieve closer working practices in health and social services. The conference was organised jointly by the Centre for the Advancement of Interprofessional Education, the Marylebone Centre Trust, and the Open University. Professor Schon’s thesis, put forward in his book The Reflective Practitioner, is that the competence of professional people lies in their ability to make decisions in complex situations that are unique or involve uncertainty or conflicting claims and values. This fundamental ability is too often taken for granted. It is seldom explored; instead it is viewed as art, wisdom, mystery, separate from science-so ending discussion. But how practitioners perform in such situations deserves serious study and reflection. The problems presented by clients or patients cannot be solved only by the rigid prescriptions that are often taught during professional training. Practitioners who are competent in these unmapped and undervalued areas often know more than they are able to articulate. So what can they find and reveal when they stand back to observe themselves and each other? "I don’t know how I do this. Let me look at what I am doing, Centre, London,
so
that I can describe it and discuss it with others." Both the
efficacy and the quality of professional services would improve if there was greater recognition of the need to reflect on unique problems of this sort and on the way in which they are managed. By sharing such reflection and looking through the eyes of others, practitioners would understand better how to help their clients and patients. There are many areas in which joint decision-making and coordinated action are essentialrehabilitation, health promotion, assessment at home and in hospital, establishment of treatment or management regimens, child abuse. Practitioners would grow in selfconfidence and perform better in their relationship with other professionals. The areas in which they were most competent would stand out. Narrow responsibilities would be seen in a wider context. By sharing knowledge derived in this way, they could relinquish concerns about status, power, or authority, which hover below the surface of most multidisciplinary meetings. These are some of the benefits that emerge when practitioners reflect with colleagues upon what they do-whether inside one profession or between different professions. After Professor Schon’s address, the day was spent in discussions directed towards a conference statement. What are the barriers to cooperation? For practitioners in any profession, time given over to the process of shared learning and reflecting together must compete with the urgent pressures of caring for clients or patients. Even the clarification of meanings is time-consuming-since different professions give different meanings to the same word or use words particular to themselves. The approach proposed may well expose ignorance, uncertainty, or limited competence. When exchanging ideas with members of other professions, one may find one’s values and assumptions under challenge. A reaction of defence easily takes the place of the positive change that might have ensued. Although professions with a clearly defined role and competence are less liable to insecurity, they may be more bound by legal
After the CARICOM decision the Ministers requested PAHO to formulate a plan of action. PAHO’s three-partstrategy was, first, to strengthen the existing national immunisation programmes to ensure full vaccination against measles for all infants; second, to conduct a mass immunisation campaign (held in May) to vaccinate all children age 1-15 years irrespective of previous vaccination status, to interrupt all chains of transmission; and, third, to develop a sensitive measles surveillance system to identify suspected cases, investigate them quickly, and initiate control measures. This surveillance system is being developed and the 18 countries are expected to start weekly reporting on Sept 1. The May campaign was a striking example of the strength of multilateral cooperation. Although each of the participating countries was free to develop its own immunisation policy, social mobilisation campaign, and vaccine delivery system, all were still very much a part of one programme, which received technical help from PAHO. Strong support, both financial and in social mobilisation, was given by the Agency for International Development of the USA, the Canadian Public Health Association, and Rotary International, Canada. Ministries of Health staff, Expanded Programme on Immunisation managers from the countries, and technical advisors from PAHO met three times in 2 years to plan the campaign. A week-long workshop was held in July, 1990, to develop plans for social mobilisation and promotion. The campaign was then inaugurated at a Caribbean-wide press conference on April 22, 1991. Public support for the programme was strong, with good cooperation coming from schools, parents, local level health staff, and the media. "Mop up" operations continued through June and July, and considerable numbers of children missed during May have since been immunised. The mass immunisation campaign has been successful but measles eradication will require continued commitment on the part of the Caribbean nations, and continued support from technical and donor agencies. It is heartening to see so many countries work together for the sake of the health of their children.
Henry Smith Chris Beyrer Leroy Benons James Hospedales
Medicine and the Law Consent for treatment of minors in wardship Cases involving the sterilisation of incapable minors demonstrate that in wardship cases the High Court has greater powers to consent to irreversible and serious treatment on the ward’s behalf than do the parents or the ward herself. However, the court’s wardship over minors (under 18) may also be invoked when the ward is a rational teenager capable generally of giving consent to treatment in circumstances where his/her decision to undergo or refuse medical treatment is at odds with parents or guardians. The question of how far parents, guardians, and/or the court in wardship may override the minor’s decision and in what circumstances was discussed by the Court of Appeal on July 24. The Family Law Reform Act 1969 provides that a child aged 16 may consent to treatment as effectively as if of full
to a child’s right to refuse made clear in Gillick v West Similarly, Norfolk and Wisbech Area Health Authority, children under 16 may legally consent to medical treatment provided they have the intelligence and maturity to make up their own minds and have achieved a sufficient understanding and intelligence to understand fully what is proposed. Refusal may be another matter. But what if the child is under 16 but "Gillick competent" or is 16 or 17 and statutorily competent to consent, but the parents/guardians or court in wardship do not agree with the child or with each other? Can parents and/or court give valid consent to medical treatment in the face of a Gillick-competent child’s expressed refusal? Can the court in wardship override both parents and child? So far only two such cases are believed to have come before the English High Court; both involved 15-year-olds. In one a Jehovah’s Witness, with the support of his parents, refused consent to a blood transfusion. He was made a ward of court. On Sept 21,1990, WardJ held that the boy was not Gillick competent and consented to the transfusion as in the boy’s best interests. On July 9,1991, in the case of In re R (A Minor, Medical Treatment), Mr Justice Waite, consenting to treatment on behalf of a 15-year-old ward who had refused psychiatric treatment, based his decision on the grounds that she was not Gillick competent. Had he thought she was, neither he nor her parents/guardian could have overridden her wishes, he added. The Court of Appeal, upholding the finding that R was not Gillick competent, said that the judge’s interpretation of the law on the consent of minors was wrong. A minor’s consent and refusal to have treatment could be overridden in his or her best interests.
age. It makes treatment.
no
reference as was
R was born on Sept 15, 1975. The family had been known to social services for over 12 years and at one time she had been on an at-risk register as a possible victim of emotional abuse, as a child "who gave rise to anxiety because of poor and sometimes violent parental relationships". On March 8, 1991, after a fight with her father, she went into voluntary care with emergency foster parents and then at a children’s home. She often seemed flat and expressionless and her resistance to being touched by anyone and her hallucinations and sometimes suicidal thoughts prompted referral to a child psychiatrist. In May, 1991, the mother cancelled the voluntary care order. R returned home but stayed only a few minutes and ran off. She was found and returned to the children’s home; she ran off again and was later found on a bridge over the Thames threatening suicide. Her behaviour became increasingly disturbed and, psychiatric assessment led to the recommendation of compulsory admission under the Mental Health Act 1983. She again ran away from the children’s home, and went to her own home where she ran amok, savagely attacking her father and assaulting her mother. On June 2, she was admitted to hospital under section 2 of the 1983 Act, but again absconded to attack her parents, this time in the presence of two psychiatrists and a social worker. While she was in an adolescent psychiatric unit, her behaviour gave considerable cause for concern, and on June 28 a consultant asked the local authority to consent to the girl being given antipsychotic medication. The authority agreed but when R herself rang the duty social worker and spoke for three hours explaining that she did not want or need drugs, the social worker thought she sounded lucid and rational. After consultations within the social services department, consent to treatment was withdrawn. On July 3 a consultant psychiatrist reported that R still required inpatient treatment. The unit would continue to accept responsibility for R only if the whole of its regimen was acceptable to whoever had parental responsibility. The risk was that a fully psychotic state would ensue, with the danger of suicide attempts and other violent and unpredictable behaviour.
Giving the leading judgment in the Court of Appeal, with Staughton and Farquharson LJJ generally
which
565
concurred, the Master of the Rolls, Lord Donaldson offered this guidance:
"(1) No doctor can be required to treat a child, whether by the court in the exercise of its wardship jurisdiction, by the parents, by the child or anyone else." That decision depends upon an exercise of the doctor’s professional judgment, and in that judgment the views of the child increases in importance with the increase in the child’s intelligence and understanding. "(2) There can be concurrent powers to consent. If more than one body or person has a power to consent, only a failure to, or refusal of, consent by all having that power will create a veto." "(3) A Gillick competent child or one over the age of 16 will have a power to consent, but this will be concurrent with that of a parent or "
guardian." (4) "Gillick competence", Lord Donaldson added, is a developmental concept which "will not be lost or acquired on a day to day or week to week basis". Where there is mental disability, that also be taken into account, especially when it fluctuates in its effect. (5) In the exercise of its wardship or statutory jurisdiction, the court "has power to override the decisions of a Gillick competent child as much as those of parents or guardians".
must
Lord Donaldson said that evaluation of "Gillick
competence" involves assessment of mental and emotional age, as contrasted with chronological age, but "even this test needs to be modified in the case of fluctuating mental disability". What was needed was not just the ability to understand the nature of the proposed treatment but a full appreciation of the consequences both of that treatment, in terms of intended and unwanted effects, and the likely consequences of failure to treat. A child whose condition fluctuated from lucidity to one necessitating compulsory admission could not be regarded as Gillick competent, he
said. Lord Donaldson interpreted Lord Scarman’s ruling in the Gillick case as bearing on the parents’ right to determine whether or not a child below the age of 16 will have medical treatment. "The parents can only have a right of determination if either the child has no right to consent... or the parents hold a master key which could nullify the child’s consent." He did not understand Lord Scarman to have been saying that if a child was Gillick competent, the parents ceased to have an independent right of consent. If a Gillickcompetent child refuses treatment but the parents consent, that consent enables treatment to be undertaken lawfully, "but in no way determines that the child shall be so treated. In the case in which the positions are reversed, it is the child’s consent which is the enabling factor and again the parents’ refusal of consent is not determinative". Lord Donaldson considered that the consent of a child between 16 and 18 is no more effective than that of an adult who was incapable of consenting because of a disability. Staughton Ly added that the court had power to override the decision of a competent minor (of whatever age) who was a ward. Neither he nor Farquharson LJ went so far as to agree expressly with the full extent of Lord Donaldson’s conclusions as the concurrent powers of consent and their application outside wardship. This case shows that the jurisdiction of the court is wider than that of parents and that that jurisdiction derives, not from parental rights and responsibilities, but from the delegated performance of the duties of the Crown to protect its subjects. How far doctors may feel comfortable accepting parental decisions against the wishes of a competent child’s refusal outside of wardship remains uncertain. Diana Brahams
Conference Interprofessional cooperation A
multidisciplinary group gathered at the King’s Fund on June 20 to hear an address by Prof Donald Schon (Massachusetts Institute of Technology) and to discuss what is needed to achieve closer working practices in health and social services. The conference was organised jointly by the Centre for the Advancement of Interprofessional Education, the Marylebone Centre Trust, and the Open University. Professor Schon’s thesis, put forward in his book The Reflective Practitioner, is that the competence of professional people lies in their ability to make decisions in complex situations that are unique or involve uncertainty or conflicting claims and values. This fundamental ability is too often taken for granted. It is seldom explored; instead it is viewed as art, wisdom, mystery, separate from science-so ending discussion. But how practitioners perform in such situations deserves serious study and reflection. The problems presented by clients or patients cannot be solved only by the rigid prescriptions that are often taught during professional training. Practitioners who are competent in these unmapped and undervalued areas often know more than they are able to articulate. So what can they find and reveal when they stand back to observe themselves and each other? "I don’t know how I do this. Let me look at what I am doing, Centre, London,
so
that I can describe it and discuss it with others." Both the
efficacy and the quality of professional services would improve if there was greater recognition of the need to reflect on unique problems of this sort and on the way in which they are managed. By sharing such reflection and looking through the eyes of others, practitioners would understand better how to help their clients and patients. There are many areas in which joint decision-making and coordinated action are essentialrehabilitation, health promotion, assessment at home and in hospital, establishment of treatment or management regimens, child abuse. Practitioners would grow in selfconfidence and perform better in their relationship with other professionals. The areas in which they were most competent would stand out. Narrow responsibilities would be seen in a wider context. By sharing knowledge derived in this way, they could relinquish concerns about status, power, or authority, which hover below the surface of most multidisciplinary meetings. These are some of the benefits that emerge when practitioners reflect with colleagues upon what they do-whether inside one profession or between different professions. After Professor Schon’s address, the day was spent in discussions directed towards a conference statement. What are the barriers to cooperation? For practitioners in any profession, time given over to the process of shared learning and reflecting together must compete with the urgent pressures of caring for clients or patients. Even the clarification of meanings is time-consuming-since different professions give different meanings to the same word or use words particular to themselves. The approach proposed may well expose ignorance, uncertainty, or limited competence. When exchanging ideas with members of other professions, one may find one’s values and assumptions under challenge. A reaction of defence easily takes the place of the positive change that might have ensued. Although professions with a clearly defined role and competence are less liable to insecurity, they may be more bound by legal