Case studies of Concent for medical treatment
Throughout this piece of work, Estelle shall be referred to as ‘E’; Rudolf Roksoff shall be referred to as ‘R’; Dr North shall be referred to as ‘Dr N’; Mr. South shall be referred to as ‘Mr. S’; Freya shall be referred to as ‘F’ and; Prof. West shall be referred to as ‘Prof W.’ The possible claims have been separated under headings which have been underlined throughout the piece.
1] E v Dr N
Prima facie, there is a legal presumption that E, being over the age of 18 years, is of sufficient capacity to consent or refuse such medical treatment. However, if an adult is suffering from mental incapacity or disability and the medical treatment in question is necessary, then this presumption may be rebutted.
We are told that E ‘is still rather confused’ as a result of the injuries she has suffered to her head and face, which suggests that E may well be suffering from a degree of mental incapacity. On top of this, the basis of her refusal to undergo the surgery ["I am Cinderella in the ballet; my fairy godmother will make me beautiful again] indicates that E is in a delusional mental state, and that her refusal is not based on the fact that she does not want the surgery in question, rather that she does not deem it necessary, as the same ends will be achieved without surgery by her ‘fairy godmother’.
The first issue to address is therefore whether or not Dr N is legally permitted to conduct the plastic surgery, even though E herself has refused such treatment, on the basis that E has insufficient capacity to consent.
N.B. It should be noted that E’s mother’s consent is irrelevant to Dr N’s decision; Dr N cannot rely on the mother’s consent, as there is no proxy consent for adults in English law. This was established in the case of RE AG 1995 .
The case of Re C sets out a three stage test which should be used to determine whether or not a particular adult [i.e. 18 years or over] patient has the necessary capacity to consent or refuse treatment: A patient has capacity to consent / refuse medical treatment if he/she can: 1] comprehend and retain treatment information; 2] believe it, and; 3] weigh it up to arrive at a choice.
There is no indication that E was not able to comprehend and retain the treatment information provided to her by Dr. N. Likewise, there is no indication that E did not believe Dr N’s diagnosis and treatment suggestion. Whether or not E was in a fit state of mind to be able to weigh up all the factors relevant to the decision and arrive at a choice is a matter of expert psychological assessment of E’s state of mind, and it should be noted that E will not necessarily fail simply because she is delusional, although the fact that her delusion was responsible for the fact she has refused treatment does make it an important feature of the assessment evaluation. In Re C, the patient in question believed that he was a world-renowned Doctor, but the courts held that “his mental illness did not render him incapable of making a decision about his medical treatment.”
Whether or not the above test is satisfied by E’s state of health is a matter of expert testimony, but if it is deemed that she is incapacitated, surgery may only proceed if it can be justified on grounds of necessity, implied consent, or best interests.
The treatment in question is not necessary to E’s survival. Neither is it really necessary for the pursuance of her dancing career, as we are told she can dance just as well even with the disfiguration of her face. It may be true that a dance career would be much harder to pursue without the good looks to accompany it, but it is doubtful whether this degree of ‘necessity’ would be sufficient to allow Dr T to treat E under the common law rule of necessity, as per Re T [1993] . Dr T may well have to seek judicial approval before proceeding with the operation, as per F v West Berkshire HA [1990] .
As for ‘implied consent’, there is no doubt here that justification cannot be found. E has openly refused the treatment.
Dr T might argue that the surgical procedure is in E’s ‘best interests’. If Dr N applied to the court, then a welfare test would be applied, as per Re S (Sterilisation: Patient’s Best Interests) [2000] . The emotional, psychological and social benefit to E would be considered in accordance with the approach adopted in Re Y (Mental Patient: Bone Marrow Transplant) [1997] . It may well be argued that in light of the fact that the surgery is urgent [in that Dr S has advised that it be conducted as soon as possible in order to ensure the desired result], that Dr N must conduct it as it is in E’s best interests to remove her scarring so that she may be able to pursue her career as a dancer without the adverse social or psychological effects of being disfigured. The decision is for the court to decide; a balance sheet of the pros and the cons will be prepared along with a calculation of the percentage of each of them occurring [Re A (Male Sterilisation) [2000]]. In our case, I would conclude that Dr N may be permitted by the Courts to conduct the procedure in E’s best interests in light of the fact that her refusal of treatment must be ignored due to her lack of sufficient mental capacity to consent to such treatment.
2] F’s legal guardian v Dr N
F’s legal guardians may wish to commence a legal action against Dr N for not informing them of her decision to prescribe their 13 year old daughter [a minor at law] the contraceptive pill.
The case which would be instructive to this claim is the case of Gillick v West Norfolk and Wisbech Area Health Authority [1985] . F is definitely a minor at law, and as such is under her parent’s control, but this does not necessarily mean that her consent for medical treatment, or in our case a prescription of contraceptive pills, is invalid, as it depends upon the maturity of the particular child in question. Lord Fraser said that the degree of parental control varied according to the child’s understanding and intelligence, and Lord Scarman further opined that parental rights only existed so long as they were needed to protect the property and person of the child. He said: “As a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to enable him to understand fully what is proposed.” It is Lord Scarman’s test which is generally considered to be the applicable test of ‘gillick competency’.
From the facts we are told that F told her teacher that “I told him I couldn’t really see what [babies] had to do with me, as you need to be married to have babies and I’m way too young to be married.” This clearly indicates a lack of understanding and intelligence; F does not understand how babies are made and therefore neither is she able to understand how the contraceptive pill works or provide informed consent to receiving such a prescription.
From the facts we are told that all the information Dr N gave to F was “don’t worry, you haven’t done anything yet, but I think you should take these pills in case, just to be safe.” This is clearly not a sufficient degree of information, and this will certainly weigh against Dr N in any action against her by the parents of F.
Dr N is under a duty to assess whether she thinks F to be ‘Gillick competent’. We are told that F told the doctor of her misconceptions about how children are made [, "I'll tell you the same thing I told the doctor: My teacher said that dance and babies don't go together. I told him I couldn't really see what that had to do with me, as you need to be married to have babies and I'm way too young to be married.”], and in my opinion this information should have lead Dr N to the conclusion that F was not ‘sufficiently understanding or intelligent’ to give consent to taking the contraceptive pill.
Criminal prosecution against Dr N
After the teacher learned of F and R’s ‘special’ relationship, the police should of course have been notified, as F is under the age of sexual consent, and yet it would appear that R has been engaging in sexual intercourse with her. If this does prove to be the case, R might be charged with statutory rape and sentenced accordingly.
The issue that I would like to discuss her however is whether or not Dr N should have notified this matter to the police. It is quite possible that by not notifying the police, R has been able to have sex with F on many more occasions, and so we must see if we can establish a duty on Dr N to have informed the police.
Clearly Dr N did not believe that R and F had yet had sex, as she stated to F, when prescribing the pills, “don’t worry, you haven’t done anything yet, but I think you should take these pills in case, just to be safe.” Therefore whilst Dr N does not know of R’s sexual crime and therefore cannot be deemed to have intentionally withheld the information, she might be deemed reckless as to the same, as any reasonable person would have suspected what R was up to.
Guidance states that a doctor should breach confidentiality if it relates to a serious crime . A doctor is also under obligation to breech confidence if the welfare of children is a stake . Clearly therefore Dr N should have informed the relevant authorities in this case.
Tags: 18 years, adult, legal presumption, medical treatment, mental incapacity, necessary capacity
