Medical Law Essay Example

Medical Law Essay Example Medical Law Paper Medical Law Paper The case presents parents disagreeing with each other over their 12 year old minor receiving continued chemotherapy for his leukaemia. While boy and mother are against the treatment, father and doctors of the trust want to continue treatment so that the boy would survive for one more year. The principle the doctor should follow is the ‘best- interests’ of the patient regardless of the parents’ conflicting stance. Even if both the parents want to discontinue treatment, the doctor should not ignore best-interests principle since the patient is incompetent to decide. As there is no urgency if treatment is continued, the doctors would be well advised to refer the matter to ethical committee in the hospital for ultimate reference to Court’s appropriate orders. At least until the court is approached, the boy’s treatment should continue. In England, consent or refusal to treatment by adults is specifically provided for only in Mental Health Act obviously due to mental incapacity. For Children, Family Reform Act 1969 and Children Act 1989 would apply. Children who are 16 or 17 years old can be treated as adults for consent purposes, though it would not apply to refusal. For Children below 16, Gillick (1986) case law is of some assistance. The principle set out in that case states that if the minor patient is of sufficient intelligence and understanding; he/she is considered Gillick competent to give consent. Refusal to such a treatment already consented to whether by minor patient himself or by his parents is to be treated in a different perspective. For babies or young children, some one on their behalf alone can give consent in the best interests of the child. If there is a conflict, court can have overriding power to intervene and decide in the best interests of the children. In re M [1999), 15? year old, Gillick competent, with an acute heart failure was recommended for heart transplant. But the patient refused, unwilling to have someone else’s heart. The doctor decided that transplant was in the bests interests of the minor patient and therefore it was held to be valid in spite of refusal. In the instant case, Peter is a 12 year old boy undergoing treatment for leukaemia which he wants to be discontinued due to the painful chemotherapy. Since the doctor is opinion that continuance of treatment would ensure his one more year’s survival, his father is willing to continue treatment but his mother is resisting. Since minor has no capacity and hence no autonomy, his refusal can be overridden by the proxies of parents. In this case there is conflict between parents and the doctor is at risk to unilaterally continue or discontinue treatment due to the prospect of either of the parents proceeding against him. Though the doctor is permitted under law to decide in the ‘best interests’ principle, court intervention will be desirable in the present case because of the time available for taking a decision for continuance or discontinuance. The doctor will be in real fix if the decision is to be taken instantly in which case best-interests principle would apply. Assuming that this is a case of conflict between parents and the doctor, section 15. 2 of BMA Guidance will apply (BMA). Again this provision calls for an assessment of benefits or burden of treatment. The medical profession is guided by the same criteria as it would apply in the case of an adult in similar situation of severe unavoidable pain and distress. This crystallises to the principle of best interests of the patient, be an adult or a child. The General Medical Council’s guidance as Good Medical Practice (2006) also stresses the principle of the best interests of the child in para no 68 which says that the doctor should along with the parents or those responsible for the child assess burdens or risks for the child and encourage the child also to participate in the decision making process consistent with age and maturity of the child. Para 69 says that doctor should assess capacity of the child so as to take a particular decision and to understand consequences of treatment or non treatment. Particularly paras 72 to 76 exhort the doctors in charge of the incompetent patient to achieve a consensus between the two parents of parental responsibly without allowing the parent not in agreement to veto their proposal. It has been made further clear that doctors in charge of the incompetent patient to approach the problem with compassion and take the parents and others concerned into confidence so that they in their emotional outburst do not commit errors in their judgment. If still not possible to eliminate differences of opinion among the parents preventing treatment, doctors should seek legal advice and get a ruling from the courts. If none of them with parental responsibility is willing to authorise treatment, doctor can not implement his proposal without court’s ruling unless the emergency calls for treatment in the best interests of the child in order to prevent deterioration and to save the child’s life for the time being. In any case court’s ultimate orders will have to be obtained in such situations. (GMC) He should also consider applicable laws or legal precedents relevant to the different jurisdictions of U. K. In Re J (1990), court held that treatment was not in the best interests of the patient if affliction was to an intolerable extent. If the doctor gives treatment which would involve physical examination, surgery, or dressing a wound without a valid consent, he would be held liable for battery. Even if treatment is continued after the consent is withdrawn, it would amount to battery. In respect of Devi [1980], doctor was held liable for battery for conducting hysterectomy which the patient had understood as having consented for only repair of her uterus. In what is know as Glass case, Jones and Samanta (2004) report that in a case that came up before European Court of Human Rights (ECHR), mother insisted on withholding her consent which doctors resisted and gave medical treatment on two occasions with an intent to give him palliative care for a dying patient. The child has survived even today though the doctors acted in the best interests of the child. The ECHR awarded costs to David’s mother finding that doctors failed to demonstrate sufficient emergency to act in the child’s best interests. In brief, the case was about Davis Glass, the patient born in 1986 as mentally and physically disabled who had been under 24 hour care and attention by his mother and family members. As he was not considered by them as terminally ill, family members hoped he would survive his normal life span. During 1998, he had to be admitted to the Portsmouth Hospitals NHS Trust for a tonsillectomy. His postoperative condition became complicated and after several attempts of resuscitations, doctor felt his condition had become terminal and further intensive care would not be appropriate. But family felt doctors were not interventional enough as he was born disabled and certain to die. Fortunately, David recovered and was discharged. On the next readmission, doctors wanted to use opiates in his treatment as a part of palliative care to relive him of pain, anxiety and distress. This was not agreed upon by his mother who maintained that the doctors were attempting covert euthanasia and demanded he be put to full resuscitation with intubation in case of cardiac arrest. Doctors held the view that it would not be appropriate and asked for legal advice. The solicitor advised no court’s precedent existed declining doctor’s decision to provide palliative care to an incompetent patient and who is terminally ill. This time also David improved and was sent home. But on a readmission some time later, he was diagnosed with a terminally respiratory failure condition and hence was advised administration of Diamorphine for pain relief and to free him from distress. But the mother refused to believe that he was dying and did not agree to the administration of Diamorphine which she felt would spoil his chances of recovery. Despite her reservation, hospital gave in the Diamorphine and after a lot of commotion as result due to David’s mother’s reaction, the patient surprisingly recovered whereas both doctors and the patient’s mother had come to conclusion that he was dying. The authors conclude that current case law and statutes are not sufficient to solve such problems of whether doctors have acted in the best interests of the patients or not. Quoting Glass case, Hagger LE (2004) says that health professionals should ensure that their actions are demonstrable so that they are not accused of having acted in haste and that if provisions of Human Rights Act 1998 are observed in practice, there will be no fall out. Though the following case is not medical-law related, it would be of assistance in the case of disputes between parents over their child’s right. The case involved religious upbringing and circumcision of the child. Mother was a Christian and father, a Muslim. They were both non-practicing. Their five year old boy had acquired a mixed heritage and secular life style by being brought up by his mother and staying in contact with his father. Under section 8 of the Children’s Act, father applied for boy’s circumcision which the High Court declined. The Lordship found that circumcision would be more of an exception than the rule since the boy was being brought up in non-Muslim circle. Even though father appealed claiming that boy was born a Muslim and mere separation would not render him a non-Muslim, the court held that s 1 (7) of the Children Act does not allow a parent to let his son undergo circumcision without the consent of the other especially because of circumcision is irreversible. Bridge Caroline (2000) comments Section 2(7) of the Children Act 1989 provides that: ‘Where more than one parent has parental responsibility for a child, each of them may act alone and without the other (others) in meeting that responsibility; but nothing in this Part shall be taken to effect the operation of any enactment which requires the consent of more than one person in a matter affecting the child. Clearly, there are issues recognized by s 13(1) of the Childrens Act 1989, such as changing the childs surname or removing him from the jurisdiction that requires the written consent of every person with parental responsibility. However, both Thorpe LJ and Dame Elizabeth Butler-Sloss P made clear that there is a small group of important decisions which should not be made by one parent, albeit with parental responsibility, in the absence of the agreement of the other. (Bridge 2000) The above case deals with not a life threatening situation for the time being and the court has not established whose right will prevail as it depends on the circumstances of each case. If the word ‘irreversible’ has any clue, the present case can have the analogy of the boy’s immediate death being irreversible in case of refusal to prolong the treatment. Besides, the father is in agreement with the doctors. Further, the glass case gives a hint that however much the doctors expected the boy would die, he survived in spite of heavy odds as the luck would have it. In Glass case also mother hoped the boy would survive which the court endorsed and awarded costs payable by the doctors. But then the doctors failed to demonstrate urgency of the palliative care. In the instant case, urgency is all the more evident in that the boy would die soon if the medication is stopped. On the other hand he would survive for another one year and who knows he may even survive longer as had happened in the case of Glass. In both cases the crucial issue was chances of survival of the child which court favoured though in case (Re J 1990), it expressed the view that treatment was not in the best interests of the patient. Hence it would be in the best interests of the medical profession, after referring to technical committee at the hospital, to seek court’s opinion for continuance or discontinuance of the treatment to Peter while at the same time continue with treatment until court’s orders are received. Guidance in paras 71 to 76 of GMC reinforces the conclusion that in case of conflict between parents or total refusal of persons with parental responsibility in unison, doctors would act in the best interests of the child to tide over the emergency by prolonging the child’s life and at the same time obtain court’s advice in the face of conflicting or defiant parents for further action. References Bridge Caroline Comment on Re J. April [2000] Fam Law 246. accessed 9 February 2008 cirp. org/library/legal/bridge1/ BMA, British Medical Association Guidance for decision making, Withholding and Withdrawing Life Prolonging Medical Treatment Devi v West Midlands RHA [1980] C. L. Y. 687 Jones Elias A. C and Samanta. J (2004) Glass v UK (Application No 61827/00) [2004] 1 FCR 553 The implications of the David Glass case for future clinical practice in the UK accessed 9 February 2008 http://adc. bmj. com/cgi/content/full/90/8/822 Gillick v West Norfolk and Wisbech [1986] AC 112. GMC â€Å"Withholding and withdrawing life-prolonging treatments: Good practice in decision making† accessed 8 February 2008 gmc- uk. org/guidance/index. asp Hagger L. E {2004} The Human Rights Act 1998 and medical treatment: time for re- examination Archives of Disease in Childhood 2004; 89:460-463 accessed 9 February 2008 http://adc. bmj. com/cgi/content/full/89/5/460 M [1999] 2 FLR 1097 Re J (1990) UK Clinical Ethics Network accessed 9 February 2008 www. ethics-network. org. uk