Issues of CONSENTin providing medical treatment to young people up to 18 years old

Dr Ui Peng Khoo

Consultant Child & Adolescent Psychiatrist

May 2011

• Consent – definitions

• Gillick competence & Fraser guidelines

• Mental Capacity Act 2005

• Parental Responsibility

• Mental Health Act 2007

• Case vignette

Basic PrinciplesChildren and young people can expect:

• To be kept as fully informed as they wish, and as possible, about their care and treatment

• Health professionals to act as their advocates• To have their views and wishes sought and taken into account• To be the individual who consents to treatment when they are

competent to do so• To be encouraged to take decisions in collaboration with other

family members, especially parents, if this is feasible• To be able to expect that information provided will remain

confidential unless there are exceptional reasons that require confidentiality to be breached

Definition of CONSENT

• [from Old French consentir, from Latin consentīre to feel together, agree, from sentīre to feel]

vb 1. to give assent or permission (to do something); agree; accede2. (intr) Obsolete to be in accord; agree in opinion, feelings, etc.n 1. acquiescence to or acceptance of something done or planned by another; permission2. accordance or harmony in opinion; agreement

Collins Dictionary

Informed Consent• (1) competence to understand and to decide, • (2) voluntary decision making, • (3) disclosure of material information, • (4) recommendation of a plan, • (5) comprehension of terms (3) and (4), • (6) decision in favor of a plan, and • (7) authorization of the plan

• A person gives informed consent only if all of these criteria are met. If all of the criteria are met except that the person rejects the plan, that person makes an informed refusal.

Consent (MHA 1983 Code of Practice)

…the voluntary and continuing permission of a patient to receive a particular treatment based on adequate knowledge of the purpose, nature, likely effects and risks of that treatment, including the likelihood of its success and any alternatives to it…

The assessment of consent…

• Information

• Capacity or competence

• Freedom to choose

Capacity vs. Competence

• These terms are sometimes used interchangeably, yet supposedly there’s a difference

• What is it?

Capacity

• “The ability to understand information relevant to a treatment decision and to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.” (Bioethics for Clinicians)

– Really a definition of an adequate degree of capacity for medical decision making

Capacity vs. Competence

• Capacity refers to an ability

– “having capacity”– Capacity comes in degrees

• Competence refers to a property or characteristic a person possesses

– “being competent”– Competence (relative to a particular decision) is all or

nothing.

Competence & Competence Defined

• Capacity = the degree to which one is able to understand the information relevant to a treatment decision and appreciate the reasonably foreseeable consequences of a decision or lack of a decision.

• Competence = being able to understand information relevant to a treatment decision and to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.

Can competence ever be presumed?

• Yes. All people aged 16 and over are presumed in law to be competent to give their consent to medical treatment and to the release of information in England, Scotland, Wales and Northern Ireland

(although they may lack capacity)

Can a young person be competent under the age of 16?

• Yes, this should be assessed case by case

• And should not be judged solely on the basis of age

Gillick competency and Fraser guidelines

In 1982, Mrs Victoria Gillick took her local health authority and the Dept of Health and Social Security to court in an attempt to stop doctors from giving contraceptive advice or treatment to under 16 year olds without parental consent

The case went to the High Court where Mr Justice Woolf dismissed Mrs Gillick’s claims. The Court of Appeal reversed this decision, but in 1985 it went to the House of Lords and the Law Lords (Lord Scarman, Lord Fraser, Lord Bridge) ruled in favour of the original judgement delivered by Mr Justice Woolf

Gillick competency and Fraser guidelines

“…whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent.”

How are Fraser Guidelines applied?

“…a doctor could proceed to give advice and treatment provided he is satisfied in the following criteria:

1. That the girl will understand his advice2. That he cannot persuade her to inform her parents or to

allow him to inform the parents that she is seeking contraceptive advice

3. That she is very likely to continue having sexual intercourse with or without contraceptive treatment

4. That unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer

5. That her best interests require him to give her contraceptive advice, treatment or both without her parental consent

Gillick competency

Lord Scarman’s comments:

“Parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”

Assessing competence

• The ability to understand that there is a choice and that choices have consequences

• The ability to weigh the information and arrive at a decision

• A willingness to make a choice (including the choice that someone else should/not make the decision)

• An understanding of the nature and purpose of the proposed intervention

• An understanding of the proposed intervention’s risks and side effects

• And understanding of the alternatives to the proposed intervention, and the risks attached to them

• Freedom from undue pressure

Who should assess competence?

• GPs who have known the young person for a long time

• Health professionals skilled and experienced in interviewing young people and eliciting their views without distortion

• Health professionals who have a close rapport with the patient

Gillick competence (under 16s)

• The doctor (or health professional) concludes if a young person has competence

• Decision-specific – a young person may be competent to make some decisions, but not others

Mental Capacity Act 2005

• Applies to people aged 16 or over

• Legal framework for making a decision on behalf of those who lack capacity to make their own decisions

Mental Capacity Act 2005

For the purposes of this Act, a person (aged 16+) lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”

Mental Capacty Act: Section 2(1)

Two stage test of capacity

• Is there an impairment of, or disturbance in the functioning of the persons mind or brain?

• Is that impairment or disturbance sufficient to make the person unable to make the decision in question?

Test of capacity

• Understand the information relevant to the decision

• Retain that information

• Use or weigh that information as part of the process of making the decision

• Communicate his decision

Factors to consider when assessing capacity

• Cognitive development

• Emotional development

• Mental illness

• Medication/drugs/alcohol

• Relations and peer influences

• Cultural and political pressures

Capacity

• Capacity is decision-specific

• An unwise decision does not imply incapacity

• If the person does not have capacity: Does the decision need to be made without delay? Will the person regain capacity? Is it possible to wait until the person does have capacity? Consult with others Use parental consent/act in best interest

Consent and Refusal

• Children Act 1989

Parental authority, the Local Authority and the Inherent Jurisdiction of the High Court can over-ride even a competent young person’s refusal of treatment

Parental Responsibility

• Children Act 1989 Section 3(1)

“all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to a child and his property”

(Children Act defines a child as aged under 18)

Who has Parental Responsibility?

• If a child’s father and mother are married at the time of the child’s birth

• If a child’s father and mother are not marriedMother always has parental responsibilityFather may acquire it

Section 2 Children Act 1989

How can Parental Responsibility be acquired?

FatherIf married to mother at time of birth or

subsequentlyIf named on birth certificate since Dec

2003If legally acquired by

• Applying to court• Making an agreement with mother• Being appointed guardian

How can Parental Responsibility be acquired?

• Step-parents (Adoption and Children Act 2002)

• Others Special guardianship orders (Adoption and

Children Act 2002)Residence orderAdoption

Parental Responsibility

• Where more than one person has parental responsibility for a child, each of them may act alone and without the other in meeting that responsibility

Section 3(7) Children Act 1989

Local Authorities can limit the extent to which parents may

exercise their parental responsibility

• Care Order

• Secure Order

• Emergency Protection Order

How far can the authority of parental responsibility be used to

treat the objecting child/young person?

• Is it a decision that a parent would normally be expected to make?

• Are there any indications that the parent might not act in the best interests of the child or young person?

Overriding refusal to treatment- best interests?

• Likelihood of serious permanent harm as a result of refusal

• Effectiveness of treatment

• Practicality of enforcing treatment

• Ongoing treatment or “one-off”

• Likelihood of compliance with aftercare

• Doctor-patient relationship compromised

Mental Health Act

• Definition of mental disorder• Section 2, 3, 5(2), 136• ASW – AMHP• RMO – AC, RC• Cannot treat a physical disorder

under MHA unless physical illness is a direct consequence of mental illness e.g. anorexia nervosa

Mental Health Act

• Mental disorder definition simplified to

“any disorder or disability of the mind”

• 2 exemptions:Learning disability (only detainable if

associated with abnormally aggressive or seriously irresponsible conduct)

Alcohol or drug dependence

MHA - Section 2• Compulsory admission for assessment (followed

by treatment) for up to 28 days• AMHP/relative and 2 medical recommendations

(one approved doctor)• Detention in the interest of patient’s safety or

safety of others• Patient suffering from mental disorder nature or

degree warrants detention for assessment• Right to appeal to Mental Health Review

Tribunal

MHA - Section 3

• Compulsory admission for treatment for up to 6 months, can be extended

• Patient suffers from a mental disorder• Same 2 exemptions• Necessary for the health or safety of

patient or protection of others and treatment cannot be provided unless they are detained under this section

• Right to appeal

MHA - Section 4

• Emergency detainment for assessment for up to 72 hours

• Nearest relative/AMHP plus one doctor who has seen patient in past 24 hours

• Urgent nature such that Sec 2 would be unacceptable delay

• Convert later to Section 2 if necessary

• Renewal not possible

MHA – Section 5(2)Doctor’s holding power

• Compulsory detention of patient already receiving inpatient treatment for up to 72 hours by the doctor in charge of the case

• Must have mental disorder and be a potential danger to self or others

• To allow time for Sec 2 or 3 to be made

MHA – Section 5(4)Nurses holding power

• Registered Mental Nurse can detain patient for up to 6 hours while the doctor is found

• Patient must be potential danger to self or others

• Doctor not immediately available to implement Sec 5(2)

MHA – Section 136

• Police powers to remove a mentally ill person from a public place to a place of safety

• Hospital (designated Section 136 sites) or a police station

• To allow person to be assessed by doctor and AMHP

• Can be detained for max 72 hours

MHA – Section 136

Person removed entitled to:

• Person of their choice informed of their whereabouts

• Access to legal advice

• Medical treatment form appropriate professional

• Support of appropriate adult (independent of police)

Case vignette

Mary is a 16 year old girl who has been sleeping rough having been evicted from a B&B the night before. She is found in the park in a drowsy condition with 2 empty packets of paracetamol nearby. She had told her youth worker and her mother that she planned to kill herself yesterday.

Case vignette

In A&E, her lactate level is elevated. She appears drowsy but denies taking any alcohol. She denies any intention to kill herself and refuses to consent or cooperate with treatment. She has a history of cannabis and heroin use.

Mary pulls out her IV cannula and walks out of A&E swearing at staff.

Case vignette

A multidisciplinary meeting is called – mother cannot have Mary back home as their relationship has broken down. Mary absconds from hospital over the weekend. She has a history of taking overdoses, self-cutting and absconding.

She discharges herself against medical advice. On her way out, she is heard telling her friends she plans to kill herself.

Case vignette

Mary is brought back by police under Section 136.

References

• GMC: 0–18 years Guidance for all doctors• Arch Dis Child July 2009 Vol 94 No 7

p487-491 Overriding competent medical treatment refusal by adolescents: when “no” means “no”

• BMA Children and Young People Toolkit 2011

• Children with Mental Disorder and the Law (Anthony Harbour)