Age As an Issue of Consent and Responsibility - Too Young Or Too Old?
Penny Booth
Professor of Child and Family Law
StaffordshireUniversityLawSchool
Kopaonik, Serbia, December 2008
Dated September 2008
Penny Booth
Age as an Issue of Consent and Responsibility - too Young or too Old?
Abstract
Issues of responsibility and consent in families are issues that have impacted on the care and treatment of children and those same issues in respect of the elderly have also impacted on care both within and outside families of those members of the family who require specific ‘elderly’ care. The nature and context of the decision-making and consent within the family is worth exploring as part of the jurisprudence and practicalities of family decision-making in the context of human rights. The law in individual jurisdictions provides rules for consent and treatment of the young, and also for those whose capacity to make decisions is imperfect owing to mental health or failure of capacity. Families may try to abide within those rules, influenced by the decision-making of the courts and the guidance given by authoritative and professional bodies and the medical advice given to them, as well as the social influences on care of the young and the elderly.
This paper hopes to explore some of the issues involved.
Penny Booth
Professor of Child and Family Law
Work address:
StaffordshireUniversityLawSchool
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Stoke-on-Trent
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Introduction - the ability to decide under English Law
There are many international legal provisions protecting children. Under English law the legal provisions regarding the protection of children, both at a statutory and common law level, are also wide. Both the Family Law Reform Act 1969 and the Children Act 1989 contain specific provisions in relation to children. The Children Act[1] sets out the law in relation to children for all kinds of situations, many of which relate to specific human rights issues, although under English Law there is a preference for dealing with specific issues rather than generalized human rights. The Children Act[2] tells us that in determining any question in relation to the upbringing of a child, the child’s welfare is to be the court’s paramount consideration. The Family Law Reform Act[3] again makes numerous provisions in relation to children, including reducing the age of majority from twenty-one to eighteen[4] . Both Acts provide guidance regarding the consent to, or refusal of medical treatment of a child. S 2 (1), (2) and (7) of the Children Act[5] provide that where a child is too young to give consent to medical treatment then the parents must give consent on their behalf. Section 8 (1) of the Family Law Reform Act[6] provides that when a child attains the age of sixteen, they will have the right to consent to, but not to refuse, medical treatment. Upon reaching the age of eighteen the child will have reached the age of majority[7] and will then be classified as an adult in their own right with the ability to consent to, or to refuse, any medical treatment as they so wish, so long as they are of sound mind. Indeed as stated by Cardozo J in one of the leading cases concerning consent
Every human being of adult years and sound mind has a right to
determine what shall be done with his own body; and a surgeon who
performs an operation without the patients consent commits an
assault.[8]
In addition to these statutory provisions relating to children and medical care, the case of Gillick v W Norfolk and Wisbech Area Health Authority[9] has provided further guidance on the medical treatment of adolescents under the age of sixteen and the role they play in the decision making process. As Fortin contends,[10]
The principles that it established have a general application to all forms of medical treatment and assistance.
The judgment in Gillick[11] indicates that an adolescent’s competence to make a decision in relation to medical treatment will increase in correlation with their ability to understand the implications of the medical procedure. Where there is understanding of the treatment then the adolescent will be deemed competent to consent to treatment. It will not be necessary to obtain the consent of the parent or guardian. What ought also to concern those interested in the application of human rights is the extent to which the same approach applies to the elderly.
Medical consent, the young and the old
Autonomy and consent are important issues for human beings. [12] The law relating to these issues affects family life because of the natural desires for independence of thought and action. Autonomy and consent are legally and ethically fundamental. Consent is often stated as the prerequisite to treatment of adults of sound mind,[13] and as such there are English law sanctions for those who administer medical treatment without consent. Obtaining consent is a defense to battery or negligence and a means of regulating medical practitioners, however, as Brazier[14] observes, consent in the concept of medical treatment can serve several functions. Consent not only safeguards the autonomy of patients and respect for individuals, but informed participation in healthcare assists and enhances necessary care. The importance of consent to medical treatment has been reaffirmed by the English courts on many occasions;[15] we have noted Cardozo earlier. [16]
The need for a patient to consent to medical treatment under English law effectively allows a patient to refuse treatment if he or she so chooses. This was affirmed in Re T by Lord Donaldson MR who stated that:
…an adult patient who…suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than the other of the treatments being offered.[17]
In order for consent to be deemed valid there are certain rules imposed by English law. These are intended to impose obligations on healthcare professionals, and thus ensure that the exercise of autonomy is meaningful.
The first rule in relation to consent is that the patient must have sufficient competence or ‘mental capacity’ to make the decision. The case of Re C[18]which concerned the refusal of a life saving operation by a schizophrenic patient who suffered form grandiose delusions is important here. Thorp J acknowledged that although prima facie C was entitled to refuse medical treatment even where this would lead to his death, this presumption could be rebutted by evidence of C’s incapacity. To determine whether C was competent to refuse medical treatment a three stage test applies:
firstly, could the patient comprehend and retain the necessary information; secondly, did the patient believe the information, and finally, had the patient weighed the information in the balance with other considerations when making his decision?
Despite criticisms that the test may be vague and gives rise to uncertain and inconsistent interpretation,[19] the courts have continued to apply the test devised in Re C[20] where there is question as to the patients’ competence. In Re MB[21] Butler-Sloss LJ elaborated on the Re C[22]test stating that:
A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when:
(a)the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having the treatment in question;
(b)the patient is unable to use the information and weigh it in the balance as part of the process of arriving at a decision.[23]
The Mental Capacity Act 2005, specifically section 3, confirms this test of competency, and the Act makes additions and adds clarification to the Re C[24]test, in the Mental Capacity Act Code of Practice it is stated that:
The Act's new definition of capacity is in line with the existing common law tests, and the Act does not replace them. When cases come before the court on the above issues, judges can adopt the new definition if they think it is appropriate[25]
The second rule concerning consent is that consent must be voluntary, that is, the patient must consent of their own free will, free from duress or undue influence. In the case of Re T,[26]the patient, a Jehovah’s Witness, refused a blood transfusion. Lord Donaldson MR finding that it was and granting an order to transfuse T, stated:
…persuasion based upon religious beliefs can also be much more compelling and the fact that arguments being deployed by someone in a very close relationship with the patient will give them added force and should alert the doctors to the possibility - no more - that the patients capacity or will to decide has been overborne. In other words the patient may not mean what he says.[27]
Finally, the patient must have been given sufficient information about the proposed procedure. English law requires consent to be real to be valid. The patient must understand the ‘nature and purpose’[28] of the treatment.
In the Chatterton v Gerson[29] it was established that the patient must be informed in broad terms. The Sidaway[30] judgment extended this principle by stating that where a patient specifically asked a question in relation to the treatment, the medical staff must answer the question, but there is still no clarity about the amount of information a patient should receive.
The courts are careful to clarify criteria that apply in relation to consent to treatment - a person must be of adult years and of sound mind. A person lacking this capacity will be deemed unable to make a decision consenting to or refusing treatment. It may be that a person’s capacity is permanently impaired due to mental illness; that their capacity is temporarily impaired due to an injury or lack of consciousness; that their capacity is diminished due to an illness such as dementia; or that as a minor they have not yet acquired capacity to make a decision.
In the case of minors, legal provisions are in place in order that a decision can be made on behalf of the child by their parent or guardian.[31] Provisions regarding adults whose capacity is lacking are contained in the Mental Health Act 1983 and the Mental Capacity Act 2005.
The position of older children and younger children
Both the Family Law Reform Act 1969 and the Children Act 1989 contain specific provisions in relation to children.
The Gillick[32] case and legal position has already been dealt with in this paper. An adolescent’s competence to make a decision in relation to medical treatment increases with their ability to understand the implications. The Children Act[33] confirms that in the case of a minor (for this purpose, those under sixteen years of age) the consent of a parent is required. The Family Law Reform Act[34] makes provisions for those aged sixteen and seventeen to consent to treatment without the need for parental consent and Gillick[35] clearly provides that adolescents under the age of sixteen may consent to medical treatment if they are deemed to be competent to do so given the serious nature of the decision to be made.
There is the presumption that small children are incapable of being competent to make their own decision in relation to medical treatment and that a parent or guardian must consent to or refuse treatment on their behalf.[36] There is also a presumption that this decision-making by parents/guardians will continue until the child reaches the age of sixteen [37] . This position is rebuttable by the finding that an adolescent is Gillick competent. In addition, although it is presumed that at sixteen years of age a child will be capable of consenting to treatment we do not extend this presumption to the refusal of treatment, where again it will be left to the parents to make the decision.
The general presumption in relation to children and medical treatment is that as the child grows so too does their ability to make a competent decision - competency increases with age. Beyond 18 and adulthood it matters not whether a person’s decision would seem totally illogical to others, only that he/she is deemed legally competent to make the decision.[38]
The only exceptions to this is where a person is deemed to be legally incompetent by reference to s2 of the Mental Capacity Act 2005, treatment that is in their best interests[39] may be decided upon on their behalf,[40] or where a person suffers from a mental disorder they may be treated without their consent under s 3 of the Mental Health Act 1983.
Decision-making and the elderly
In relation to family law little thought has been paid to this question. Indeed as Zenz asserts the law concerning elderly people is rarely discussed:
Old age seems to be a category only in social law, but not in family law. When it comes to the elderly - unlike in the case of children - there seems to be no perceived need for specific research and discussion on family life and human rights.[41]
Under English Law we The Children Act 1989 to cover children, but there is no corresponding Act in place that makes provisions for the other end of life. We do not have an ‘Old People’s Act’ giving rights and responsibilities to the older generations. At eighteen years of age a person attains adulthood and makes the legal transition from being a minor to being an adult in their own right and as such is entitled to give or refuse their consent. This, it appears, is the way the situation remains in relation to, inter alia, medical decisions until the end of a person’s life. There are no statutory provisions that are comparable to a person’s increasing competency through age to consent to or refuse medical treatment during childhood and adolescence, with their possibly diminishing competency to do so during later years.
The Mental Capacity Act 2005 makes provisions for this diminishing competency. The Act does cater for the person who pre-empts a lack of capacity by allowing them to create a lasting power of attorney through section 9 enabling a designated person or persons to make decisions in the patient’s best interests on their behalf if they should lack capacity to do so themselves. In addition, upon reaching the age of eighteen a person may make an advance decision to refuse treatment using section 24 which would come into effect if at the time treatment was proposed the patient lacked the capacity to decide. The Mental Capacity Act provides for those who lack capacity to make a decision where medical treatment is concerned, including older people in the later stages of life. The Act is not solely confined to or specifically aimed at older people - section 2 (5) of the Act confirms that the Act is applicable to any person over the age of sixteen. The Act does not take into account the possibility of diminishing responsibility and capacity, but focuses on the patient who has total lack of capacity to make an informed decision or choice regarding treatment.
Old people are revered in some societies, to be consulted on all matters and asked to share their years and gathered wisdom to guide the young. In the United Kingdom today, as may be through other parts of Europe, there are, of course exceptions, we rarely seem to find the opportunity to consult, let alone regard our elderly as anything more than a burden to us, our families and society in general.[42] Rights and obligations are not just for the adult to give to the young, they also should exist for all to ensure that through to their twilight years approaches to human rights within the family reflects our desire to ensure the application of rights and obligations. In the same way that we seek to ensure that the young have rights and their welfare is cherished, we need to ensure with the rights and welfare of the elderly in our society. We faced with similar problems as faced by those fighting to have children’s rights recognized. Older people are not a homogenous group – and neither are the young, of course.
The needs of the old are many and diverse [43] and their experiences, their social class, personal background and health, are situated in societies which may have different expectations of how ‘the old’ should behave and be treated. These views do not necessarily correlate with the views of the elderly themselves whose own expectations of being old or older may be quite different. Stereotypes related to older people are used – but physical frailty and mental incapacity are the usual stereotypes, and are affected by what we expect to have happen to us as we become older - even if we try to stem the worst effects of ageing. The extent to which our stereotypes are all correct must be doubted because not all the elderly suffer to the same extent the effects of growing older.
The UK government is concerned about care of the elderly [44] and the position of the pension problem in the UK is just one issue. When the ability to earn money and make a contribution to the wealth of society by making or spending money diminishes, the exercise of power grows weaker; it is not possible to retain the influence that goes with being a full consumer.
How old is old and how many is a problem?
The old in current European society includes among the last of those born at the turn of the nineteenth into the twentieth century and possibly just before the First World War. They are now in their nineties and even over 100 years of age – and the very youngest of the old (those in their late fifties and early sixties) may have been the babies born when popular music became influential in the 1950s. Any policy which attempts to deal with the ‘elderly’ in society must surely bear in mind that the elderly could be aged in their late fifties and early sixties to their nineties and beyond. John Evans points out -