1. If a Gillick-competent child is able to consent to medical treatment, what can be the justification for overriding a decision made by the same Gillick-competent child to refuse medical treatment? Is it possible to separate legal arguments for overriding the child’s wishes from ethical/moral arguments?
If you choose this question, your essay must do the following:
Outline the basis upon which Gillick-competence is assessed and the rationale of Gillick –competence (approximately 20% of your words);
Your analysis must include and integrate discussion of the cases we have considered in class on Gillick-competence (you will probably take up about 15-20% of your words outlining the basic facts and what the issues were in each of those cases); and
Analyse the legal and ethical arguments for and against allowing the child to determine whether or not they will receive the treatment in dispute. This is the most important part of your paper, your analysis should focus on what the judges had to say in your case examples, as well as on the argument of the academic commentators in the journal articles and texts you have sourced through your research (approximately 55-60% of your paper).
You will also need to include an introductory paragraph and a conclusion in your essay (approximately 10% of your words)
Please read the following paragraphs on the expectations for your essay:
Essay Topic: “If a Gillick-competent child can consent to medical treatment, what can be the justification for overriding a decision made by the same Gillick-competent child to refuse medical treatment? Is it possible to separate legal arguments for overriding the child’s wishes from ethical/moral arguments?”
The essay topic chosen for the assignment strives to understand the justification of overriding the decision of Gillick competent child for refusing to medical treatment. The legal arguments, as well as the ethical and moral values, integrated into such a decision has been discussed and analysed for better understand the scenarios and case studies mentioned in the class.
Gillick-competent child can consent to medical treatment
The assessment and rationale of Gillick competence are based on a specific framework that would help to justify the overriding the decision of a Gillick competent child. This can be decided by an active engagement between the patient, and the health care professional, and generally, the clinical decisions are made by respecting the autonomy of the patient where he is responsible for his preferences, values and needs . The patient allows the health care expert to infringe upon his bodily integrity by giving consent. The test of Gillick competence is subjective and is a question of the treating practitioner’s judgement. Parental objection to the treatment of a ‘Gillick competent’ child who has voluntarily consented to treatment is irrelevant. The court maintains some rationale for considering Gillick competence. The law must not impose artificial and unrealistic limits on children's capacities but must be sensitive to human developments and social change . A parent's authority over a child is not absolute and only dwindling right that yields to the child’s right and capacity to make his or her own decision. The child between the ages of 16-18 who has sufficient understanding of the proposed treatment may consent personally, does not require parental permission. It is also based on some assessments. The child must appreciate the nature of the advice and understanding what is involved in the treatment - short and long term. The degree of understanding required of a child to establish competence is greater than that expected of adults, who only need to understand the treatment in ‘broad terms’ so as to be able to make a reasoned decision, rather than a decision deemed reasonable.
In this section of the assignment, the example cases have been considered to understand the basic facts and issues in each of the cases, and they have been integrated with Gillick competence of the patients in each of the cases. In the first example, 10-year-old child Jasper requires chemotherapy and radiotherapy for increasing his lifespan by 12 months. Jasper's parents are unwilling to carry on with the treatment and want to take Jasper home where he can enjoy his last short period of life in comfort at home with his family. As Jasper and his parents want to ignore the treatment, the children's hospital has applied to the family court for allowing the chemo and radiotherapy to the patient as there are chances of improvement with the treatments. The issues, in this case, are the identification of accountable person who should make the decision on behalf of Jasper. Additionally, the factors that should be taken into account for making this decision is a major challenge along with the consideration of feelings of Jasper and his parents to be treated with more importance than scientific evidence for potential and success of the treatment is also a major issue. The second example is a simple case of dentist and patient where the patient wants the doctor to pull out her teeth as it causes too much pain. The issues, in this case, are the problems that the dentist face when treating her patients and also if the patient makes an uninformed decision about pulling the teeth out, can this be considered as consent from the patient. In the third example, Meanie is afraid of needles. However, she needs to get C-section for delivering her baby that requires local anaesthesia through injection. This why Melanie has refused the treatment and the hospital has made an application to the court if the doctors can legally perform the C-section surgery on her against her will. The issues are can this case be considered by the court and if so, what factors should be taken into account. In the fourth example, Therese has refused blood transfusion as her mother is a religious follower of Jehovah’s Witness and after her visit to Theresa in the hospital; she has declined the blood transfusion because she feels guilty for her mother’s suffering. However, Theresa’s father and partner have to seek a court order regarding the treatment as they feel Theresa is in too much pain to resist her mother's insistence of getting a blood transfusion. The issue for the court is to consider the patient's circumstances and the events surrounding the patient's decision as well. The fifth example has two hypothetical cases of Patrick and Jasmine. Patrick was suffering from Leukaemia when he was five and has now been suffering for the last eight years as he requires a heart transplant. However, he does not want to spend any more time in the hospital and refuses the heart transplant process and is supported by his family. Jasmine, on the other hand, has been suffering from lymphoblastic leukaemia and requires a transfusion of packed cells and platelets without which she will die. However, Jasmine and her parents have refused the treatment as it would be against God's will. The issues in each of the cases are the level of Gillick competence of these children and what argument can be presented for overruling their decision for their best interests. The consideration of moral and spiritual belief overtrumping life-saving treatment is taken into consideration in both the cases. The sixth example is about Alex who is suffering from gender dysphoria. However, the surgery should be done in his adolescent years; otherwise, it would be tough to psychologically and physically achieve success in the transition when he becomes an adult. The suffering of Alex due to gender dysphoria should also be taken into account before the decision of the court, and also future support from his family, friends and school has to be considered.
Each of the six cases should be used for justifying the decisions that might be made by the court judges depending upon the case scenario, In the first case of Jasper, the decision of getting chemo and radiotherapy should be decided by Jasper himself as a minor's consent is also as important as that of an adult when it comes to common law right to bodily integrity and self-determination. The opinion of Jasper parent is not that important for the court when compared with the medical practitioners who can make informed decisions; however, Jasper's consent is the highest priority for the court given that Jasper understands the short- and long-term consequences of denying the treatment. As Jasper can be considered as Gillick competent, the court will give Jasper the authority to make the final decision considering that the rationale of the court for Gillick competence is intact. In the second case, the dentist faces some problems regarding the treatment of her patient. When the patient wants to get a tooth out due to severe pain, there are some consequences that they are unaware of. These types of conflicts are common for health professionals where the patient is unwilling to listen to the problems and make an uninformed decision. As no intervention of the court is required in the process, the dentist must make sure of the consent from the patient before taking out the tooth. If the patient says just to get the tooth out, it cannot be considered as consent as the patient is making an uninformed decision and is unable to think right due to the pain. That is why the dentist must take a written document from the patient as evidence for the consequences to avoid future tort from the patient. In the third example, Melanie needs to have a C-section surgery for delivering the baby, but due to her phobia of needles is unwilling to take the treatment. The court has special scenarios when it can intervene. It can override consent to or refusal of a child’s medical treatment if a decision is deemed not to be in the best interests of the child. The question of Gillick competency will not arise in the case of infants and children so young as to clearly not have the understanding and intelligence to comprehend the nature of the treatment. For these reasons, Melanie might harm herself and the child in her womb who is not Gillick competent. This is why the court has an obligation to force Melanie’s compliance for saving the baby and should grant the health care professionals carry out the C-section surgery on Melanie. In the fourth example, Theresa has refused a blood transfusion treatment due to her own and mother's religious beliefs. The test of Gillick competence is subjective; it is a question of the treating practitioner's judgement. Parental objection to the treatment of a ‘Gillick competent’ child who has voluntarily consented to treatment is irrelevant. However, in this case, Theresa is also willing to refuse the treatment as insisted on by her mother. Also, Parents may only consent to or refuse treatment which is in the child’s best interests. For this reason, the court must ask his partner and father to interact with Theresa and change her decision regardless of what her mother's religious beliefs are. If unable to do so, the court cannot override Theresa's decision and has to prevent the health carers from providing the blood transfusion treatment.
The case of Patrick and Jasmine was quite similar where both of the patients were unwilling to receive blood transfusion treatment although for different reasons. This decision making by the court required to consider the best interests and welfare of the child in both these cases. As evident from Marion’s case, the decision must be determined objectively and not by reference to the good-faith opinions of the parent. As the case of Patrick included the suffering of the patient since childhood without any improvement of health, the court should grant the authority of decision to Patrick and can reject the heart transplant system if he wishes to. However, in the case of Jasmine, the decision left by parents to the child, he was considered Gillick-competent, and she refused the blood transfusions. However, the welfare of the child included physical well-being. If the child will die without the life-saving treatment which has a good prospect of a long-term cure, it is unquestionably in the child's best interests to receive that treatment. For this reason, the court should overrule the decision of the child and her parents for refusing the treatment due to religious reasons. In the final scene of Alex, the gender dysphoria was a major consideration that the court has to make to consider him Gillick competent. The court did not find Alex to be Gillick competent. The court suggested that it is one thing for a child to have a general understanding of what is proposed and its effect, but it is quite another to conclude that Alex has sufficient maturity to fully understand the grave nature and effects of the proposed treatment. Although Alex's parents were supporting him, however, there are some limitations to parental power. Some types of major complex medical treatment that impinge on fundamental rights reproduction, liberty and life, or are irreversible are not considered under parental authority. This is why the court should not allow Alex to go through the procedures and treatments of sex change.
The overall assignment justifies the ethical, moral and legal dilemma that the court judges might face when making decisions about the case examples mentioned. Proper analysis and justification have been made using citation from academic commentators of journal articles