Week 7: Refusal of consent in minors without capacity

Question 1

When are pts considered legally minors?

what should children be included in?

Answer 1

Children under 18 are legally considered minors

Children should be included in discussions about them as far as possible

Question 2

What are 16 -18 yrs presumed to have and under what act?

Answer 2

16 and 17 year olds are presumed to have capacity under the mental capacity act

Question 3

What is Gillick competence?

Answer 3

some children under 15 yrs have sufficient capacity to decide for themselves and can consent for themselves

Question 4

what can children expect if they are deemed to have capacity?

Answer 4

Children who have capacity can expect confidentiality

Question 5

What remains paramount concern until adulthood?

Answer 5

best interest remains the paramount concern until adulthood

Question 6

How can a minor with capacity that refuses tx be overriden and by whom?

Answer 6

Whilst minors with capacity can consent to medical tx, their refusal of conest can be overriden in their best interests ( to avoid death or severe permanent injury).

Either by 1) a court 2) by their parents (depending on age of child, adivsable to seek agreement of the court).

Including 16 and 17 yr olds (in spite of MCA)

Question 7

How can the ability to override a capacitous refusal by a compentent child be justified?

Answer 7

• Courts can override competent parent’s decisions, and the decisions of some competent adults e.g. MHA, and its therefore consistent that we can override capacitous children

Question 8

What are courts bound by to ensure a child’s interest is of paramount concern?

Answer 8

Courts are bound by children act to ensure the child’s interests are their paramount concern.

Courts have the right to override child’s wishes in the event that it is in the child’s best interest and in the event that the child is refusing tx in circumstances which will in all probability lead to the death of the child or severe permanent injury

Question 9

What can outweigh a capacitous child’s refusal? (what circumstances)

How are parents involved?

Answer 9

although children are permitted to make their own decisions this interest may be outweighed by other interests they have –> avoiding death or severe permanent injury

parents still have the legal right to give consent for their minor children and dr only needs consent of one person to continue:

competent child OR one OR other parent/ person with parental responsibility

Question 10

Are parents legally obliged to override the competent refusal of their child?

Answer 10

No –> parents can override the competent refusal of their child, but this does not mean that they MUST, law permits but does not require

Question 11

Is there a difference between deciding to consent and deciding to refuse consent?

why/ why not?

Answer 11

There is a difference between deciding to consent and deciding to refuse consent.

Consent may require a decision between two equally viable options

Capacity is decision specific, in consenting the child agrees to an intervention that is offered by the doctor, who believes it to be in the child’s best interests to have it.

Refusing is a decision of a different magnitude because the consequences are more serious (unless where doing nothing is one of the options dr recommended).

Question 12

What act is involved in the refusal of 16/17 yrs?

Answer 12

Presumption in favour of capacity under the MCA

recommended that trusts seek the opinion of the court of protection before disregarding a refusal of consent by minors of 16/17 even if parental consent is available.

Question 13

What is key as to whether a patient can consent to a procedure?

Answer 13

Ax whether a pt has capacity is key to determining whether they are able to give consent.

Question 14

What should be remebered when a child is deemed as not having capacity and making tx decisions in their best interests?

Answer 14

Children must still be consulted about other decisiosn that they DO have sufficient capacity to decide.

Plus –> patients (minors or otherwise) should always be included as far as possible in decision making even if they are not ultimately able to decide for themselves.

Question 15

Who should make decisions for minors who lack the capacity to make tx decisions?

Answer 15

If a child lacks the capacity to consent, you should ask for their parents consent.

it is usually sufficient to have only one parents consent

If parents cannot agree and disputes cannot be resolved informally you should seek legal advice about whether you should apply to the court.

Ideal –> parental consent (both)

sufficient –> consent from one parent

last resort –> court; doctors advise on tx options and potential outcomes but have no authority to decide unless under the doctrine of necessity.

Question 16

What must parents making tx decisions for their minor w/out capacity have?

When may this be compromised?

Answer 16

• Parents / those w parental responsibility must ALSO hav capacity to make the decision at hand
• This is compromised when:
  
  • the parent themselves is a minor
  • some parents may have mental impairments or disabilities that may restrict capacity to make complex tx decisions
  • parents may themselves be affected e.g. by the same RTA as their child

Question 17

How should tx decisions be made for a minor w/out capacity?

Reference first parents and then drs

Answer 17

• parents:
  
  • usually or ideally make the decision out of parental love, based on doing what they think is best for their child.
  • own values/ beliefs inform what is “best” to them –> drawing on own knowledge of their child
• Doctors:
  
  • Drs should always act in best interests of children and young people
  • ax of best interests will include:
    
    • what is clinically indicated in a particular case
    • views of minor
    • views of parents
    • views of others close to minor
    • cultural/ religious/ other beliefs and values of child or parents
    • views of other healthcare professionals invovled in healthcare and welfare
    • which choice is the least restrictive of minor’s future options

Question 18

What should doctors seek before seeking legal advice when tx that they believe is in the interests of a child is refused?

Answer 18

Drs should consult other colleagues before seeking legal advice where tx that they believe is in the interests of a child is refused.

Consider involving the MDT/ independent advocate/ designated Dr. for child protection.

this is in cases where parents refuse tx despite it being in non capacitous child’s best interests, or when a capacitous child and their parents refuse.

Question 19

how should courts make decisions for a minor and what act guides this?

Answer 19

Courts act under the Children act of 1989

when a court determines any qu related to 1) upbringing or 2) administration of child’s property or the application of any income arising from it the child’s welfare must be the courts paramount consideration.

Courts must decide based on best interests which takes into account –> every kind of consideration capable of impacting the decisions (medical/ emotional/ sensory (pain/ pleasure/ suffering) and instinctive considerations.)

Question 20

Short answer for how should decisions be made for a minor w out capacity?

Answer 20

parents are expected to and courts MUST make decisions on the basis of what is all things considered best for the child. –> BEST INTERESTs

Drs when offering advice on medical options must also do so in child’s best interests.

Question 21

•Why might these decisions (for non capacitous minor) prove contentious?

Answer 21

What is best for a child is a judgement. There is no objective test and therefore there is scope for disagreement.

Parents disagree with each other, with drs, drs may disagree with each other.

Disagreements may be sincere and well motivated, parents may love child and genuinely want what is best for them, drs who disagree are not necessarily incompetent.

PLUS, unlike courts parents may have the same obligation to more than one child –> they may have to balance the interests of all their children when deciding what to do. Drs, like courts, are expected to act in the best interests of the patient before them.

Question 22

What are the ethical considerations in play:

describe the considerations of parental authority

Answer 22

• Parental authority –> parents legally responsible for the care of their children and must therefore have authority necessary to exercise this responsibilty.
• They also have the right to “private and family life” (Art 8 HRA)
• threshold for interference in parental authority is “good enough” parenting
• this gives parents considerable autonomy in how they raise their children

Question 23

What are the ethical considerations in play:

in the child’s best interests?

Answer 23

Multifactorial:

• generally considered best children are raised by their parents in families
• health is significant factor but not the only factor in well being –> what is in best interests will be an all things considered judgement
• includes the need of the child to develop overtime his/her capacity for autonomy
  
  • thus children may be permitted to experiment with e.g. self care even though this may put their health at some risk
  • neither parents nor drs should be over bearing

Question 24

If a child lacks capacity does overriding preference overrided their autonomy?

Answer 24

NO. There is a difference between the exercise of autonomy and the expression of preference.

A child who lacks capacity is not autonomous, disregarding their preference is not overriding their autonomy because they have no autonomy.

Question 25

Ethical considerations at play: Dr’s professional obligations

Answer 25

• To act in child’s best interests
• recognising that these are multifactorial including:
  
  • that the interests of children may be bound to those of their parents and siblings
  • the need to maintain a therapeutic relationship w child and parents
• obliged to challenge parental authority through the courts but only if necessary
• drs must consider parents and others close to the child but patient must be drs first concern.
• drs also have to treat children with respect involving them in discussions/ decisions about their care.

Question 26

What does GMC guidance say for drs making decisions involving minors?

Answer 26

–‘a. involve children and young people in discussions about their care

–b. be honest and open with them and their parents, while respecting confidentiality

–c. listen to and respect their views about their health, and respond to their concerns and preferences

–d. explain things using language or other forms of communication they can understand

–e. consider how you and they use non-verbal communication, and the surroundings in which you meet them

–f. give them opportunities to ask questions, and answer these honestly and to the best of your ability

–g. do all you can to make open and truthful discussion possible, taking into account that this can be helped or hindered by the involvement of parents or other people

h. give them the same time and respect that you would give to adult patients.’

Question 27

What are the ethical considerations that courts have to make?

Answer 27

• Have to look as objectively as possible at the best interests (in the round) of the child before them.
• Do not have to consider the interests of the parents as such but do have to consider their legitimate rights and authority as parents

–Can refuse to make an order

–Child’s interest are paramount

• Will be guided by doctors but may have to decide between medical opinions where doctors disagree
• Medical opinions will be considered against e.g. child’s right to life and the parents’ reasons for opposing the doctors’ judgement

Question 28

What other circumstances (other than immediate health saving tx) may raise ethical concerns?

Answer 28

• Parental refusal of immunisation
• parental request for non therapeutic intervention e.g. male circumcision or surgical correction of physical characteristics
• parental refusal of tx for non life threatening conditions