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Published: Fri, 02 Feb 2018
Sandra’s Decision not to discuss the pregnancy or abortion with her parents
The first issue that arises in this scenario is that relating to whether or not Doctor Turner is obligated to inform Sandra’s parents:
(a) That she is pregnant and;
(b) That she wishes to have to an abortion
It is important to consider the case law that surrounds the issue of parental consent in relation to children that are 15. Case law in the mid-1980’s and 1990s has established the concept of “Gllick competence :” a level of maturity, as ascertained by a court, which is possessed by a child “of sufficient age and understanding” to make its own decisions. Lord Donaldson, MR in Re W mentioned the “Flak Jacket” of consent to protect healthcare professionals from any liability for assault or battery.
The case of Gillick v West Norfolk and Wisbech Area Health Authority was concerned with a 1980 DHSS guidance which stated that althoughparents should normally be involved in cases of children under 16, in“exceptional case”, it was for a doctor to prescribe contraceptionwithout informing the parents of that child’s request for contraceptiveadvice or treatment. Mrs Gillick had several daughters under the age of16 and sought a declaration that the guidance gave unlawful advicewhich adversely affected parental rights and duties. She lost thefirst hearing in the High Court, then won a unanimous decision in theCourt of Appeal, but ultimately lost 3:2 in the House of Lords .
Lord Fraser formulated five criteria for doctors contemplatingwhether to provide such an under age girl with contraceptive advice andtreatment without reference to her parents. He stressed that thedoctor should always seek to persuade the girl to tell her parents orto agree to the doctor informing her parents. However, if the girlstill refused to agree to either of these suggestions, the doctor couldgive advice and treatment provided, in the doctor’s opinion, thefollowing conditions were satisfied:
(a) the girl understood the advice;
(b) the doctor could not persuade her to inform her parents or to allowthe doctor to inform her parents that she was seeking contraceptiveadvice;
(c) she was very likely to begin or to continue having sexual intercourse with or without contraceptive treatment;
(d) unless she received contraceptive advice or treatment her physical or mental health or both were likely to suffer and
(e) that it was in the best interests of the child for the doctor togive her contraceptive advice and treatment or both without parentalconsent
Put another way, the doctor would be expected to preserve theconfidentiality of the consultation provided the preceding conditionswere satisfied; conversely, if these conditions were not fulfilled, thedoctor would be entitled to breach the duty of confidentiality andinform the parents.
Under condition (a) there is some scope for interpreting the levelof understanding but how deep should the understanding be? Should itcover psychological and emotional implications of the treatment? Should she be able to understand the impact on the Family? LordScarman’s judgement provides some indication of the answers to thesequeries. He spoke of the parental right to determinate medicaltreatment terminating when the child below the age of 16 achieved“sufficient understanding and intelligence” to be able to understandfully what was being proposed. He also expected the girl tounderstand: moral and family questions relating to the treatmentespecially the girl’s relationship with her parents; long term problemsassociated with the impact of a pregnancy and its termination; risks tohealth of sexual intercourse at her age. This appears to require anextremely deep and perceptive understanding of the consequences of theproposed treatment, which is arguably more demanding than thatpossessed by most adults who decided to decide to use contraception.
Lords Templeman and Brandon dissented from the majority judicialopinion and Lord Templemann memorably said “There are many things agirl under 16 needs to practice but sex is not one of them”
Essentially what Gillick achieved was to create a climate ofexpectation that a child will be consulted and his or her wishes andfeelings will be taken into account , when any important decision ismade in respect of his or her upbringing. What Gillick did not achievewas to create a rule that the wishes and feelings of a child willalways prevail over the wishes and feelings of the persons withparental responsibility, even though the child has sufficientcompetence to understand the full implications of the decision to bemade.
The question of who has the responsibility to decide when there isdisagreement between a competent child and the persons with parentalresponsibility for him has arisen mainly in the context of medicaldecisions . It should be recalled that Gillick v West Norfolk andWisbech Area Health Authority was concerned with whether a competentchild could consent to medical treatment, and whether such consentcould be countermanded by a person with parental responsibility. Subsequently two serious cases involving very sick children came beforethe courts in which the children concerned were refusing medicaltreatment, and where there was a doubt about whether there wasauthority to treat the children without their consent . In Re R (AMinor) (Wardship: Medical Treatment) the girl concerned was 15 and ReW (A Minor) (Wardship: Medical Treatment) she was 16.
In Re R (A Minor) (Wardship: Medical Treatment) the child had ahistory of serious mental illness such that, in the past, she had beenill enough to be admitted to hospital under sections 2 and 3 of theMental Health Act 1983. Subsequently she was placed in an adolescentpsychiatric unit. Concern grew about her mental state such that thesenior consultant in the unit stated that he believed R to be in apsychotic state, and he wanted the permission of the local authority,who had parental responsibility for R under a care order, to administeranti-psychotic medication to her. This consent was given, but Rrefused to take the drugs. A social worker, who had experience withcases involving persons who are mentally ill, then had a three-hourtelephone conversation with R after which he decided that R soundedlucid and rational and he did not regard her as sectionable. The Localauthority therefore took the view that they could not give permissionfor R to have drugs administered against her will. As a consequence ofthis refusal of permission, the adolescent unit took the view that theycould not continue to care for R unless they were given a free hand inrelation to the administration of medication. The psychiatrist was ofthe opinion that, without medication, R was likely to lapse into afully psychotic state under which she would be a serious suicidal risk,and potentially very violent and unpredictable in her behaviour. Hewas also of the opinion that R was currently mature enough tounderstand the nature and the implications of the treatment proposed,and of sufficient understanding to make a decision in her own right. The local authority therefore made the child a ward of court, and askedthe court to determine whether R could be treated without her consentin the light of the House of Lords ruling in Gillick.
In Re R (A Minor) there were three issues to be resolved: did R havethe capacity to refuse consent to medical treatment; if she did, couldshe nonetheless be treated if a person with parental responsibilitygave consent; and did the court have the power to override the decisionof a child irrespective of whether the child was competent to consent?
In relation to capacity, the Court of Appeal ruled that R did not havethe capacity to make decisions about her own medical treatment. It wasby no means satisfied that R understood the implications of thetreatment being withheld, as distinct from understanding what wasproposed to be done by way of treatment. The evidence had establishedthat R’s mental state fluctuated, so that even if, on a good day, shewas capable of reaching the standard of competence required to meet theGillick criteria, on other the standard of competence required to meetthe Gillick criteria, on other days she was not only Gillickincompetent, she was actually sectionable. Lord Donaldson MR ruled that“no child in that situation can be regarded as “Gillick Competent… Gillick competence is a developmental concept and will not be lost oracquired on a day-to-day or week-to week basis. In the case of mentaldisability, that disability must also be taken into account,particularly where it is fluctuating in effect.”
In relation to whether a person with parental responsibility had thepower to override the refusal to consent to medical treatment by acompetent child, only Lord Donaldson expressed a view. He was clearlyof the opinion that in a case whether a Gillick competent child refusestreatment, but someone with parental responsibility consents, thattreatment can lawfully be given to the child. He acknowledged that thechild’s refusal of consent will be a very important factor in thedoctor’s decision whether or not to treat, but held that it does notstop treatment going ahead if consent is obtained from another personwith parental responsibility. In relation to the court’s position, allof the judges had no hesitation in finding that a court has the powerto override the refusal of consent by a competent child .
Within the framework of the guidelines given by Lord Fraser ofTullybelton in Gillick there needs to be an intention to act in thebest interests of the girl concerned. Doing so would not then involvethe commission of a criminal offence. It must be noted that the courtsare prepared to override a minor’s parents’ wishes if it is not in herbest interests, but Re P (A Minor) reinforces the need to do what isbest for the child:
‘The welfare of the girl as a ward of court was the paramount factorin the court’s decision. The objection of the parents to the abortionand their offer to care for the current child must be taken intoconsideration, but could not weigh in the balance against the needs ofthe ward so as to prevent the termination which was necessary in herbest interests.’
This is a case in point for one of the issues that we must considerin relation to Sandra. Applying the Gillick test to this currentsituation we must consider the following. Does Sandra understand anyadvice that has been given to her, both in relation to her pregnancyand or the abortion? Does she have “sufficient understanding andintelligence” to be able to understand fully what was being proposed? Does she understand the moral and family questions that relate to thetreatment? Is she aware of the long term problems associated with theimpact of a pregnancy and its termination?
It is impossible to address these issues on the information that isprovided to us, it is likely that giving the gravity of the decisionsto be made, including the effect of late termination, it is unlikelythat Sandra will have sufficient understanding and intelligence. Therefore it will follow that the other parts of the Gillick test cannot be met and that it would not be in the best interests of Sandra forDr Turner to allow her to deal with these issues on her own, unless ofcourse there is some compelling reason for not telling her parents ofwhich we are unaware.
(b) Whether or not an Abortion can be performed at the 25th Week of a pregnancy
The next issue that is raised is whether or not, irrespective ofparental consent, Dr Turner can arrange for Sandra to have an abortionwhen she is 25 weeks pregnant.
The Offences against the Person Act 1861 makes it a criminal offencepunishable by imprisonment to procure or perform an abortion. Atermination of pregnancy can be legally performed, however, since the1967 Abortion Act provides a defence against the prosecution of adoctor who does so.
The relevant provision, of the Abortion Act as amended by the laterHuman Fertilisation and Embryology Act 1990, is section 1 which is asfollows:
If two registered medical practitioners are of the opinion, formed in good faith:
(a) that the pregnancy has not exceeded its twenty-fourth week andthat the continuance of the pregnancy would involve risk, greater thanif the pregnancy were terminated, of injury to the physical or mentalhealth of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injuryto the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to thelife of the pregnant woman, greater than if the pregnancy wereterminated; or
(d) that there is a substantial risk that if the child were born itwould suffer from such physical or mental abnormalities as to beseriously handicapped .
It is important to consider, albeit briefly, the implications of themedical profession if they carry out an abortion that does not fallwithin these guidelines. The case of Jepson v. The Chief Constable ofWest Mercia Police Constabulary concerned a successful application forpermission to proceed with a claim for judicial review of the police’soriginal decision not to investigate doctors who authorised an abortionfor cleft lip and palate after 24 weeks. Abortion for foetal disabilityis legal under the Abortion Act 1967 (as amended by the HumanFertilisation and Embryology Act 1990) if two doctors consider that’there is a substantial risk that if the child were born it wouldsuffer from such physical or mental abnormalities as to be seriouslyhandicapped. ‘ This demonstrates that the medical profession mustadhere to the strict exceptions created by the Abortion Act.
It is immediately apparent that these grounds for a legaltermination of pregnancy are extremely broad. Only section 1(1)(a)includes a time limit and therefore an abortion is, at least inprinciple, legal at any gestation provided that the requirements ofsection 1(1)(d) are satisfied, i.e. that there is a substantial riskof a serious handicap. No guidance is given in the statute on theinterpretation of these terms. This omission has the advantage of notfettering the discretion of the medical profession but simultaneouslyfails to provide the guidance sought by doctors. Furthermore, it isclear from the wording of the statute that a medical opinion formed ingood faith is sufficient to satisfy the legal requirements. Hence, asubstantial risk of serious handicap need not actually exist providedthat two doctors are willing to certify in good faith that it does soexist.
The Abortion Act 1967 (as amended) expressly allows for doctors toconscientiously object to being involved in termination of pregnancy. In Barr v. Matthews, Alliott J. indicated that this may be a legal, aswell as an ethical, obligation in such circumstances to refer thepatient to a colleague. The more difficult question arises where anabnormality is seen which raises the possibility of handicap, but wherethe chances of the handicap being serious are uncertain, for example,with an apparently isolated cleft lip, or a minor abnormality of thehands or feet.
If a doctor feels unable to offer a termination of pregnancy, butbelieves that other doctors are likely to take a different view, thepatient may be referred for a further opinion but it is difficult toconceive of this situation occurring readily in the case of a difficultcongenital abnormality. This is because the decision will already havebeen made by a small group of sub specialists often working in atertiary setting, and it is therefore not easy to see other doctorswishing to contradict this ‘expert’ opinion .
The relevant RCOG guidance states that ‘where a woman feels stronglythat she is unable to accept a probability of risk or a degree ofhandicap that her medical practitioners consider less than substantialor serious … the practitioners may decide that abortion has becomenecessary to protect her mental health ‘. To the extent either that aless serious condition or feature or a low probability of a moreserious one could create a risk to the woman’s mental health, then anabortion could indeed be in her interests according to the terms ofthis section. There will be limits, however, to the extent to whichless serious-especially relatively minor disabilities-could presentthis kind of risk to a woman .
The term “seriously handicapped” is potentially handicapped ispotentially vague. It is suggested that “substantial risk” may assumethat the serious handicap is more likely than not . This is a readingof the word substantial the act does not say that it must be on thebalance of probabilities. Given the factual and moral significance ofthe law it is vital to consider the meaning of the terms “substantialrisk” and seriously handicapped.” In reality the situation, as itpresents itself to the doctor, will necessitate a link between the twophrases in an assessment of risk and level of handicap. GlanvilleWilliams has suggested that:
“[The medical practitioner] may, of course, take the view that arelatively low risk justifies termination if the risk is of relativelyserious handicap; in common sense, the two factors are inverselyrelated. Even when the doctor thinks that the foetal indication is notsufficiently present, the fact that the patient is extremely depressedby worry that the child may be affected can itself be a reason fortermination on the health ground”
There appears to be no consensus on what degree of mental orphysical damage an justify abortion up to term under s 1(1) (d). Thepossibility of a wide interpretation and the creation of a liberalregime of abortion for relatively minor handicap means that the courtsmay well be called on to make a further determination of what is meantby seriously handicapped. An analogy could be made with thewithdrawing or non-treatment of the seriously handicapped newborn.There would, however, need to be an awareness of the differential legalstatus accorded to the foetus and the neonate. The latter has beenaccorded full legal status by virtue of having an existence independentof the mother.
Therefore on the basis of this information it would seem that it ispossible for Dr Turner to arrange for Sandra to have an abortion, butit is important to be aware of the limitations to this right. Theimportant consideration her is that foetus is suffering from a seriousgenetic disorder, this will be the reason as to why she will be allowedto have such an abortion so late on her pregnancy. This coupled withthe fact of her age and the mental distress it is likely to cause herat such a young age to deal with this disability, are likely to befactors that sway the decision for an abortion. She must be awarethat Dr Turner can refuse this request, although he will have to referher if he is unable to perform this abortion or if he does not agree tothe performance of this abortion.
(c) Failure to Warn Karen of the Risk of Paralysis
To understand why consent is required is to understand a fundamentalhuman right. It must be recognised that every human being “howeverimmature or mentally impaired, possesses a fundamental worth anddignity which are not lost as long as he or she is alive. Contrary tothe view of some, human worth and dignity do not depend on acquiringand retaining some particular level of intellectual ability or capacityfor choice or for communication” . Thus the ethical principle thatevery person has a right to self-determination and is entitled to havetheir autonomy respected finds its expression in law through the notionof consent. It is said that, the assertion to the right to autonomousmedical decision-making is paramount and that the only justificationfor imposing medical treatment on a patient against his will is toprevent harm to others.
Further, it is argued that illness is a value-laden concept and anyform of paternalism runs the risk of doctors branding patients with“illness” and subsequent treatment. It is not difficult to see howthis principle can apply to mental illness.
English law stipulates that in order for consent to be valid it mustbe “real” meaning that the patient must know what he or she isconsenting to. This means that the “nature and purpose” of theproposed treatment must be understood by the patient.
When considering the nature of consent, three separate issues, areto be determined. Each of these issues may be analysed by reference tothe nature and extent of the doctor’s duty, .i.e. to inform or toensure voluntariness and competence. The first question that must beaddressed is did the patient have capacity in law? In broad terms thisis said to be the ability to understand the nature and purpose of theproposed care and be able to weight the risks of that treatment andthis will be discussed in more detail below. The second questionthat then must be addressed is whether or not the person given consentappropriately informed beforehand. Patients must have all the necessaryinformation in order to make a choice. Sidaway v Bethlem Royal HospitalGovernors concluded that that the patient must be aware of the “natureand purpose” of the treatment and be aware of all the “material risks”to be able to give real consent.
The third element of consent is that it be voluntarily and freely given, as Scott LJ stated
“a man can not be said to be truly “willing” unless he is in a positionto choose freely, and freedom of choice predicates, not only the fullknowledge of the circumstances on which the exercise of choice isconditional, so that he may be able to choose wisely, but the absenceof any feeling of constraint so that nothing shall interfere with thefreedom of his will”.
The law on failure to warn and causative issues has very recentlybeen modified and the case of Chester v Afshar is essential in thisincidence. A detailed analysis of this case must be undertaken inorder to address the issue of any recourse that Karen may have as aresult of the failure of Dr Hutchins to warn of he risks involved inher operation.
In a case with a very similar fact pattern, the claimant, MissChester, had suffered lumbar pain for a number of years and had beentreated by a rheumatologist . He eventually advised her to takesurgical advice from the defendant neurosurgeon with a view torelieving the pain. She was very unwilling to consider surgery but shedid consult Mr Fari Afshar who encouraged her to have surgery on herthree bulging disks but failed to warn her of the small (1-2%) inherentrisk of neurological injury that could cause partial paralysis. Theclaimant had the surgery performed by the defendant just three dayslater. Unfortunately, she suffered partial paralysis most probably dueto non-negligent cauda equina injury (the very injury that should havebeen – but was not – the subject of a warning by the defendant) .
At the trial, Judge Taylor decided that the operation had not beenperformed negligently but that the defendant surgeon had been negligentin that he had failed to warn the claimant of the 1-2% risk of seriousneurological injury. He further found that if she had been so warnedshe would not have consented to have the operation performed three dayslater as happened. The claimant would have taken time to reflect onmatters and would have sought further advice before she decided what todo. She did not claim that she would not have had the surgery at alater date. The risk of the injury occurring was statistically verysmall and also random, thus he held that on the balance of probabilityMiss Afshar would not have suffered the injury if the operation hadtaken place on another occasion The trial judge rejected thedefendant’s lawyers’ argument that the claimant had suffered no damageas a result of the defendant surgeon’s failure to warn because his lackof warning did not increase the risk that the injury would materialisein the future. As the claimant did not claim she would never haveagreed to the surgery at some future time she had suffered no injury asa consequence of his failure to warn her and for this reason her claimshould fail .
The Court of Appeal unanimously rejected the defendant’s appeal.Like the majority of the House of Lords, they were apparentlyinfluenced and attracted by the line of Australian judicial authorityin Chappel v Hart .
The situation before Chester was that a Claimant had to show thathad she been warned of the risks of an operation, she would not haveundergone it. It was therefore much easier for the Defendant todefend, particularly where, as in Mrs Chester’s case, (and in thepresent case) the operation was the only appropriate one to address theClaimant’s problem. However, Mrs Chester did not say that; she saidthat if she had been informed she would have considered the positioncarefully, and would not have had the surgery when she did have it. Most importantly, however, she could not say that she would notultimately have undergone the surgery.
The majority upheld the claim on policy grounds, and found causationestablished since the injury was intimately involved with the duty towarn. They acknowledged that the decision was contrary to theestablished principals of causation, but felt the conclusion wouldotherwise be unjust. The scope and ambit of this departure from thelegal principles of causation have since been restricted somewhat bythe Court of Appeal in Paul Davidson Taylor (a firm) v White , but thecurrent implications in clinical negligence claims are that a Claimantno longer needs to show that he would not ever have undergone anoperation if he had been advised of the risks of it beforehand. Heneed only show either:
a. that she would not have had the operation ever; or,
b. that she would not have had the operation at the time, althoughhe might have had the operation subsequently (possibly aftercontemplation and further advice).
It therefore can be concluded that Karen will be likely to be ableto argue that she would not have gone the operation at this time. Whilst she will not be able to demonstrate that she would not have evergone the operation, the risk is sufficient enough, not to justify herhaving to prove this. She will simply need to show that in light ofthe risk she would have given this matter some serious considerationbefore agreeing to undergo the operation. Further the rule in Chesterv Afshar demonstrates that she will recover the damages in full.
Barr v. Matthews (1999) 52 B.M.L.R. 217
Bowater v Rowley Regis Corpn  KB 476
Chappel v Hart (1998) 195 CLR 232
Chester v Afshar  EWCA Civ 724;  QB 356
Jepson v The Chief Constable of West Mercia Police Constabulary  EWHC 3318
Paul Davidson Taylor (a firm) v White  All ER (D) 304 (Nov)
Re F (mental patient: sterilization)  2 AC 1
Re P (A Minor)  1 FLR 272
Re R (A Minor) (Wardship: Medical Treatment)  4 ALL ER 177
Re S (A Minor) (Consent to Medical Treatment)  2 FLR 1065
Re W (A Minor) (Wardship: Medical Treatment  4 ALL ER 627
Re W (a minor) (Medical Treatment)  Fam 64
Sidaway v Bethlem Royal Hospital Governors  1 ALL ER 1018 (CA); affd  AC 871,  1 ALL ER 643 (HL)
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