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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 although
parents should normally be involved in cases of children under 16, in
“exceptional case”, it was for a doctor to prescribe contraception
without informing the parents of that child’s request for contraceptive
advice or treatment. Mrs Gillick had several daughters under the age of
16 and sought a declaration that the guidance gave unlawful advice
which adversely affected parental rights and duties. She lost the
first hearing in the High Court, then won a unanimous decision in the
Court of Appeal, but ultimately lost 3:2 in the House of Lords .
Lord Fraser formulated five criteria for doctors contemplating
whether to provide such an under age girl with contraceptive advice and
treatment without reference to her parents. He stressed that the
doctor should always seek to persuade the girl to tell her parents or
to agree to the doctor informing her parents. However, if the girl
still refused to agree to either of these suggestions, the doctor could
give advice and treatment provided, in the doctor’s opinion, the
following conditions were satisfied:
(a) the girl understood the advice;
(b) the doctor could not persuade her to inform her parents or to allow
the doctor to inform her parents that she was seeking contraceptive
advice;
(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 to
give her contraceptive advice and treatment or both without parental
consent
Put another way, the doctor would be expected to preserve the
confidentiality of the consultation provided the preceding conditions
were satisfied; conversely, if these conditions were not fulfilled, the
doctor would be entitled to breach the duty of confidentiality and
inform the parents.
Under condition (a) there is some scope for interpreting the level
of understanding but how deep should the understanding be? Should it
cover psychological and emotional implications of the treatment?
Should she be able to understand the impact on the Family? Lord
Scarman’s judgement provides some indication of the answers to these
queries. He spoke of the parental right to determinate medical
treatment terminating when the child below the age of 16 achieved
“sufficient understanding and intelligence” to be able to understand
fully what was being proposed. He also expected the girl to
understand: moral and family questions relating to the treatment
especially the girl’s relationship with her parents; long term problems
associated with the impact of a pregnancy and its termination; risks to
health of sexual intercourse at her age. This appears to require an
extremely deep and perceptive understanding of the consequences of the
proposed treatment, which is arguably more demanding than that
possessed by most adults who decided to decide to use contraception.
Lords Templeman and Brandon dissented from the majority judicial
opinion and Lord Templemann memorably said “There are many things a
girl under 16 needs to practice but sex is not one of them”
Essentially what Gillick achieved was to create a climate of
expectation that a child will be consulted and his or her wishes and
feelings will be taken into account , when any important decision is
made in respect of his or her upbringing. What Gillick did not achieve
was to create a rule that the wishes and feelings of a child will
always prevail over the wishes and feelings of the persons with
parental responsibility, even though the child has sufficient
competence to understand the full implications of the decision to be
made.
The question of who has the responsibility to decide when there is
disagreement between a competent child and the persons with parental
responsibility for him has arisen mainly in the context of medical
decisions . It should be recalled that Gillick v West Norfolk and
Wisbech Area Health Authority was concerned with whether a competent
child could consent to medical treatment, and whether such consent
could be countermanded by a person with parental responsibility.
Subsequently two serious cases involving very sick children came before
the courts in which the children concerned were refusing medical
treatment, and where there was a doubt about whether there was
authority to treat the children without their consent . In Re R (A
Minor) (Wardship: Medical Treatment) the girl concerned was 15 and Re
W (A Minor) (Wardship: Medical Treatment) she was 16.
In Re R (A Minor) (Wardship: Medical Treatment) the child had a
history of serious mental illness such that, in the past, she had been
ill enough to be admitted to hospital under sections 2 and 3 of the
Mental Health Act 1983. Subsequently she was placed in an adolescent
psychiatric unit. Concern grew about her mental state such that the
senior consultant in the unit stated that he believed R to be in a
psychotic state, and he wanted the permission of the local authority,
who had parental responsibility for R under a care order, to administer
anti-psychotic medication to her. This consent was given, but R
refused to take the drugs. A social worker, who had experience with
cases involving persons who are mentally ill, then had a three-hour
telephone conversation with R after which he decided that R sounded
lucid and rational and he did not regard her as sectionable. The Local
authority therefore took the view that they could not give permission
for R to have drugs administered against her will. As a consequence of
this refusal of permission, the adolescent unit took the view that they
could not continue to care for R unless they were given a free hand in
relation to the administration of medication. The psychiatrist was of
the opinion that, without medication, R was likely to lapse into a
fully psychotic state under which she would be a serious suicidal risk,
and potentially very violent and unpredictable in her behaviour. He
was also of the opinion that R was currently mature enough to
understand 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 asked
the court to determine whether R could be treated without her consent
in the light of the House of Lords ruling in Gillick.
In Re R (A Minor) there were three issues to be resolved: did R have
the capacity to refuse consent to medical treatment; if she did, could
she nonetheless be treated if a person with parental responsibility
gave consent; and did the court have the power to override the decision
of a child irrespective of whether the child was competent to consent?
In relation to capacity, the Court of Appeal ruled that R did not have
the capacity to make decisions about her own medical treatment. It was
by no means satisfied that R understood the implications of the
treatment being withheld, as distinct from understanding what was
proposed to be done by way of treatment. The evidence had established
that R’s mental state fluctuated, so that even if, on a good day, she
was capable of reaching the standard of competence required to meet the
Gillick criteria, on other the standard of competence required to meet
the Gillick criteria, on other days she was not only Gillick
incompetent, 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 or
acquired on a day-to-day or week-to week basis. In the case of mental
disability, 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 the
power to override the refusal to consent to medical treatment by a
competent child, only Lord Donaldson expressed a view. He was clearly
of the opinion that in a case whether a Gillick competent child refuses
treatment, but someone with parental responsibility consents, that
treatment can lawfully be given to the child. He acknowledged that the
child’s refusal of consent will be a very important factor in the
doctor’s decision whether or not to treat, but held that it does not
stop treatment going ahead if consent is obtained from another person
with parental responsibility. In relation to the court’s position, all
of the judges had no hesitation in finding that a court has the power
to override the refusal of consent by a competent child .
Within the framework of the guidelines given by Lord Fraser of
Tullybelton in Gillick there needs to be an intention to act in the
best interests of the girl concerned. Doing so would not then involve
the commission of a criminal offence. It must be noted that the courts
are prepared to override a minor's parents' wishes if it is not in her
best interests, but Re P (A Minor) reinforces the need to do what is
best for the child:
'The welfare of the girl as a ward of court was the paramount factor
in the court's decision. The objection of the parents to the abortion
and their offer to care for the current child must be taken into
consideration, but could not weigh in the balance against the needs of
the ward so as to prevent the termination which was necessary in her
best interests.'
This is a case in point for one of the issues that we must consider
in relation to Sandra. Applying the Gillick test to this current
situation we must consider the following. Does Sandra understand any
advice that has been given to her, both in relation to her pregnancy
and or the abortion? Does she have “sufficient understanding and
intelligence” to be able to understand fully what was being proposed?
Does she understand the moral and family questions that relate to the
treatment? Is she aware of the long term problems associated with the
impact of a pregnancy and its termination?
It is impossible to address these issues on the information that is
provided to us, it is likely that giving the gravity of the decisions
to be made, including the effect of late termination, it is unlikely
that Sandra will have sufficient understanding and intelligence.
Therefore it will follow that the other parts of the Gillick test can
not be met and that it would not be in the best interests of Sandra for
Dr Turner to allow her to deal with these issues on her own, unless of
course there is some compelling reason for not telling her parents of
which 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 of
parental consent, Dr Turner can arrange for Sandra to have an abortion
when she is 25 weeks pregnant.
The Offences against the Person Act 1861 makes it a criminal offence
punishable by imprisonment to procure or perform an abortion. A
termination of pregnancy can be legally performed, however, since the
1967 Abortion Act provides a defence against the prosecution of a
doctor who does so.
The relevant provision, of the Abortion Act as amended by the later
Human Fertilisation and Embryology Act 1990, is section 1 which is as
follows:
If two registered medical practitioners are of the opinion, formed in good faith:
(a) that the pregnancy has not exceeded its twenty-fourth week and
that the continuance of the pregnancy would involve risk, greater than
if the pregnancy were terminated, of injury to the physical or mental
health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury
to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the
life of the pregnant woman, greater than if the pregnancy were
terminated; or
(d) that there is a substantial risk that if the child were born it
would suffer from such physical or mental abnormalities as to be
seriously handicapped .
It is important to consider, albeit briefly, the implications of the
medical profession if they carry out an abortion that does not fall
within these guidelines. The case of Jepson v. The Chief Constable of
West Mercia Police Constabulary concerned a successful application for
permission to proceed with a claim for judicial review of the police's
original decision not to investigate doctors who authorised an abortion
for cleft lip and palate after 24 weeks. Abortion for foetal disability
is legal under the Abortion Act 1967 (as amended by the Human
Fertilisation and Embryology Act 1990) if two doctors consider that
'there is a substantial risk that if the child were born it would
suffer from such physical or mental abnormalities as to be seriously
handicapped. ' This demonstrates that the medical profession must
adhere to the strict exceptions created by the Abortion Act.
It is immediately apparent that these grounds for a legal
termination of pregnancy are extremely broad. Only section 1(1)(a)
includes a time limit and therefore an abortion is, at least in
principle, legal at any gestation provided that the requirements of
section 1(1)(d) are satisfied, i.e. that there is a substantial risk
of a serious handicap. No guidance is given in the statute on the
interpretation of these terms. This omission has the advantage of not
fettering the discretion of the medical profession but simultaneously
fails to provide the guidance sought by doctors. Furthermore, it is
clear from the wording of the statute that a medical opinion formed in
good faith is sufficient to satisfy the legal requirements. Hence, a
substantial risk of serious handicap need not actually exist provided
that two doctors are willing to certify in good faith that it does so
exist.
The Abortion Act 1967 (as amended) expressly allows for doctors to
conscientiously object to being involved in termination of pregnancy.
In Barr v. Matthews, Alliott J. indicated that this may be a legal, as
well as an ethical, obligation in such circumstances to refer the
patient to a colleague. The more difficult question arises where an
abnormality is seen which raises the possibility of handicap, but where
the chances of the handicap being serious are uncertain, for example,
with an apparently isolated cleft lip, or a minor abnormality of the
hands or feet.
If a doctor feels unable to offer a termination of pregnancy, but
believes that other doctors are likely to take a different view, the
patient may be referred for a further opinion but it is difficult to
conceive of this situation occurring readily in the case of a difficult
congenital abnormality. This is because the decision will already have
been made by a small group of sub specialists often working in a
tertiary setting, and it is therefore not easy to see other doctors
wishing to contradict this 'expert' opinion .
The relevant RCOG guidance states that 'where a woman feels strongly
that she is unable to accept a probability of risk or a degree of
handicap that her medical practitioners consider less than substantial
or serious ... the practitioners may decide that abortion has become
necessary to protect her mental health '. To the extent either that a
less serious condition or feature or a low probability of a more
serious one could create a risk to the woman's mental health, then an
abortion could indeed be in her interests according to the terms of
this section. There will be limits, however, to the extent to which
less serious-especially relatively minor disabilities-could present
this kind of risk to a woman .
The term “seriously handicapped” is potentially handicapped is
potentially vague. It is suggested that “substantial risk” may assume
that the serious handicap is more likely than not . This is a reading
of the word substantial the act does not say that it must be on the
balance of probabilities. Given the factual and moral significance of
the law it is vital to consider the meaning of the terms “substantial
risk” and seriously handicapped.” In reality the situation, as it
presents itself to the doctor, will necessitate a link between the two
phrases in an assessment of risk and level of handicap. Glanville
Williams has suggested that:
“[The medical practitioner] may, of course, take the view that a
relatively low risk justifies termination if the risk is of relatively
serious handicap; in common sense, the two factors are inversely
related. Even when the doctor thinks that the foetal indication is not
sufficiently present, the fact that the patient is extremely depressed
by worry that the child may be affected can itself be a reason for
termination on the health ground”
There appears to be no consensus on what degree of mental or
physical damage an justify abortion up to term under s 1(1) (d). The
possibility of a wide interpretation and the creation of a liberal
regime of abortion for relatively minor handicap means that the courts
may well be called on to make a further determination of what is meant
by seriously handicapped. An analogy could be made with the
withdrawing or non-treatment of the seriously handicapped newborn.
There would, however, need to be an awareness of the differential legal
status accorded to the foetus and the neonate. The latter has been
accorded full legal status by virtue of having an existence independent
of the mother.
Therefore on the basis of this information it would seem that it is
possible for Dr Turner to arrange for Sandra to have an abortion, but
it is important to be aware of the limitations to this right. The
important consideration her is that foetus is suffering from a serious
genetic disorder, this will be the reason as to why she will be allowed
to have such an abortion so late on her pregnancy. This coupled with
the fact of her age and the mental distress it is likely to cause her
at such a young age to deal with this disability, are likely to be
factors that sway the decision for an abortion. She must be aware
that Dr Turner can refuse this request, although he will have to refer
her if he is unable to perform this abortion or if he does not agree to
the performance of this abortion.
(c) Failure to Warn Karen of the Risk of Paralysis
To understand why consent is required is to understand a fundamental
human right. It must be recognised that every human being “however
immature or mentally impaired, possesses a fundamental worth and
dignity which are not lost as long as he or she is alive. Contrary to
the view of some, human worth and dignity do not depend on acquiring
and retaining some particular level of intellectual ability or capacity
for choice or for communication” . Thus the ethical principle that
every person has a right to self-determination and is entitled to have
their autonomy respected finds its expression in law through the notion
of consent. It is said that, the assertion to the right to autonomous
medical decision-making is paramount and that the only justification
for imposing medical treatment on a patient against his will is to
prevent harm to others.
Further, it is argued that illness is a value-laden concept and any
form of paternalism runs the risk of doctors branding patients with
“illness” and subsequent treatment. It is not difficult to see how
this principle can apply to mental illness.
English law stipulates that in order for consent to be valid it must
be “real” meaning that the patient must know what he or she is
consenting to. This means that the “nature and purpose” of the
proposed treatment must be understood by the patient.
When considering the nature of consent, three separate issues, are
to be determined. Each of these issues may be analysed by reference to
the nature and extent of the doctor’s duty, .i.e. to inform or to
ensure voluntariness and competence. The first question that must be
addressed is did the patient have capacity in law? In broad terms this
is said to be the ability to understand the nature and purpose of the
proposed care and be able to weight the risks of that treatment and
this will be discussed in more detail below. The second question
that then must be addressed is whether or not the person given consent
appropriately informed beforehand. Patients must have all the necessary
information in order to make a choice. Sidaway v Bethlem Royal Hospital
Governors concluded that that the patient must be aware of the “nature
and 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 position
to choose freely, and freedom of choice predicates, not only the full
knowledge of the circumstances on which the exercise of choice is
conditional, so that he may be able to choose wisely, but the absence
of any feeling of constraint so that nothing shall interfere with the
freedom of his will”.
The law on failure to warn and causative issues has very recently
been modified and the case of Chester v Afshar is essential in this
incidence. A detailed analysis of this case must be undertaken in
order to address the issue of any recourse that Karen may have as a
result of the failure of Dr Hutchins to warn of he risks involved in
her operation.
In a case with a very similar fact pattern, the claimant, Miss
Chester, had suffered lumbar pain for a number of years and had been
treated by a rheumatologist . He eventually advised her to take
surgical advice from the defendant neurosurgeon with a view to
relieving the pain. She was very unwilling to consider surgery but she
did consult Mr Fari Afshar who encouraged her to have surgery on her
three bulging disks but failed to warn her of the small (1-2%) inherent
risk of neurological injury that could cause partial paralysis. The
claimant had the surgery performed by the defendant just three days
later. Unfortunately, she suffered partial paralysis most probably due
to non-negligent cauda equina injury (the very injury that should have
been - but was not - the subject of a warning by the defendant) .
At the trial, Judge Taylor decided that the operation had not been
performed negligently but that the defendant surgeon had been negligent
in that he had failed to warn the claimant of the 1-2% risk of serious
neurological injury. He further found that if she had been so warned
she would not have consented to have the operation performed three days
later as happened. The claimant would have taken time to reflect on
matters and would have sought further advice before she decided what to
do. She did not claim that she would not have had the surgery at a
later date. The risk of the injury occurring was statistically very
small and also random, thus he held that on the balance of probability
Miss Afshar would not have suffered the injury if the operation had
taken place on another occasion The trial judge rejected the
defendant's lawyers' argument that the claimant had suffered no damage
as a result of the defendant surgeon's failure to warn because his lack
of warning did not increase the risk that the injury would materialise
in the future. As the claimant did not claim she would never have
agreed to the surgery at some future time she had suffered no injury as
a consequence of his failure to warn her and for this reason her claim
should fail .
The Court of Appeal unanimously rejected the defendant's appeal.
Like the majority of the House of Lords, they were apparently
influenced and attracted by the line of Australian judicial authority
in Chappel v Hart .
The situation before Chester was that a Claimant had to show that
had she been warned of the risks of an operation, she would not have
undergone it. It was therefore much easier for the Defendant to
defend, particularly where, as in Mrs Chester’s case, (and in the
present case) the operation was the only appropriate one to address the
Claimant’s problem. However, Mrs Chester did not say that; she said
that if she had been informed she would have considered the position
carefully, and would not have had the surgery when she did have it.
Most importantly, however, she could not say that she would not
ultimately have undergone the surgery.
The majority upheld the claim on policy grounds, and found causation
established since the injury was intimately involved with the duty to
warn. They acknowledged that the decision was contrary to the
established principals of causation, but felt the conclusion would
otherwise be unjust. The scope and ambit of this departure from the
legal principles of causation have since been restricted somewhat by
the Court of Appeal in Paul Davidson Taylor (a firm) v White , but the
current implications in clinical negligence claims are that a Claimant
no longer needs to show that he would not ever have undergone an
operation if he had been advised of the risks of it beforehand. He
need 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, although
he might have had the operation subsequently (possibly after
contemplation and further advice).
It therefore can be concluded that Karen will be likely to be able
to 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 ever
gone the operation, the risk is sufficient enough, not to justify her
having to prove this. She will simply need to show that in light of
the risk she would have given this matter some serious consideration
before agreeing to undergo the operation. Further the rule in Chester
v Afshar demonstrates that she will recover the damages in full.
Bibliography
Cases
Barr v. Matthews (1999) 52 B.M.L.R. 217
Bowater v Rowley Regis Corpn [1994] KB 476
Chappel v Hart (1998) 195 CLR 232
Chester v Afshar [2002] EWCA Civ 724; [2003] QB 356
Jepson v The Chief Constable of West Mercia Police Constabulary [2003] EWHC 3318
Paul Davidson Taylor (a firm) v White [2004] All ER (D) 304 (Nov)
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