Won’t Consent? Can’t Consent! Refusal of Medical Treatment
CHARLOTTE MCCAFFERTY Solicitor
The case of Re L (Medical Treatment: Gillick Competency)  2 FLR 810 raises yet again the issue of whether teenagers should be forced to have medical treatment against their will, and the way the courts deal with the question. What is of concern is the reasoning behind the decision in the case that treatment should be given, and the manner in which the teenager’s consent was dispensed with.
The case concerned a 14-year-old girl who had received extremely serious burns as a result of falling into a bath of scalding hot water and which, if not operated on, would lead to gangrene and a slow and horrible death. The operation required a blood transfusion and the girl, despite the severity of her condition, clearly stated that she did not want a transfusion; the doctors did not think it appropriate to explain to her the detailed consequences of not having it. She was a Jehovah’s Witness of long-standing who was described by the President of the Family Division, Sir Stephen Brown, as ‘a sincere adherent to the faith’ and mature for her age. Some 2 years earlier, when she must have been about 12, she had signed her first ‘no blood card’, and only 10 weeks prior to the hearing she signed another one. Her mother and stepfather supported her decision but the court decided otherwise, declaring that the girl was not Gillick-competent, and ordered that the transfusion could take place.
There are no reported cases in England and Wales in which the court has allowed a Jehovah’s Witness child to refuse a blood transfusion (nor, indeed, have their parents been allowed to do so on their behalf), and the result in Re L therefore comes as no surprise. Despite describing her as mature for her age the judge still decided that she should not be able to refuse the treatment. This will also come as no surprise: a previous case, Re E (A Minor) (Wardship: Medical Treatment)  1 FLR 386 (decided in 1991) concerned a boy aged 15¾ who, like the girl in Re L, was also a devout Jehovah’s Witness. The judge, Ward J, described his task as ‘excruciatingly difficult’: in order to live, the boy needed a blood transplant which he did not want to have. He knew that he would die if he did not have it but, like the girl in Re L, neither the doctors nor the judge had told him how prolonged and painful his death would be. Ward J held that the boy was not competent to withhold his consent because he did not fully understand the horrendous way in which he would die if he did not have the transfusion. Having held him to lack capacity, Ward J held that, although influential, the boy’s capacity was not decisive.
But it is worthwhile to examine this interpretation of capacity for a moment. Was the boy in fact given a real opportunity to decide whether to consent or not? Consent implies knowledge of what is being consented to: if full information is withheld, informed (and therefore valid) consent can never be given. In both Re E and Re L the doctors and the court made it impossible for the teenagers to give or withhold effective consent. Harvey Jeff, in ‘Consent to Medical Procedures: Paternalism, Self Determination or Therapeutic Alliance?’ (1985) Law Quarterly Review 432, has pointed out that ‘[i]n Decorum XVI of the Hippocratic Corpus physicians are advised to conceal most things from their patients, as when given information “many patients have taken a turn for the worse”’. That must stand as the reason for withholding the relevant information from the teenagers. But one wonders whether, despite Decorum XVI, a doctor would have withheld the information from an adult patient if life-saving medical treatment was at stake. Where children are concerned, however, their lack of competence to make an informed decision can be imposed upon them by the professionals involved, and their consent can be dispensed with by the court using its inherent jurisdiction or its powers under the Children Act 1989.
But, as we have seen in Re E (as, indeed, has been held in later cases), Ward J did not consider the boy’s competence to be the issue. His wishes simply had to be weighed in the balance when deciding what his welfare dictated, and his age would give his wishes more weight. So the question of whether the boy had full enough knowledge to make an informed decision was not the end of the matter; in the interests of protecting him information could be withheld, and in the interests of preserving his life his capacity could be disregarded (see Re E (above), at p 393).
Sir Stephen Brown P used a different route to get to the decision that the girl in Re L could be treated. No reference was made to Re E, despite the similarity in facts. Instead, he relied on the Court of Appeal case of Re R (A Minor) (Wardship: Medical Treatment)  1 FLR 190 which concerned a girl, aged 15, who had suffered visual and auditory hallucinations and suicidal thoughts. She had periods of lucidity but when she lapsed into what was described by the senior consultant as a ‘psychotic state’, an application was made to the court for permission to administer anti-psychotic drugs to her. While making it clear that the question of Gillick competence was ‘not decisive’ in his decision, Lord Donaldson MR held that she was not Gillick competent because the House of Lords in Gillick had been considering the ‘normal’ child whose competence develops in progressive stages; a girl who was subject to ‘fluctuating mental disability’ could not fall into that category. But was there any impairment in the girl’s mental health in Re L? Apparently not, yet having made reference to the passage of Lord Donaldson MR’s judgment which excludes from Gillick competency those minors whose mental state changes ‘from day-to-day and week-to-week’, Sir Stephen Brown P decided that the girl in Re L was also not Gillick competent: ‘[s]he is certainly not Gillick competent in the context of all the necessary details which it would be necessary for her to be able to form a view about’. Does this refer to her lack of knowledge? If so, was it necessary to refer at all to Re R when the facts were so much at variance with Re L? Ward J in Re E (above), at p 391 decided that the boy had ‘insufficient understanding of the pain he has yet to suffer … I find he has no realisation of the full implications which lie before him as to the process of dying’. Would it not have been more respectful of the girl in Re L if the judge had followed this path instead of impliedly comparing her to a teenager with a mental health problem?
So what is the practical effect of the difference in the two approaches? Not much, it could be said, since the end result is the same: the teenagers were each forced to undergo treatment, and in the cases of Re E and Re L against their strongly held religious beliefs and clearly expressed wishes. Although the judgment in Re E forced the teenager to have medical treatment which was abhorrent to him, it is arguable that it did so in a less demeaning way; he was shown to have been prevented from consenting by having knowledge withheld from him. The same (albeit limited) respect cannot be said to have been accorded to the teenager in Re L who by implication had mental impairment, if not disorder, thrust upon her. It is no doubt the case that if courts acceded to the wishes of teenagers in such cases and if as a result one young person were to die or experience avoidable suffering, there would be massive public outcry. But in achieving the necessary treatment, is it not better to leave the minor with as much dignity intact as possible? To prevent her being able to give, and therefore to withhold, valid consent by keeping information from her is one thing: to deny her an acknowledgment that she possesses ‘the staged development of a normal child’ is quite another.
Won’t Consent? Can’t Consent! Refusal of Medical Treatment