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Reform Commission > Publications
> Dr Alex Apler, "Do the lawyers have any idea?"
SEMINAR - Consent to medical
treatment by young people (Sydney, 17 May 2004)
Dr Alex Apler, "Do the lawyers have any
idea?"
The practice of medicine may be said to be guided by
ethical principles, clinical judgment and the law. A medical practitioner
relies on his or her clinical judgment when treating patients. Clinical
judgment alone, however, may not solve every problem in medical practice.
Assessing capacity of a young person to understand and consent to proposed
medical treatment may raise issues that are not purely clinical. In such a
situation, a medical practitioner may look to ethics or legal advice for
answers that a clinical approach does not provide.
To begin with, how does a medical practitioner
know when the adolescent can consent to his or her own treatment? The
doctor, faced with this problem, may adopt a clinical, practical approach,
which takes into account the history of the relationship with the young
patient, past involvement of the young person’s parents, and the risks
associated with the treatment proposed. If the young patient has been able
to understand and comply with treatment in the past, without objection
from his or her parents, the doctor may be more likely to initiate another
course of treatment, especially if that treatment is relatively minor. The
doctor may encourage the young person to inform his or her parents, or
contact the parents directly, with the young person’s consent.
The matter of obtaining consent from a young
person becomes more difficult where the young person is not known to the
doctor, there is a history of parents objecting to treatment or where the
treatment proposed is controversial and carries considerable risk to the
patient. The doctor may, again, adopt a practical approach, weighing up
the benefits and risks involved in treating and not treating the patient.
If the treatment is urgent or life saving, the doctor may feel justified
in dispensing the treatment, despite potential objections from the parents
or questions about the young person’s capacity to provide the necessary
consent. If the treatment is not urgent, however, the doctor may consider
other approaches that may help reduce the difference between the
adolescent’s and his or her parents’ attitudes towards treatment. The
doctor may offer to meet with the adolescent and his or her parents to
discuss the reasons for wanting or refusing specific treatment. They may
be concerned about the treatment and associated risks. The family may hold
specific attitudes about the illness or its treatment, influenced by
cultural, religious or personal beliefs. A doctor who helps the family
understand how it came to hold its views, and provides information about
the illness may help the family reach agreement regarding the proposed
treatment.
The special difficulties associated with
adolescents consenting to treatment may also be reduced by focusing on the
adolescent’s developing sense of autonomy. The issue of autonomy is
central to the notions of consent and confidentiality. The adolescent, in
a medical consultation, may be acutely sensitive to inequalities within
the medical relationship and the extent to which he or she may exercise
control over the relationship, the disclosed information and the decisions
regarding treatment. The adolescent may be concerned about the extent to
which his or her parents are aware and are involved in treatment. The
concerns of the adolescent regarding treatment often reflect the wider
problems in the lives of adolescents mastering responsibility and autonomy
and attempting to define their roles in their relationships with parents,
teachers, police and others. Addressing the issues of autonomy and
confidentiality can help alter the adolescent’s attitude towards
treatment.
The most difficult cases, in which the clinical
approaches I've discussed may not be enough, are the ones where treatment
is considered necessary but not life saving and where the young person and
his or her parents disagree about the need for treatment proposed. Request
for contraceptive treatment may be such a case. Contraception may be
contentious and not life-saving. Consent from the parents may be required,
but the young person may not want her parents to know. What could a doctor
do?
The doctor may consider the medical ethics
relevant to the treatment encounter. The NSW Medical Board, in a document
titled “The duties of a doctor
registered with the NSW Medical Board”,
set out general principles in relation to the practice of medicine. These
principles include the following:
- Make the care of the patient your primary
concern;
- Listen to patients and respect their
views;
- Give patients information in a way they
can understand;
- Respect the right of patients to be fully
involved in decisions about their care;
- Respect and protect confidential
information.
In the
subsection titled “Maintaining trust”, the document lists the following
additional principles:
- Give patients full information about their
condition, treatment and prognosis. You should provide this
information to those with parental responsibility where patients lack
the maturity to understand what their condition or its treatment may
involve, provided you judge it to be in the child’s best
interests;
- Wherever possible, be satisfied that the
patient has understood what is proposed and consents to it, before you
provide treatment or investigate a patient’s medical condition;
- Respect the right of patients to decline
treatment…
These principles
emphasise informed consent, confidentiality and exercise of choice in
respect of treatments proposed. Following these principles, the doctor may
keep the request for contraception confidential, and dispense the
contraceptive, provided the young person has been adequately informed
about the treatment and its side effects. These guidelines, however, do
not address the central issue in many of these cases, which is how to
determine whether the young person has sufficient maturity and
understanding to avoid the need for the doctor to obtain consent from the
young person’s parents.
If a doctor feels that neither clinical nor
ethical approaches have resolved a particular problem, the doctor may turn
to a legal advisor for help. The doctor may then be told about the
uncertainty regarding adolescents between the ages of 14 and 16 and the
importance of obtaining parental consent, wherever possible. The doctor
may also be told that an adolescent can consent to treatment if he or she
has sufficient understanding and intelligence to understand fully what is
proposed. This may, however, leave the doctor pondering what
“understanding fully” means. The doctor may decide that the young patient,
who can discuss the pros and cons of the treatment and its alternatives,
has a level of understanding of the treatment proposed, but is this
understanding “sufficient"? The doctor may be left with a difficult
problem of deciding whether the information obtained in the course of a
clinical assessment is sufficient to satisfy a legal test.
In the end, a doctor may adopt the most
practical approach available, which is to choose an ethical option most
likely to avoid harm to the patient and accord with the patient’s wishes.
In relation to contraception, for instance, the doctor may decide that
prescription of contraception is most likely to avoid harm in a patient
who is sexually active anyway. Prescription in this context may confer
additional benefits by helping to develop rapport between the doctor and
the young patient and open dialogue about health and lifestyle issues that
may be relevant, such as sexually transmitted diseases and drug use.
However, this practical approach, in the end only side-steps a difficult
legal question of determining the capacity of the adolescent to consent to
the medical treatment proposed. |