Article Text

PDF

Going legal
  1. Tony Lopez1,
  2. Rachel Howells2,
  3. Simon Lindsay3
  1. 1Department of Child Health, Derriford Hospital, Plymouth, UK
  2. 2Department of Child Health, Royal Devon and Exeter Hospital, Exeter, UK
  3. 3Department of Clinical Risk, Bevan Brittan, Bristol, UK
  1. Correspondence to Dr Tony Lopez, Department of Child Health, Derriford Hospital, Derriford, Plymouth PL6 8DH, UK; tony.lopez{at}nhs.net

Abstract

A 16-year-old girl is admitted with a paracetamol overdose, but refuses treatment. This article explores the legal, ethical and practical aspects of this case, which led ultimately to an application to the court for a judicial order.

  • General Paediatrics
  • Ethics
  • medico legal

Statistics from Altmetric.com

The case

A 16-year-old, vulnerable and troubled young girl lives in a residential care. The local authority have responsibility for her under a care order. Her mother retains parental responsibility, but she spends little time with her daughter, and is often difficult to locate.

The girl presented to the emergency department (ED) at one o'clock in the morning. She had taken several overdoses of paracetamol in the previous two days. She disclosed these overdoses to her carers late on the evening of her admission. The patient's mother is unavailable. It is the girl's fifteenth admission in just over a year. On each occasion she had taken an overdose of paracetamol. On several occasions she had staggered a series of overdoses.

In the ED, the patient allowed a single blood sample to be taken, but made it clear she did not want any treatment. The blood sample later indicated a paracetamol level above the standard treatment line.

Should the patient's refusal be respected?

The doctors in the ED began with an assessment of the patient's best interests. They knew that a staggered overdose of paracetamol implied a risk of severe liver damage and possibly death. Intravenous N-acetylcysteine (NAC) was likely to protect against this risk. To have the best chance of doing so, it would have to be started as soon as possible (see box 1).

Box 1

Intravenous N acetyl cysteine

N-acetylcysteine (NAC) prevents paracetamol's metabolite N-acetyl-p-benzoquinoneimine from damaging hepatocytes. The side effects of NAC are attributed to histamine release. They include rash, pruritus, bronchospasm and anaphylactic reactions. Other side effects are rare, but include hyponatraemia in young children, and status epilepticus. NAC can interfere with clotting and this may explain the frequent mild derangement of clotting following treatment.1

It was clearly in the patient's best interests to start IV NAC immediately. If so, would it be right to respect her refusal? If the patient had reached the age of majority (18 years) and was competent, her refusal could not be overridden. A doctor forcing treatment upon her might be subject to a legal action for battery (see box 2). This would be true, even if the patient's decision to refuse treatment was likely to lead to death. However, the patient is a minor, not an adult. It is clear, from both legal and professional guidance, that the courts will protect from litigation a doctor who seeks to treat a minor in an emergency (boxes 3 and 4).

Box 2

Battery

One person touching another without consent constitutes battery; a trespass to the person. Battery is a tort—a wrong for which the court can award damages. It is rare for a doctor to act wholly without consent. As a result very few actions are taken in battery, but might arise if, for example, a patient consented for one operation, but mistakenly a different one is carried out. Equally it might arise if a patient consented for a limited examination under anaesthesia, but whilst anaesthetised, further surgery takes place without consent. It is no defence that the surgeon acted with the best of intentions, nor that they carried out the operation to the highest technical standard.

Box 3

The medicolegal definition of an emergency

It is generally accepted that it takes at least 2 hours to obtain a declaration from the court. Any unforeseen situation calling for medical action before this time, in order to safeguard the life of a patient or to prevent serious harm, must therefore be made without the benefit of such a declaration. This, from a medicolegal viewpoint, is an emergency.

Box 4

Acting in an emergency

Professional guidance

General Medical Council: ‘0–18 years: guidance for all doctors’

‘You can provide emergency treatment without consent to save the life of, or prevent serious deterioration in the health of a child or young person’

Legal guidance

Lord Templeman in Gillick

‘I accept that if there is no time to obtain a decision from the court a doctor may safely carry out a treatment in an emergency if the doctor believes the treatment to be vital to the survival or health of an infant and notwithstanding the opposition of a parent’

Mental Health Act Code of Practice 2008 (36.34)

‘In an emergency, where a 16 or 17-year-old who is capable of consenting refuses to have treatment, it is likely that the young person's decision could be overruled and the clinician could act without anyone's consent if the refusal would in all likelihood lead to their death or to severe permanent injury’.

Treating the patient

It was decided that the patient's refusal could not be respected, because she was a minor and the situation an emergency. Later, the patient did not resist when the intravenous cannula was sited. Treatment began at 5am. She was admitted to the children's ward shortly afterwards.

The patient pulls out her IV line

Twelve hours later the patient pulled out her IV line and left the ward. She returned after an hour, refusing to say where she had been. When told that she must recommence her IV NAC in order to complete 24 hours of treatment, she refused.

Now, imagine you are the consultant paediatrician beginning your on call

Time: 18:00

You are told that a 16-year-old girl is refusing to complete a 24 h course of IV NAC. You know it is likely that she has taken a staggered overdose. You know that paracetamol was detected in her blood. You reason that it is in her best interests to continue the full 24 hours of treatment. However, the situation has changed since the line was first sited—can it still be argued that the situation is an emergency (see box 5)?

Box 5

Does giving a second 12 hours of IV N-acetyl cysteine constitute a medico-legal emergency

Much of the benefit of her N-acetylcysteine (NAC) will have been felt in the first 10 hours of treatment.2 UK guidance states that treatment with IV NAC should continue over 24 hours, but there is little evidence of benefit after 18 hours.2 A delay in recommencing her treatment is unlikely to have serious consequences and therefore does not constitute a medicolegal emergency.

Looking through her notes

Several discussions were recorded with the poisons advice centre. The consensus is that her overdoses are frequent and often staggered, and should be treated with IV NAC for at least 24 hours, if any paracetamol is detected in her blood.

First thoughts—could she be sectioned?

Could the patient be detained and treated under the Mental Health Act? You know that a section of the Act allows the clinician to hold the patient in hospital, without needing the input of a psychiatrist or social worker.

You locate the on call manager. He thinks it might be appropriate, but does not know which section of the Act is the right one, and he is uncertain of who should sign the relevant forms.

Time: 18:45 hours

You call the on-call Child and Adolescent Mental Health Service (CAMHS) consultant. She explains the workings of the Act (box 6) but advises against using its powers. Holding the patient under section 5(2) would only be justified if there was a prospect of using section 2 or 3. Yet the patient's regular psychiatrist had not used the Mental Health Act to enforce any part of her treatment. Perhaps it was not felt to be in the patient's longterm interests. It seems inadvisable to use the MHA simply to get round her refusal to consent.

Box 6

Mental Health Act (MHA)

Within England and Wales the Mental Health Act (MHA) allows for the detention and treatment of those who have a ‘disorder or disability of the mind’ if their mental disorder is of a nature or degree justifying detention and detention is necessary for their safety or health or for the protection of others. It does not allow for the detention for treatment of a physical disorder unless that is a manifestation of a mental disorder, for example to force feed an anorexic. A person may be detained under sections 2 and 4 (assessment) or section 3 (treatment). There is no age limit to the powers of detention.

If a child is already an inpatient, Section 5 (2) may be used to detain that child for up to 72 hours. (but detention could not be applied, for example, in an out patient setting). The purpose of the detention is to enable assessment for admission under Section 2 or 3. It follows that if there is no prospect of using Section 2 or 3, then there is no justification for using Section 5.

It is the senior doctor responsible for the child's care, who has ‘holding power’ under the Act. In order to apply Section 5 (2) the doctor must complete a report which is handed to the hospital manager so that an application for compulsory admission can be made.

Time: 19:15

You decide to telephone a consultant hepatologist, and explore alternatives to IV NAC (see box 7). He suggests using oral NAC, but admits that he has no direct experience of it. You resolve to discover if oral NAC is available locally, before discussing this with the patient. Over the phone the pharmacist tells you that there is no oral NAC preparation available in the hospital. However, the IV form can be given orally. She is not sure of the dose. She does know that the taste is bitter. She suggests another treatment, methionine, which might be more palatable.

Box 7

Oral alternatives to IV N acetyl cysteine

Paracetamol replaced salicylate as the drug of choice in overdose in the 1970s. A number of treatments were proposed and reported in small observational trials. Methionine became the standard antidote in many units. Two prospective observational studies were published in 1981 indicating better liver protection with IV N-acetylcysteine (NAC). No randomised controlled trial was carried out.3

Intravenous NAC became the accepted treatment of choice, but little work was done to demonstrate its superiority over oral NAC. The evidence, in fact, is that oral NAC is equally efficacious.4 The oral preparation however has a putrid taste and must be given over 48 hours—both factors which might significantly limit its acceptability in this group.

Time: 20:00

Conversation with the patient—she rejects oral treatment

Hopeful that a solution has been found, you decide to put these options to the patient. This is your first conversation with her. It becomes clear it is not the cannula that she objects to. She tells you that she does not require any treatment, because she believes that paracetamol is not harmful. She refuses to listen to any summary of risks and benefits associated with the various options. Suddenly she changes tack, declaring that after all this effort to damage her liver, why should she want to take something to protect it? Given a choice between IV and oral treatment, she says flatly, she wants neither.

After a conversation lasting 12 minutes you leave the patient. You now wish you had begun the evening by meeting with the patient. You had not understood her refusal. Meeting her has allowed you to begin evaluating her capacity (see box 8). Her refusal to listen to an appraisal of the options means that it is unlikely that she her understands the situation. In addition, statements are contradictory. You discuss the matter with the senior sister who sat in during the interview. She agrees that the patient appears to lack capacity.

Box 8

Assessing competence

The terms competence and capacity are, for the most part, used interchangeably. Lawyers are more likely to speak of competence when discussing a child who is under 16 year of age, and capacity when discussing a young person 16 or older.

The Mental Capacity Act 2005 (MCA) sets out clearly what capacity means. The patient must be able to understand information put to them, when this is done in the clearest and most appropriate way. They must be able to retain that information, in order to use it in reaching a decision. They must be able to weigh up the information. Lastly, they must be able to communicate, not just their final decision, but any uncertainties or questions.

It is usually agreed that Gillick competence, for a child less than 16, implies the maturity and intelligence to meet the standards set out in the MCA for over 16s.

Competence is situation and time specific. The child who is competent one day, may not be so the next. Toxins, drugs and the effects of illness may alter a patient's competence.

Decisions are of varied complexity. The child who is competent to consent to a wrist examination after a fall, may not be competent to consent to a transplant.

Experience can have different effects. The young person who has relapsed twice after chemotherapy is in a strong position to say he wants no further treatment, while a child, overwhelmed by needle phobia, may be rendered incompetent by that fear.

In reaching a decision on competence it is the clinician proposing the treatment who is the final arbiter—although others may challenge the decision in court. The clinician should always start with the child, at whatever level the child's development allows. It may be necessary to use sign language or an interpreter.

Competence should be fostered by careful explanation, and by answering questions. Explanation may come from other sources such as a nurse or parent. Every effort should be made to help the child understand their situation. Written information may be helpful. The process may take time, and should not be unnecessarily rushed.

It is always wise to speak to others who may have some useful insight. Parents or carers are perhaps most useful. Remember, however, that it is the child's present state of mind, and the nature of the specific question being asked, that determine competence.

Time: 20:30

You attend the handover. A foundation grade doctor, fresh from a stint in adult medicine, suggests that since the patient is 16 and lacks competence, she might be treated against her wishes under the Mental Capacity Act 2005 (MCA). You are aware of the MCA. You recall that its provisions cover young people from their 16th birthday, but you lack familiarity with its powers, and its limits.

Time: 20:50

You decide to call the Trust's legal manager. He puts you through to a solicitor. You explain the situation, and ask about using the MCA. He asks just one question: would her treatment involve a deprivation of liberty? You explain that for the treatment to be successful she would have to stay in the hospital for at least another 12 hours. The patient has absconded once so it is quite likely that this prolonged stay would be against her wishes. The solicitor is clear: such circumstances would amount to a deprivation of liberty, and if so, the MCA cannot be used (see box 9).

Box 9

Mental Capacity Act 2005

The Mental Capacity Act 2005 covers England and Wales, and provides a statutory framework for those 16 or over who lack capacity to make decisions for themselves.

There are five principles within the Act.

1. Capacity is presumed. The responsibility for proving an individual's lack of capacity falls upon the person who challenges it.

2. Everything possible must be done to enhance an individual's capacity when it is doubtful.

3. Unwise decisions are not proof that an individual lacks capacity.

4. Decisions must be taken in the individual's best interest.

5. Choices made on behalf of an individual should be those that least restrict his or her freedom whilst achieving an outcome in his or her best interest.

The Act allows clinicians caring for young people aged 16 or 17 to make decisions on their behalf if the person lacks capacity. The clinician should bear in mind the opinions of those who know the young person, especially his or her parents, but he does not require their consent. The clinician is protected from liability providing he has taken reasonable steps to ascertain that the young person lacks capacity (see box 7) and providing his actions are in keeping with the principles of the Act.

The Act does not allow actions which will involve the deprivation of liberty in those aged 16 or 17. In such circumstances admission may be enforced through the MHA, through parental consent or through the courts.

You ask the solicitor if the local authority, in whose care the patient resides, might give consent. The solicitor draws your attention to the recent government guidance on the zone of parental control. He believes, that in this situation, proxy consent from anyone with parental responsibility might fall outside the zone. If this is so, the local authority cannot give consent (see box 10).

Box 10

The zone of parental control

In 2005 the European Court of Human Rights ruled in the case of Storck v Germany. Ms Storck was a 15-year-old, detained and forcibly treated in a private clinic at the behest of her father. The Court ruled that states should have in place effective supervision and review of decisions to detain or treat children without their consent. Driven by this decision and others, the Mental Health Act Code of Practice 2008 introduced a new concept; the zone of parental control.

Those with parental responsibility can only consent when the matter falls within this zone. The parameters of the zone will vary from one case to the next. Professionals are asked to consider the following:

1. ‘The nature and invasiveness of what is to be done to the patient (including the extent to which their liberty will be curtailed)—the more extreme the intervention, the more likely it falls outside the zone;

2. Whether the patient is resisting—treating a child or young person who is resisting needs greater justification;

3. The general social standards in force at the time concerning the sorts of decisions it is acceptable for parents to make—anything that goes beyond the kind of decisions parents routinely make will be more suspect;

4. The age, maturity and understanding of the child or young person—the greater these are, the more likely it will be that it should be the child or young person who takes the decision; and

5. The extent to which a parent's interests may conflict with those of the child or young person—this may suggest that the parent will not act in the child or young person's best interests.

Only one example is given in the Code: a 14-year-old with severe anorexia who requires ‘force feeding’ and will not consent. This, it states, is outside the zone of parental control. The parents cannot consent. Instead admission must be undertaken under the Mental Health Act.

Time: 21:05

The Solicitor concludes that all avenues for obtaining consent, or leave to treat the patient against her will, have been exhausted. Only the court can now authorise treatment. He tells you he will phone a barrister.

Time: 21:15

When the barrister phones you, she asks for a concise summary of the case.

She then asks a number of questions:

  • Are you the treating consultant?

  • How well do you know the patient?

  • Are you sure she lacks competence? If so, why?

  • Can you illustrate her state of mind, perhaps by quoting her?

  • What medical intervention do you consider to be in her best interest?

  • Have you weighed up alternative therapies?

It is at this point that you realise that you have not recorded anything in the patient's notes. You are particularly disappointed to find that although your impressions of the conversation with the patient remain clear, you are unable to quote her accurately. The barrister finishes the call, and tells you she will speak with a judge.

While you wait for a call from either the barrister or the judge, you use your time to discuss the situation with nursing staff and junior doctors. Then you record in the notes, the many conversations of the night, beginning with the one you had with the patient.

Time: 21:45

The judge telephones. He has already heard much of the story from the barrister. He is keen to clarify what the treatment will entail. He wants to know the degree to which the patient is likely to resist the siting of an intravenous line.

With these issues clarified, he speaks to the patient. He soon decides that she lacks competence. When he finishes speaking to the patient, she leaves the room and you take the telephone. The judge tells you that he will sign an order to allow the treatment you have described, and that you may deprive her of liberty in order to give the treatment. You may restrain her, but may use only the minimum force necessary (see box 11).

Box 11

The powers of the Court

The High Court has an inherent jurisdiction which can be called on to protect the welfare of a child. In the past this often involved wardship, in which the Court assumed all the responsibilities of parenthood.

The Children Act 1989 encouraged the courts to move away from using such sweeping powers. Instead a number of clearly defined options were made available. These include emergency protection orders, assessment orders and care orders. The Court can also rule on a particular aspect through the use of a specific issue order. Such an order might do no more than specify that a child undergoes a particular blood test, for example for HIV.

Time: 22:20

Although the nursing staff had been concerned about the use of restraint, they are more comfortable knowing that such action is now lawful. The situation is explained to the patient.

When the line is sited, she does not resist. Treatment is restarted, and the rest of the night passes quietly.

Discussion

Consent, although implicit in all our interventions with patients, is something we rarely think about. It is often only when someone refuses medical treatment, as this patient did, that the complexity of consent in childhood becomes apparent.

Handling this same situation, what could have done better? An earlier meeting with the patient would have given a clear feel for the issues from her perspective. Pointless enquiries might have been avoided if it had been known that she was refusing all treatments, not just intravenous options. During this meeting an early impression of her capacity might have been formed. To turn this impression into a firm conviction others might have helped: nursing staff, carers from her home, her psychiatrist. The latter could have guided the clinician on the value of using the MHA.

Despite managing single handedly, the clinician wished he had made records in the notes as he progressed. Perhaps the greatest omission was the failure to record the conversation with the patient when it was fresh in the mind, and while it was still possible to record quotes.

Overriding the refusal of a young person is uncomfortable, all the more so for those who might be called to give the treatment, or to restrain a young person who refuses. The clinician should always be mindful of the views and concerns of trainees and nursing staff.

Key points

  • Establish early on what you believe is in the best interests of the patient.

  • Remember that the courts will protect from litigation a doctor who seeks to treat a minor in an emergency.

  • Meet those involved, especially the young person, at the earliest opportunity and use those encounters to begin an assessment of capacity.

  • Record your conversations, especially those with the young person.

  • Be prepared to quote the young person in discussion with barristers and judges.

  • Remember that the Mental Capacity Act cannot be used to justify the deprivation of a young person's liberty for medical treatment.

  • Remember that those with parental responsibility may not be able to give consent if it falls outside the Zone of Parental Control.

  • Remember that nursing staff and others may have very strongly held views on the restraint of young people.

Further reading

No attempt has been made to provide direct references for legal statements made in this paper. Often these are difficult to locate for those outside the legal professions. Like medical references they are little use to those outside the profession unless they are clearly contextualised as part of a review of the whole theme.

Instead we would recommend reading the Code of Practice for the Mental Health Act 2007 and the Mental Capacity Act 2005, as well as the relevant sections in any of these medico legal texts: “Mental Health: Law and Practice 2011” by Professor Phil Fennell, published by Jordan's Bristol, ISBN: 978 1 84661 240 4; and “Medical Law: Text, Cases, and Materials” by Emily Jackson, OUP Oxford, England, ISBN: 978-0199551927.

Acknowledgments

We would like to thank Dr Gabriella Butler for her very helpful proof reading and comments.

References

View Abstract

Footnotes

  • Competing interests None.

  • Provenance and peer review Not commissioned; externally peer reviewed.

Request permissions

If you wish to reuse any or all of this article please use the link below which will take you to the Copyright Clearance Center’s RightsLink service. You will be able to get a quick price and instant permission to reuse the content in many different ways.