Medical treatment: consent and withdrawal
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2. Child Patients

There is no specific Ordinance dealing with consent in relaltion to Child Patients.

Section 2.12.1 of the Code provides that:
“Consent given by a child under the age of 18 years is not valid, unless the child is capable of understanding the nature and implications of the proposed treatment. If the child is not capable of such understanding, consent has to be obtained from the child’s parent or legal guardian.”

Consent to treatment for the benefit of the child from a parent or guardian would protect the medical practitioner from a claim in tort of battery or trespass to the person. Medical practitioners can lawfully act to safeguard a child’s life or health without parental agreement on the basis of necessity. Parents or guardians do not have a right to veto treatment in such circumstances.

Parents do not have an absolute right to determine what treatment a child receives.

Section 2.12.4 of the Code states:
“It is usually sufficient to have consent from one parent. However, in relation to major or controversial medical procedures, there may be the duty to consult the other parent. If the parents cannot agree and the dispute cannot be resolved, the doctor should seek legal advice as to whether it is necessary to apply to court for an order.”

The decision of parents (to consent to or refuse treatement) can be overruled by the Court. Each case would be decided on its own circumstances and facts.

In an English Court case in 1976, (Re D (Wardship: Sterilisation)), the Court refused to endorse the decision of a parent to have an 11-year-old handicapped girl sterilised as the girl’s mental disability was not so profound that she would never be able to decide such matters for herself. In another case (Re B (A Minor) (Wardship: Sterilisation) [1988]), the Court authorised the sterilisation of a much more severly handicapped 17-year-old girl.

The key is what would be in the child’s “best interest”. The interests of a child are not limited to interests in physical health but must also relate the child’s welfare.

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