Medical Treatment: Right of Refusal (Hansard, 5 November 1998)

§ The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman)
My Lords, it is a general principle of law and medical practice that any adult person with the mental capacity to make a valid decision has the right to choose whether or not to accept medical treatment. A child of any age with the mental capacity to consent to medical treatment is entitled to do so without parental involvement. Where a child has refused medical treatment either the parent or the court may override the refusal where treatment would be in the child's best interests. When there is a dispute between a child and parent a reference should be made to the court. Where the child does not have the capacity to make the decision, the person with parental responsibility may do so on the child's behalf. If parental refusal was not considered to be in the child's best interest, the medical practitioner would need to refer the matter to the court if he or she considered the medical treatment to be necessary.

§ The Countess of Mar
My Lords, I thank the noble Baroness for that full Answer. Is she aware that there is a growing list of children diagnosed as suffering from ME who are being placed by social services on the at risk register? Is she aware of the enormous trauma this causes in families, which is not good for children suffering from ME, and the fact that some of the children are being forced into psychiatric hospitals for treatment which many practitioners agree is not the right treatment for ME?
In the light of the decision by the High Court Queen's Bench Division on 15th October 1998 that referrals by community physicians to social services are illegal; that the use of Section 47 of the Children Act in these cases is also unlawful; and that parents should have the right to choose treatment for their children, will the Minister now instruct social services and all those physicians dealing with these children in the current state of the law and enable parents once more to exercise their right to consent? Will she also consider whether it is appropriate to lift the restrictions imposed by the court on the Olie family?

§ Baroness Hayman
My Lords, as regards the final point, the House will understand if I do not comment on a particular case, especially where the child in question is a ward of court. It would not be appropriate so to do.
The noble Countess referred to a number of cases. I am aware that there has been controversy around the treatment of certain children and young adults suffering from ME/chronic fatigue syndrome. This is an area where treatment is a matter of controversy. The working 369 group announced by the Chief Medical Officer, the membership of which was made public yesterday and which has a specific sub-group on the treatment of children, will, it is to be hoped, help to provide some clarity in this area.
Regarding the High Court judgment, to which the noble Countess referred, it would be for colleagues at the department which has responsibility in these areas to examine the judgment carefully to see whether it is appropriate to offer advice to social services departments.

§ Lord Clement-Jones
My Lords, I welcome the Minister's reply to the Question. Clearly, the issue of consent gives rise to a number of difficulties in many cases. Will the Minister comment on whether she believes that the balance of law was correct in the case of the St. George's Healthcare Trust involving a caesarean section where a mother was entitled to refuse a caesarean even at risk to the life of her unborn child? Will she say whether or not, in the light of that case, the Department of Health plans to amend its guidance on consent?

§ Baroness Hayman
My Lords, I shall avoid giving my views on the correctness of the judgment. In the past there has been controversy over compulsory caesarean treatment. Courts have recently clarified the position in a number of cases. It has been made absolutely clear that mentally competent women in labour have the same right in common law to give or refuse consent to treatment as any other patient. In such cases the court does not have jurisdiction to declare medical intervention lawful and the question of best interest does not arise. In such cases, if a woman refuses consent to a caesarean section, a declaration of the High Court is required to decide whether or not it is lawful to carry out such treatment. The department issued guidance summarising court rulings in these areas and the principles were expanded earlier this year. We shall be conveying those expanded principles to the NHS.

Earl Baldwin of Bewdley
My Lords, does the Minister agree that ME/chronic fatigue syndrome is not a psychiatric condition as such but is more usually multi-factorial, and that psychiatric symptoms can have physical causes just as physical symptoms can have psychiatric causes?

§ Baroness Hayman
My Lords, just as I do not pretend to be a lawyer, nor shall I pretend to be a doctor. Certainly, the issues referred to by the noble Earl are of deep concern to patients and to carers of those suffering very distressing conditions. It is important that their views are well understood. That is why, in the membership of the working groups on ME in both adults and children, we have taken great care to reflect a broad range of professional and patient opinion.