college question re: child medical consent

venusdoom

Hi all, would like someone to help out with a question I'm doing about an underage child having an operation and her parents refusing to give consent for painkillers after the op. The hospital informs the HSE and a care order is granted and so the court has to decide whether the hospital should give the medication or if the parents have the right to prevent this.What would be the outcome? I was under the impression that the court sided with HSE in extreme circumstances (life or death) but I'm very unsure about this. (first law module-not doing very well). Any help appreciated. Thanks.

drkpower

venusdoom wrote: »

Hi all, would like someone to help out with a question I'm doing about an underage child having an operation and her parents refusing to give consent for painkillers after the op. The hospital informs the HSE and a care order is granted and so the court has to decide whether the hospital should give the medication or if the parents have the right to prevent this.What would be the outcome? I was under the impression that the court sided with HSE in extreme circumstances (life or death) but I'm very unsure about this. (first law module-not doing very well). Any help appreciated. Thanks.

Not a straightforward answer.

The PKU case essentially states that parents can refuse treatment on behalf of their children. When that treatment is required to save life/safeguard health, a court will always always intervene. But is a painkiller in the latter category? Doubtful.

If the HSE is involved and a Care Order has been obtained, then depending on the type of care order, the HSE may be able too give consent or they could apply to the court to be authorised to give consent.

Have a loook at this attachment and look at Child Care act 1991

http://www.hse.ie/eng/services/Publications/services/Children/medicalconsent.pdf

Victor

venusdoom wrote: »

Hi all, would like someone to help out with a question I'm doing about an underage child having an operation and her parents refusing to give consent for painkillers after the op.

What defines "underage" and "child". Can some categories under the age of 18 consent on their own behalf?

What is a "painkiller"? are we talking about a single paracetamol or a course of various painkillers over several weeks?

Is there a explanation of what the operation is? Removing a kidney or a splinter? I think it would be rather cruel to deny anyone a painkiller after a kidney has been removed.

drkpower

Over 16s can consent to medical treatments.

It certainly is harsh that a parent can wilfully refuse sometihng like painkillers for their child but the law here gives parents a massive amount of power to make detrimental medical decisions for their children, unless that detriment is of a very serious nature (of course, if we are talking about severe debilitating pain, that may be a different matter).
.

Although in this case, a care order appears to have been obtained which may change the dynamic as some kind of 'want of care' (which is usually more than simply refusing a standard painkiller) is usually a pre-reuisite to obtaining a care order.

lonestargirl

Law Reform Consultation Paper on Children and the Law - Medical Treatment.

4.02 In respect of the age of consent to medical treatment in Irish law, there is no equivalent of the mature minor rule or case law along the lines of the English or Canadian jurisprudence discussed in Chapter 3.1 In context of criminal law, however, section 23(1) of the Non-Fatal Offences Against the Person Act 1997 provides:
“The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his or her person, shall be as effective as it would be if he or she were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his or her parent or guardian”

4.05 Section 23 of the 1997 Act does not expressly prohibit children less than 16 years of age from consenting to treatment and it is therefore unclear whether the section is facilitative (automatic consent granted to children aged 16, whilst children under 16 are not prevented from giving valid consent) or preventative (preventing all children under 16 from giving valid consent).4 McMahon and Binchy5 have stated that if section 23(1) was viewed in isolation, the inclusio unius est exclusion alterius rule of construction might indicate that 16 should be the minimum age for lawful consent by a minor.6 However section 23(3) states:
“Nothing in this section shall be construed as making ineffective any consent

venusdoom

Thanks all for your help. The child was under 16 and needed painkiller for a broken leg, it stated she was in severe pain though. I was referring to the PKU case as mentioned as this isn't life or death, i.e. blood transfusion case but then again the child's health is suppose to be paramount.

Tom Young

I was going to reply. I have a funny feeling there was a judgment on this last year in the HC. Though I can't find if there was a written judgment handed down. The PKU test case is indeed relevant. JM Kelly on the Constitution might be of use if you have access to a library in the coming days.

drkpower

venusdoom wrote: »

Thanks all for your help. The child was under 16 and needed painkiller for a broken leg, it stated she was in severe pain though. I was referring to the PKU case as mentioned as this isn't life or death, i.e. blood transfusion case but then again the child's health is suppose to be paramount.

Be careful of getting to absorbed in the PKU case and the numerous cases that say a court can intervene in the case of life-saving and health-safeguarding treatments. While obviously very relevent, those cases dont usually involve situations where the HSE has already obtained a Care Order. The Child Care Act 1991 has specific provisions as regards consent for medical procedures and it usuallly far easier to over-ride parental consent in these cases.

drkpower

Tom Young wrote: »

I was going to reply. I have a funny feeling there was a judgment on this last year in the HC. Though I can't find if there was a written judgment handed down. .

There are a handful of such cases every year, usually concerning JWs. Given their urgent & injunctive nature, it is extremely rare for a written judgment to be given.

There are probably 1000s cases per year where the District Court acts to give consenting authority on behalf of children in care to the HSE but there are never written judgments in those cases (at least not often anyway).