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Critically analyse Re W [1992] 4 All E.R 627
29
1. No question of a minor consenting
to or refusing medical treatment
arises unless and until a medical or
dental practitioner advises such
treatment and is willing to undertake
it.
5. A minor of any age who is 'Gillick competent' in the context of particular treatment has a right to consent to that treatment, which again cannot be overridden by those with parental responsibility, but can be overridden by the court. Unlike the statutory right this common law right extends to the donation of blood or organs.
6. No minor of whatever age has power by refusing consent to treatment to override a consent to treatment by someone who has parental responsibility for the minor and a fortiori a consent by the court. Nevertheless such a refusal is a very important consideration in making clinical judgments and for parents and the court in deciding whether themselves to give consent. Its importance increases with the age and maturity of the minor.
4. Section 8 of the Family Law Reform
Act 1969 gives minors who have attained the age of 16 a right to consent to surgical, medical or dental treatment. Such a consent cannot be overidden by those with parental responsibility for the minor. It can, however, be overridden by the court. This statutory right does not extend to consent to the donation of blood or organs.
3. This appeal has been concerned
with the treatment of anorexia nervosa. It is a peculiarity of this disease that the disease itself creates a wish not to be cured or only to be cured if and when the patient decides to cure himself or herself, which may well be too late. Treatment has to be directed at this state of mind as much as to restoring body weight.
7. The effect of consent to treatment by the minor or someone else with authority to give it is limited to protecting the medical or dental practitioner from claims for damages for trespass to the person.
2. Regardless of whether the minor or anyone else with authority to do so consents to the treatment, that practitioner will be liable to the minor in negligence if he fails to advise with reasonable skill and care and to have due regard to the best interests of his patient.
Case Facts!
A 16 year old girl was refusing consent to proposed treatment.
The Local authority wanted to treat W against her wishes. She had anorexia nervosa.
Held: Law did not confer on a 16 year old an absolute right to determine medical treatment. Minor's wishes, which would be
considered, could not overrule consent given by the court. Her best interests required immediate treatment.
W was treated against her wishes.
Donaldson's Seven Points Addressed
Critically analyse Re W [1992] 4 All E.R 627
Thomas Plow, Luke Norton, Marcello Sanzari, Ollie Farrant, Jack Brayshaw, Lois Plummer, Jess Langford, Kyle Sellick, Iona Gallagher