Tutorial Tort (Tutorial 1 Question 2)

Parties Swee Lan v Dr Johan Issue Whether consent of a minor(Swee Lan: 15 years old) is sufficient to withheld from medical treatment of a doctor?

Applicable law: Law of tort trespass to person (Battery)

Argument(Relevant Statutes and case law)

Penal Code

Section 6: Illustration
The sections in this Code which contain definitions of offences, do not express that a child under ten years of age cannot commit such offences, but the definitions are to be understood subject to the general exception which provides that "nothing shall be an offence which is done by a child under ten years of age". Between ten to twelve years old, there is rebuttable presumption that a child can be liable for an offence which he commit. After twelve years old, a child is liable for any offence he made. A male is liable for rape offence upon reaching 14 years old. This means that the penal code itself presume that a child after reaching the age of thirteen years old, he had attain sufficient maturity and understanding of what he is doing. This mean a child upon reaching thirteen years old had attain sufficient maturity and understand of what he is doing if according to the penal code. In our case, since Swee Lan is 15 years old , it is to be say that she had attain an age of understanding and maturity through the Penal Code itself. Thus she is able to give consent as she had the capacity to give.

Case law Gillick v West Norfolk and Wisbech Area Health Authority 1982

Facts

The Department of Health and Social Security issued to area health authorities a memorandum of guidance on family planning services ("the guidance") which contained a section dealing with contraceptive advice and treatment for young people. It stated that clinic sessions should be available for people of all ages, that in order not to undermine parental responsibility and family stability the department hoped that attempts would always be made to persuade children under the age of 16 who attended clinics to involve their parent or guardian at the earliest stage of consultation, and that it would be most unusual to providecontraceptive advice to such children without parental consent. It went on to state that to abandon the principle of confidentiality between doctor and patient in respect of children under 16 years might cause some not to seek professional advice at all, thus exposing them to risks such as pregnancy and sexually-transmitted diseases, and that in exceptional cases it was for a doctor exercising his clinical judgment to decide whether to prescribe contraception. The plaintiff, who was the mother of five girls under the age of 16 years, wrote to her local area health authority seeking an assurance from them that no contraceptive advice or treatment would be given to any of her daughters while under 16 years of age without her knowledge and consent. The area health authority refused to give such an assurance and stated that in accordance with the guidance the final decision must be for the doctor's clinical judgment. The plaintiff began an action by writ for, inter alia, a declaration that the guidance gave advice which was unlawful and wrong and which adversely affected parental rights and duties. Woolf J. held that in order to obtain the relief sought the plaintiff had to establish that adherence to the advice contained in the guidance would inevitably result in the commission of unlawful conduct, that the probabilities were that a doctor would not render himself liable to criminal proceedings by following the advice in the guidance, and that a girl under 16 was capable of consenting to medical treatment so that a lack of parental consent would not render the doctor's conduct unlawful. He concluded that the plaintiff was not entitled to the relief sought. The Court of Appeal allowed the plaintiff's appeal on the grounds, inter alia, that a girl under 16 was incapable either of consenting to medical treatment or of validly prohibiting a doctor from seeking the consent of her parents, and that the advice contained in the guidance was contrary to law in that any doctor who treated a girl under 16 without the consent of her parent or guardian would be infringing the inalienable and legally enforceable rights of parents relating to the custody and upbringing of their children which save in an emergency could not be overridden otherwise than by resort to a court exercising its jurisdiction to act in the best interests of the child.
Held The parental right to control a minor child deriving from parental duty was a dwindling right which existed only in so far as it was required for the child's benefit and protection; that the extent and duration of that right could not be ascertained by reference to a fixed age, but

depended on the degree of intelligence and understanding of that particular child and a judgment of what was best for the welfare of the child; that the parents' right to determine whether a child under 16. In our case, as Swee Lan is deem to be attain sufficient maturity and understanding as she was 15th years old which if she commit an offence is liable under Penal Code, and she know what is antibiotic as she opposed drugs which have been developed using animal testing. If she dont know what is antibiotic, she wouldnt opposed to antibiotic developed through animal testing. Re R 1991
.

Lord Donaldson said that:

"Good parenting involved giving minors as much rope as they could handle without an unacceptable risk that they would hang themselves. It was self-evident that that involved giving them the maximum degree of decision-making which was prudent. Prudence did not involve the avoidance of all risk but of risks which if they did eventuate might have irreparable consequences or were disproportionate to the benefits accruing from taking." The risk of not taking antibiotic is not an unacceptable risk as the situation which Swee Lan had is just merely a splinter of glass cut her. Cutting of a glass toward her is not an emergency and thus Swee Lan is capable of giving her consent as she is still conscious with what she is doing. Her refusal of treatment should be abide by Dr Johan. If and only if due to splinter of glass cut Swee Lan, Swee Lan had become severely ill which can cause death, and Swee Lan refuse to be inject, by than, Dr Johan can pledge it is necessary for him to inject her with animal tested antibiotic despite her refusal. However, this situation does not arise. It is just a cut which doesnt yet will lead to death. Re R (A Minor: Wardship Consent to Treatment) [1991] 3 WLR 592 where a 15 year old girl suffering from a psychiatric illness characterised by periods of violent and suicidal behaviour followed by lucid thought refused to take medication, and wardship proceedings were instigated. The court held that, even if she were Gillick competent and, because of the extremity of her behaviour, consent could be given by somebody else with parental responsibility or the court. This is to be differentiate with Swee Lan situation. First Swee Lan does not have psychiatric illness, secondly, she does not have extreme behaviour. Merely objection of animal testing antibiotic is not extreme behaviour as this may be her religious reason or other reasonable reason such as she may dislike the cruelty of animal testing. Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1992] 3 WLR 758 Where a 16 year old girl was suffering from anorexia and refusing treatment. The court held that s8 of the Family Law Reform Act 1969 did not give the child an absolute right to refuse treatment, it simply protected the doctors from prosecution by allowing her to consent as if she were an adult. The court also noted that as a child matured, so did their ability to express their wishes and feelings. In this case, the court felt that the girl's wishes and feelings were not served by her interest, especially because one symptom of anorexia was, at least, in part, a desire not to get better.

This is another case to be differentiate with Swee Lan situation. Swee Lan does not have extreme disease such as anorexia which is a form of extreme illness. Her condition is a splinter of glass cut her. A person that is severely ill mentally and physically are not capable in giving consent but Swee Lan is nor severely ill mentally and physically thus her thinking is still conscious and clear and she had sufficient understanding and maturity when she object the use of antibiotic developed using animal testing. Thus she is a complete Gillick competent in refusing consent to treatment. Dr Johan thereby cannot inject her with the antibiotic. Conclusion As Swee Lan does not have any extreme form of behaviour and not severely ill mentally and physically, and she reach an age which is liable for offences under the Penal Code, this is to be said that she had reach sufficient understanding and maturity to refuse treatment. Besides she know what is antibiotic developed through animal testing. Due to her understanding, she object it. As the situation of Swee Lan is not urgent enough which can lead to death, Dr Johan cannot pledge it was necessary for him to inject antibiotic. Though parental consent is effective in case of minor, this is to be differentiate with Swee Lan situation as Swee Lan is Gillick competent. Hence, Dr Johan cannot use the defence of parental consent. Dr Johan is liable for battery toward Swee Lan as there is no consent from her.