MEDICINE AND THE LEGAL CONSENT OF THE UNDER AGE (CHILDREN)
As the state struggles to marshal resources to meet core components of the right to health ,the majority of Ugandans who live in the country side l walk long distances to get to the nearest health center for medical attention.
And when they finally get there , the quality of services they get from these inadequately manned health centers are deploreable to say the least . These health centers lack medicines and medical implements. The poor suffering rural folks are in most cases left to the mercy of God.
One important development in the law of malpractices among medical practitioners therefore, concerns the direct liability of provider units( read village clinics or health centers) and the medical workers who man them for the failures in their services.
Courts have maintained that even in situations like Uganda where health centers are poorly serviced , in terms of medicines and medical equipment, a doctor or any other health worker has a higher duty to provide a satisfactory standard of care to avoid causing injury to a patient like the case was with Nafuna a baby girl who lost her arm due to a poorly administered injection.
The standard of care which has to be adhered to by all medical practitioners extends even to diagnosis and communication with the patient(s). For instance in medical practice, before a medical worker ventures into diagnosis, he must first get to understand the medical history of a patient.
And the readers of this column will agree that this is not the practice in many of our clinics let alone our major referral hospitals . Doctors and nurses alike , are always in a hurry to diagnosis patients even before knowing the history of the cases brought or refered to them. The doctor's failure to study the a patient's medical history can be fatal. it does not only lead to wrong diagnosis but also wrong prescription and wrong treatment and in a process aggrevates a patient's condition. That ' s why courts have again held medical workers liable if they give a wrong diagnosis which is contrary to acceptable standard practice. In situations where a patient(s) would be entitled to damages.
The intervention of courts in cases of negligence in communication by the medical professionals is also on the rise. As more and more doctors and paramedical workers become involved in a patient ' s treatment, the danger of verbal instructions to such a patient is only too apparent. Errors in the general practitioner ' s letter of referral where say a doctor refers to left leg instead of right leg can so easily lead to an injury of a patient.
In the case of Nafuna another legal issue seems to have emerged. The girl's father didn't consent to decision of the specialised doctor to amputate her harm. The question then is , in life threatening situations where minors are involved, do doctors have to seek consent of parents before carrying out a medical procedure which can like in the case of Nafuna ,lead to permanent disability?
The care of children is governed by the general principles governing professional standards. The law of consent is premised on the assumption that patients will normally be able to take decisions for themselves, but this will often not be the case with children.
In cases where children cannot consent a parent may usually give consent on their behalf. A child or minor according to our constitution is a person below the age of 18 and by implication such a person can not give legal consent. That ' s why even if a 17 year old girl willingly indulges in a sexual relation with a man, the man would still be charged with defilement and he can ' t plead that the 17 year old girl gave consent.
However, for medical purposes, courts have held that the test to be applied is whether the child had ' sufficient understanding and intelligence to enable him or her to understand fully what a doctor has proposed ' .
Understanding fully, therefore requires an appreciation of the consequences of treatment , including possible side effects, and also the anticipated consequences of failure to treat. And the test of maturity established by courts is assessed in respect of each individual child and each separate medical treatment.
An example of who the test of maturity has been applied can be found in one of the decided cases, where a 15 year old boy who was dying of leukaemia expressed his opposition to receiving a blood transfusion . the judge held that he did not appreciate the extent of the fear and distress he would suffer, and consequently did not really understand what he was demanding. He was therefore not competent to give consent.
The overwhelming picture that emerges from this is - that courts are reluctant to allow children to choose to die rather than live and extremely resistant to such decisions where the motivation is religious. And doctors need to seek consent of parents when medical treatment is required as an emergency to save life.
So Nafuna ' s case is arguable since its not clear whether her condition was treated as a case of emergency to save her life by the doctors who amputated her arm. The facts show that the girl ' s father was opposed to the doctor ' s decision to amputate- however is the doctor the girl ' s arm as an emergency to save her life, then he is protected under the law.
Courts have stated that where it would be considered unreasonable in the opinion of most relevant medical experts to withhold the medical care in question, and it does not raise social or moral considerations , then it is permissible to proceed without parental consent and even in the face of parental objection like in the case of Nafuna ' s father.
These legal principles therefore , allow medical practitioners to dispense medicines and treatment when it is done in the interest of the person who cannot consent and permit the health care professionals to judge where those interests lie.
In situations where parents disagree on the issue of consent in cases which are not of an emergency nature, courts have held the medical professional could still be held liable if the proceeded to treat a child. It is also possible that it might amount to negligence if no responsible body of professional opinion would support proceeding without the consent of both parents.
And where parents and children disagree, the law is to the effect that health professionals can only treat the basis of the parental approval. This is because the right to consent to treatment is only lost by parents once the child became competent to consent. The law presumes that parents stand in the best position to attend to the best interests of their children for as long as the case is not of an emergency nature to save the life of a minor.
Moses Paul Sserwanga
Mobile-0772 43 46 77