The Prerequisites of Effective Consent to Surgery, Informed Consent for Neonatal Circumcision: An Ethical and Legal Conundrum

The Journal of Contemporary Health Law and Policy, Volume 17: Pages 61-133, Fall 2000.

III. CHILDREN

A. How does consent currently work in contexts involving children?

Parents traditionally have made most medical decisions for their minor children. Like surrogate decision-making for incompetent adults, parental permission for medical procedures on children, when appropriate and properly secured constitutes an exception to the general requirement of personal consent to medical treatment.⁹⁷ Except in an emergency, informed permission by parents is generally required to perform any medical procedure on a child; otherwise, the procedure would be tortuous and probably criminal assault.⁹⁸

In turn, the the authority of parents is circumscribed by the welfare of their children; they may not make decisions or their children that are likely to cause them permanent harm or otherwise impair their healthy development.⁹⁹ As the rights of the child as distinct persons have been increasingly recognized in modern times, children's welfare has become an overriding constraint on their medical care, limiting parental discretion.¹⁰⁰ The Queensland Law Reform Commission forcefully stated the limits on parental power to grant permission for children's treatment as follows:

A parent has no authority to consent to the medical treatment of his or her child unless it is in the best interests of the child. This is because implicit in parental consent is understood to be the determination of what is best for the welfare of the child. If a parent purports to consent to a treatment which is not in the best interests of the child, the consent is of no effect and any person acting on such consent would be guilty of assault if any physical interference occurred.¹⁰¹

Today, courts clearly have power to insert themselves into decision-making on behalf of children.¹⁰² "Under the doctrine of parens patriae, the state has a right, indeed a duty, to protect children. State officials may interfere in family matters to safeguard the child's health, educational development and emotional well being."¹⁰³ Thus the principal limit on parent's decision making is a legal and moral requirement that they act in the best interests of their children, which triggers state action when parents demonstrably act contrary to the best interests of the child, as defined by the state.

B.Parents may not sacrifice their children's physical well being for the sake of religious belief

When parents make decisions about their children's medical care that are inconsistent with their children's well-being-that is, decisions not within the range of reasonable alternatives-they commit child abuse or neglect and can be charged accordingly in civil and/or criminal proceedings. Just as is true of adult incompetents, surrogate decisions for children must rest on the temporal interests of the patient, not on supposed spiritual or other worldly interests of the patient or of the surrogate. Thus, parents are neither excused for their obligation to secure necessary medical care for their children nor from their obligation to protect their children's physical integrity from unwarranted medical procedures simply because they have religious beliefs inconsistent with the child's temporal well being.¹⁰⁴

Numerous judical decisions have addressed parental power to refuse medically indicated procedures that are contrary to parents' religious beliefs. The reigning legal principle was announced by the United States Supreme Court in Prince v. Massachusetts:¹⁰⁵ "Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves."¹⁰⁶ This principle is controlling regardless of whether the child's life is in danger: parents are always required by law to proceed in accordance with their child's best interests.¹⁰⁷ In fact, sometimes courts do not require any actual harm to justify compelling a medical procedure that parents have refused on religious grounds.¹⁰⁸ The prevailing rule is that the state properly overrides parental objections to care when necessary to avoid physical harm to the child.¹⁰⁹ For example, in Jehovah's Witnesses v. King County Hospital,¹¹⁰ the United States Supreme Court, citing Prince v. Massachusetts, upheld per curiam a Washington federal district court decision that the state of Washington properly ordered necessary blood transfusions for a child whose parents objected to the transfusion on religious grounds.¹¹¹

Moreover in recent years the very notion of parental entitlement has been increasingly questioned. Recognition of and respect for children as persons distinct from their parents has grown, leading legal scholars and judges to insist that parenthood is a fiduciary role rather than a property-owning one, so that parental authority should be viewed as a limited privilege rather than a right.¹¹² In addition, there has been growing support for the view that children themselves possess rights in connection with their upbringing,¹¹³ and that those rights constrain the freedom of parents as well as the power of the state.¹¹⁴

In light of the established limits on parental authority and freedom and thecurrent trend toward greater protection of children against inappropriate parental decision-making, medical personnel cannot simply comply with parental preferences for, or against a given procedure even when those preferences are grounded in religious belief. As with incompetent adults, the physician himself owes duties to the child patient himself and those duties in some circumstances require resisting or even refusing surrogates choices.¹¹⁵ Those duties may be conceptualized as required medical professionals to ensure that parents are making the same decision that the child would make if able to do so, or as requiring medical professionals to ensure that parental choices are consistent with what objectively is in the child's best interests. In other words, the professional obligation owed to a child patient is the same as that owed an incompetent adult patient.

C.Parents may authorize a non-medically indicated procedure only if it is clearly in the child's best interests

Where parents request a procedure that is not medically indicated, courts have taken an even more child-protective stance and required strong evidence that the procedure is in the patient-child's interests. Sometimes courts allow the child's best interests to be determined using the more subjective, substituted judgment standard.¹¹⁶ On other occasions courts insist on the more objective, "best interests" approach, presumably because the substituted judgment approach might allow parent inappropriately to inject their own preferences into the decision-making process.¹¹⁷

While theoretically clear, the distinction between the two standards has a definite tendency to sometimes blur in practice, as courts have demonstrated by involking the "best interests" language while applying an analytical approach more consonant with the substituted judgment approach.¹¹⁸ As with incompetent adults, courts do not permit procedures to be performed on children when the procedures will only benefit other people and not the patient.¹¹⁹ This is true even in cases where the potential benefit to a close relative substantially exceeds the risk to the child-patient, and where one might therefore reasonably assume many competent persons would choose to undergo the procedure. For example, in Little v. Little¹²⁰ the guardian ad litem for a 14-year-old mentally incompetent, but otherwise healthy girl applied on the encouragement of the mother to grant permission for the removal of a kidney from the girl.¹²¹. The purpose of the procedure was to transplant the kidney into the girl's brother who was suffering from end-stage renal disease. In refusing the order the Texas Court of Appeals stated that "[t]his power of parents…to consent to surgical intrusions upon the person of the minor…is limited to the power to consent to medical `treatment.'"¹²² In other words, the permission is limited to care for an injury, disease or malformation. Similarly, in In re Richardson,¹²³ a Louisiana Court of Appeals ruled that Kidney transplant surgery from a mentally retarded child to his sister could not take place because it would contravene the "minor's right to be free in his person from bodily intrusion to the extent of the loss of an organ unless such loss be in the best interest of the minor."¹²⁴ The Richardson court rejected the substituted judgment test in favor of the best interest test and concluded that the procedure was not in the best interest of the prospective donor's interest, because any direct benefit was highly speculative.¹²⁵ In Curran v. Bosze,¹²⁶ the Illinois Supreme Court likewise rejected the substituted judgment approach in a case involving a proposal to subject three-and-one-half-year-old twins to blood testing to determine bone marrow compatibility with their half brother, who was dying of leukemia, reasoning that it was impermissibly speculative for a court of law or anyone else to attempt to ascertain the future intentions of such young children.¹²⁷ Most recently, and in a dramatic endorsement of the best interests principle, an English Court of Appeals refused to allow parents of Siamese twin girls to undertake the separation of the twins, where one severely brain-damaged twin was virtually surely to die as a result of the procedure, but where in the absence of the procedure, both twins would almost certainly lose their lives in a few years.¹²⁸ The court held that parental consent may only be given for treatment which is in the best interests of the child, and that in this case the treatment was not in the weaker child's best interest.¹²⁹

Parents, like substitute decision-makers for incompetent adult patients, should be viewed as agents for their children, required to make decisions for their children in a manner consistent with their children's best interests.¹³⁰ Medical professionals owe a duty to their minor patient to assist parents in making decisions that conform to that standard. A recent statement of the American Academy of Pediatrics (AAP) Committee on Bioethics supports the conclusion that physicians are constrained in accepting parental direction regarding medical care for children by the requirement that the care be medically beneficial and that any surgery on children must be necessary to prevent serious harm. According to the AAP Committee, parent permission for medical intervention can substitute for the child's consent only in situations of clear and immediate medical necessity, such as disease, trauma, or deformity.¹³¹ The AAP Committee directs that for non-essential treatments, particularly those that can be deferred without loss of efficacy, the physician and family must wait until the child's consent can be obtained.¹³² The medical profession in the United Kingdom adheres to similar rules. The United Kingdom Department of Health's guidelines state that

[t]hose acting for the child can only legally give their consent provided that the intervention is for the benefit of the child. If they are responsible for allowing the child to be subjected to any risk (other than one so insignificant as to be neglible) that is not outweighed by the prospect of medical benefit to the child, they act illegally.¹³³

To assist parents in making decisions that comport with their child's best interests, medical professionals must satisfy the same requirements of informed consent/parental permission that apply to decision-making by competent adults and by surrogates for incompetent adults. First, the physician must disclose to parents all relevant information that a competent patient would want to know if the procedure were to be performed on him. Second, the physician must ensure that parents have the capacity to understand and think rationally about the information given to them. Third, the physician must ensure that the parents' decision is voluntary and not manipulated in any way by the manner in which it is presented or the time at which parents' permission is sought. With respect to interventions that are not medically indicated, it is improper at any time for a physician to suggest the procedure to parents who have not inquired about it; such a suggestion would amount to solicitation and would likely be interpreted by parents as a medical recommendation. Just as it would be unethical for a physician to recommend a non-medically indicated intervention to the surrogate of an incompetent adult, it is also unethical to recommend such an intervention to the surrogate of a child.

References

97. See Secretary, Dept of Health & Comm. Serv. v. J.W.B. & S.M.B. [Marion's Case] (1992) 175 C.L.R. 218, 235-237 (Austl.).
98. See Keeton, supra note 8, at § 18; Bonner v. Moran, 126 F.2d 121, 122 (D.C. Cir. 1041; see also Linda S. Ewald, Medical Decision-Making for Children: An Analysis of Competing Interests, 25 ST. LOUIS U.L.J. 689, 689 (1982)
    
99. See Dwyer, supra note 3, at 1355; Bonner & Kinane,, supra note 3, at S1-S2.
    
100. See Marion's Case, 175 C.L.R. at 240; Prince v. Massachusetts, 321 U.S. 158, 167 (1944).
     
101. See Queensland Law Reform Commission, CONSENT TO MEDICAL TREATMENT OF YOUNG PEOPLE: DISCUSSION PAPER 34-35 (1995) (internal citations omitted).
     
102. See Dwyer, supra note 3, at 1355; see also J.L. Rosato, Putting Square Pegs in a Round Hole: Procedural Due Process and the Effect of Faith Healing Exemptions on the Prosecution of Faith Healing Parent, 29 U.S. FED. L. REV. 43 (1994).
     
103. See Prince, 321 U.S. at 167.
     
104. See id.; See also In re Willimann, 493 N.E.2d 1380, 1389 (Ohio 1986) (ruling that parent's constitutional rights must yield to state authority because "the faith of the parents' as firm and clear as it is, does not permit them, under the law of this state and the nation, to expose [their child] to progressive ill health and death); In re Hamilton, 657 S.W.2d 425,429 (Tenn. 1983) (finding that "humane considerations and life-saving attempts" in favor of a child outweighed fathers interest in unlimited practice of his religion); People ex re. D.L.E., 645 P.2d 271 (Colo. 1982); (holding that when parents refuse medical treatment for their child on religious grounds, the state can meet its heavy burden of proof necessary to override parent's objections by demonstrating that the child is suffering from a life-threatening medical condition for which there is medical treatment available); In re Ivey, 319 So. 2d 53, 57-59 (Fla. 1975) (concluding that the court is not precluded in case where child's life is threatened from ordering medical services or treatment even where contrary to parents' wishes); Jehovah's Witnesses v. King County Hosp., 278 F. Supp. 488, 505 (W.D. Wash. 1967) (finding that state statutes empowering superior court judges to declare children dependent for purpose of authorizing blood transfusions of children against parents' religious objections not invalid under United States Constitution), aff'd per curiam, 390 U.S. 598 (1968); Muhlenberg Hosp. v. Patterson, 320 A.2d 518 (N.J. 1974) (ordering necessary blood transfusions for child when parents' refusal, based on religious beliefs, created danger of grave and irreparable brain damage but not death); In re Clark, 185 N.E.2d 128, 132 (Ohio, 1962) (concluding that "when a child's right to live and his parents' religious belief collide, the former is paramount, and the religious doctrine must give way"); Commonwealth v. Barnhart, 497 A.2d 616 (Pa. Super. 1985) (deciding that for purposes of involuntary homicide statute, parents had no choice but to get medical help, despite their religious beliefs, where they faced condition which threatened and eventually ended child's life).
     
105. 321 U.S 158 (1944).
     
106. Id. at 170.
     
107. See, e.g. O.G. v. Baum, 790, S.W.2d 839 (Tex. Ct. App. 1990); In re Cabrera, 552 A.2d 1114 (Pa. Superior Ct. 1989); In re Gregory S., 389 N.Y.S.2d 620 (N.Y. Fam. Ct. 1976); In re Karwath, 199 N.W.2d 147 (Iowa 1972); In re Sampson, 317 N.Y.S.2d 641 (N.Y. Fam. Ct. 1970), aff'd 323 N.Y.S.2d 253 (N.Y. App. Div. 1971), aff'd, 278 N.E. 2d 918 (N.Y. 1972).
     
108. See In re Eric B., 235 Cal. Rptr. 22, 24-27 (Cal. Ct. App. 1987) ruling that despite absence of actual harm, threat of harm if child was not periodically monitored for cancer was sufficient to permit juvenile court's jurisdiction to order monitoring).
     
109. See generally In re McCauley, 565, N.E.2d 411 (Mass. 1991) (ruling that best interests of child, coupled with state's strong interest in securing a life-saving blood transfusion, outweighed parents' constitutional objections); State v. Perricone, 181 A.2d 751 (N.J. 1962), cert. denied, 371 U.S. 890 (1962) (holding court-ordered blood transfusion did not violate parents' constitutional rights of religion or parental autonomy when the child's life was in danger); Wallace v. Labrenze, 104 N.E.2d 769 (Ill. 1952), cert. denied, 344 U.S. 824 (1952) finding that when parents refuse medical treatment for their child, the lacke of which will almost certainly cause death or, at best, lifelong mental impairment, the child is neglected and the court may order the necessary treatment without violating the parents' constitutional rights); Morrison v. State, 252 S.W.2d 97 (Mo. 1952) (holding that state has power to preserve a child's life and health when medical treatment is as necessary for the child's survival as is food.); Commonwealth v. Cottam, 616 A.2d 988, 1000 (Pa. Super. Ct. 1992) (ruling that in criminal case against defendant parents over death of children due to neglect, validity and sincerity of religious beliefs of defendants and children are not relevant to issues presented at trial for failing in legal duty to provide for children, resulting in starvation death of son and severe malnution of daughter); see generally Dwyer, supra note 3, at 1355-56.
     
110. 278 F. Supp. 488 (W.D. Wash. 1967), aff'd per curiam, 390 U.S. 598 (1968).
     
111. Id. at 504-05.
     
112. See W. Riddick, Parents and Life Prospects, in HAVING CHILDREN: PHILOSOPHICAL AND LEGAL REFLECTIONS ON PARENTHOOD 25 (O. O'Neill & W. Riddick eds. 1979); See generally JAMES G. DWYER, RELIGIOUS SCHOOLS V. CHILDREN'S RIGHTS (1998).
     
113. JOEL FEINBERG, 1 THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO OTHERS 37 (1984); See generally JAMES G. DWYER, RELIGIOUS SCHOOLS V. CHILDREN'S RIGHTS (1998).
     
114. See James G. Dwyer, supra note 84, at 1429-31; see also Josette M. LeDoux, Interspousal Liability and the Wrongful Transmission of HIV-AIDS: An Argument for Broadening Legal Avenues for the Injured Spouse and Further Expanding Children's Rights to Sue Their Parents, 34 NEW ENG. L. REV. 392 (2000) ("the trend in recent law is to recognize a growing need to grant children new rights in order that they may seek legal redress from transgressing parents"); see also Walter Wadlington, Medical Decision Making For and By Children: Tensions Between Parent, State, and Child, 1994 U. ILL. L. REV. 311, 312 (1994) (noting that "the new cycle of litigation involving children reflects an additional pattern of greater state involvement in protecting children, an intervention which can pose a significant intrusion into family life"). For a sampling of law review articles in recent years arguing for greater rights for children as against their parents in particular contexts, see Susan H. Bitensky, Spare the Rod, Embrace Our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children, 36.31 U. MICH. J. L. REFORM 353 (1998) (arguing that children have a right not to be corporally punished by their parents); Marsha Garrison, An Evaluation of Two Models of Parental Obligation, 86 Cal. L. Rev 41 (1998) (arguing for a right of children to a greater share of family resources following divorce than they currently receive); Elizabeth A. Lingle, Treating Children By Faith: Colliding Constitutional Issues, 17 J. LEGAL MED. 301, 330 (1996) (arguing against spiritual treatment exemptions to child medical neglect laws); Ann MacLean Massie, The Religion Clauses and Parental Health Care Decision-Making for Children: Suggestions for a New Approach, 21 HASTINGS CONST. L.Q. 725, 739 (1994) (arguing against spiritual treatment exemptions to child medical neglect laws); Therese Powers, Race for Perfection: Children's Rights and Enhancement Drugs, 13 J. L. & HEALTH 141, 165-167 (1998-99) (arguing for a right for children to receive Ritalin and Human Growth Hormone despite the objection of their parents); Melinda A. Roberts, Parent and Child in Conflict: Between Liberty and Responsibility, 10 NOTRE DAME J. L. ETHICS & PUB. POL'Y 485 (1996) (arguing for a greater liberty rights for children as against the interests and wishes of their parents in a variety of situations). For evidence of the medical professions commitment to protecting the welfare of children even as against the wishes of parents in other contexts; see American Academy of Pediatrics, Religious Objections to Medical Care, 99 PEDIATRICS 279, 279 (1997) (stating AAP opposition to spiritual treatment exemptions to child medical neglect laws); Andrew Skolnick, Religious Exemptions to Child Neglect Laws Still Being Passed Despite Convictions of Parents, 264 JAMA 1226, 1233 (1990) (stating opposition of AMA to spiritual treatment exemptions to child medical neglect laws).
     
115. See Christine Harrison et al., Bioethics for Clinicians: 9. Involving Children in Medical Decisions, 156 CAN. MED. ASS'N J. 825, 827-828 (1997).
     
116. See Strunk v. Strunk, 445 S.W.2d 145, 148 (Ky. 1969); Little v. Little, 576 S.W.2d at 497-98; Hart v. Brown, 289 A.2d at 387-88; Foody v. Manchester Mem. Hosp., 482 A.2d 713, 720-21 (Conn. Super. 1984); In re Estate of Longeway, 549 N.E.2d 292, 298-300 (Ill. 1989).
     
117. See Wenzel v. Montgomery Gen. Hosp., Inc. 447 A.2d 1244, 1253-54 (Md. 1982), cert. denied. 459 U.S. 1147 (1983) (applying best interests doctrine to bar sterilization of an incompetent thirteen year old girl); Curran v. Bosze, 566 N.E.2d 1319, 1325-1331 (Ill. 1990); see generally Re Jane (1988) 85 A.L.R. 409 (holding parental consent by itself insufficient to authorize hysterectomy on severely mentally disabled but physically healthy seventeen-year-old woman despite apparently good-desire to protect her from problems in coping with menstruation and possible pregnancy); In re Grady, 426 A.2d 467, 483-86 (N.J. 1981); In re Richardson, 284 So.2d 185, 187 (La. Ct. App. 1973).
     
118. See, e.g. Matter of Doe, 104 A.D.2d 200, 200-01 (N.Y. App Div. 1984) (applying substituted judgment analysis to uphold trial court's finding "to reasonable certainty" that bone marrow transplant was in incompetent donor's "best interests" due to benefits of future company and advocacy provided by donee brother's companionship, which were found to outweigh any physical and psychological risk); In re Estate of Greenspan, 558 N.E.2d 1194, 1202 (Ill. 1990) (involving petition for leave to discontinue artificial feeding and hydration of ward in chronically vegetative state, a determination by anyone else of best interests of ward cannot govern ward's imputed choice; if this were permissible, "the substituted-judgment procedure would be vitiated by a best-interests guardianship standard, elevating other parties' assessments of the meaning and value of life over the affected individual's own common law right to refuse medical treatment"); see also Lebit, supra note 70, at 108 ("Over time courts have come to confuse the best interests standard with the substituted judgment doctrine in certain situations and apply the substituted judgment doctrine to cases in which it is not appropriate").
     
119. See Bonner v. Moran, 126 F.2d 121, 123 (D.C. Cir. 1941) (concluding that skin graft from 15-year-old boy performed without informed consent from him or his mother was entirely for the benefit of the graft recipient and involved sacrifice by the boy, violating the basic consideration of whether the proposed operation is for the benefit of the child); see also in re A.C.; 573 A.2d at 1247 (finding that to protect right to bodily integrity against intrusion by others, courts must determine the patient's wishes by any means available and must abide by these wishes unless truly extraordinary or compelling reasons exist to override them); See generally Krais, supra note 70, at 333-361 (rejecting substituted judgment standard and recommending best interests test); see also Lebit, supra note 70 at 111-12; L.K. Gregory, Propriety of Surgically Invading Incompetent or Minor for Benefit of Third Party, 4 A.L.R. 5th 1000 (1992); Walter M. Weber, Substituted Judgment Doctrine: A Critical Analysis, 1 ISSUES IN L. & MED. 131 (1985).
     
120. 576 S.W. 2d 493 (Tex. Civ. App. 1979).
     
121. See id. at 493-95.
     
122. See id.
     
123. 284 So.2d 185.
     
124. See id. at 185-87.
     
125. See id. at 187; but cf. Matter of Doe, 481 N.Y.S.2d 932 (N.Y. App. Div. 1984).
     
126. 566 N.E. 2d 1319 (Ill. 1990).
     
127. See id. at 1325-31.
     
128. A (Children), Supreme Court of Judicature, Court of Appeal (Civil Division), at § sect; II.7 and II.8, (last visited Nov. 12, 2000).
     
129. Id. at §§ III.3 and III.5.
     
130. See Dwyer, supra note 84, at 1406-23.
     
131. Committee on Bioethics, Informed Consent, Parental Permission, and Assent in Pediatric Practice, 95 PEDIATRICS 314, 314-16 (1995).
     
132. Id.
     
133. DEPARTMENT OF HEALTH, LOCAL RESEARCH ETHICS COMMITTEES, Department of Health, Local Reseach Ethics Committees, § 4.4, London (1991).

• J. Steven Svoboda, Robert S. Van Howe, James C. Dwyer, Informed Consent for Neonatal Circumcision: An Ethical and Legal Conundrum. 17 J Contemp Health Law & Policy 61 (2000).

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