2021-09-15 15:09:23
Consent, Gillick ccmpetence and the role of case examiners were considered in two recent cases.
AB v CD [2021] EWHC 741 (Fam) concerned X, a 15-year-old who wished to continue her hormone treatment to suppress puberty. Following the earlier decision in Bell v Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (in which an appeal to the Court of Appeal is currently pending), NHS England issued guidance that a child under 16 could only consent to treatment after an assessment and an application to the court. In X’s case, this would have caused an unacceptable delay in treatment. The court held that X’s parents retained the legal ability to consent to X’s treatment. In view of the decision in Bell, this judgment seems controversial because it appears to enable the NHS England guidance to be circumvented.
We will report further on Bell when the Court of Appeal judgment is available.
In B v General Medical Council [2021] CSOH 85, a complaint had been made to the GMC by a child’s parents about a doctor who wrongly concluded that they were responsible for their child’s illness. The doctor made a safeguarding, referral resulting in the child being taken into care for a period. The GMC’s case examiners decided not to refer the case for fitness to practise proceedings and the child’s parents challenged this decision.
Based on earlier authorities, the parties agreed that case examiners have a limited, filtering, role. They may examine whether the complaint has any real prospect of being established, and in so doing may themselves conduct an investigation into its prospects. They may then refuse to refer the allegation on for a full hearing if satisfied that it has no real prospect of being established, but they must do so with the utmost caution (or, at least, with caution).
The case examiners noted that an expert had not identified any aspects of Dr C’s care “that fell below, or seriously below” the standard of the reasonably competent consultant paediatrician and lead consultant paediatrician for child protection. They also noted that the expert had confirmed that the doctor had followed the guidance issued by the Royal College of Paediatrics and Child Health.
It was also alleged that there had been a failure to obtain the parents consent to some of the child’s treatment in hospital, but, the judge, Lord Harrower, held that the case examiners had not made any error of law when they concluded that the parents, by bringing their child to the Hospital, had given implied consent to her ongoing treatment. To succeed in this allegation, the parents would have had to point to the implied consent being withdrawn at some point.
The case may be of further significance in view of the proposal by the Department of Health and Social Care in England to allocate greater decision-making powers to case examiners – a proposal PLEA commented on in responding to the recent consultation on healthcare regulation, pointing out the difficulty in overturning decisions of case examiners. Our response can be found on the Notice Board on the home page of our website www.plea.org.uk.