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Parents cannot refuse treatment for minor children on religious grounds: Senior medic

03 Oct 2021

  • Courts permit only under very extraordinary situations 
BY Ruwan Laknath Jayakody  Refusal by parents to give consent for the provision of life-saving or other essential treatment to a minor will not be upheld by courts, per the Court of Appeal case of Re T (a minor) (Wardship: Medical Treatment) [1997], except under extremely extraordinary circumstances. This point was noted by retired Chief Consultant Judicial Medical Officer of Colombo, L.B.L. de Alwis in a review article on the “Refusal by parents to give consent for medical treatment for their minor children on religious grounds” which was published in the Medico-Legal Journal of Sri Lanka 1 (1) in August 2014. Background A minor is anyone below the age of 18 years and includes newborn infants, very young children such as preschoolers and young school-going children who cannot comprehend the nature of their illness or give valid consent for the treatment available, owing to their mental immaturity and the lack of mental competence. Therefore, they are dependent on their parents for everything they need, including amongst other things, medical treatment when they are ill. This abject dependency, coupled with them being likely to not go against their parents’ wishes, means that parents have the opportunity to, acting on religious grounds, refuse to give consent for beneficial and even life-saving medical treatment to their minor children. De Alwis, however, observed that there have been instances where such refusal by parents to give consent for their minor children to receive medical treatment has resulted in both serious permanent physical disabilities being sustained by the minor children and even death. Courts have however, pointed out that parental rights to control a child exist solely for the child’s benefit and not for the parents’ benefit. This situation, de Alwis noted, violates the common law as the right to treatment including proper medical care for all persons including minor children, instead of being foisted on and practised with what he describes as fanatical, even lunatic, religious beliefs, is a basic human right. In this regard, de Alwis explained the duties on the part of doctors, when parents refuse to grant consent on religious grounds for medical treatment of their minor children. Due process In the event of a medical emergency concerning a minor, in order to administer vital, life-saving, or essential treatment, the doctor need not obtain consent from the parents or a parent. In fact, the doctor can completely ignore any express wishes of the parents if they object to giving life-saving or essential treatment. This is because to preserve life is the primary ethical obligation of a doctor who has to act on the principle of necessity. As J.K. Mason, R.A. McCall Smith, and G.T. Laurie noted in “Law and medical ethics”, such decisions made in the best interest of the child are, except under the most exceptional circumstances, always upheld by courts. Further, if parents refuse to give medical treatment including life-saving measures such as blood transfusions to a minor child on religious grounds, the treating doctor or the hospital authorities where the said minor child is admitted, have the option of requesting the relevant court to take the said child into the custody of the care of the court, a process which is referred to as parens patriae jurisdiction or wardship, and is based on the duty of the State to protect its subjects, particularly children. The relevant court can then give the doctor or the hospital the authority to carry out any treatment based on sound clinical judgment, in the best interest of the minor child. The Canadian Supreme Court, in B vs. Children’s Aid Society of Metropolitan Toronto held that the ability of the State to exercise parens patriae jurisdiction is undermined if parents are, for religious reasons, allowed to refuse blood transfusions for their children, noting further that a family refusing treatment for their minor children based on religious grounds, is a “dangerous place”. Such directions issued and treatment authorised by a court per the demands of medical considerations, cannot be challenged by the parents who may seek to sue the doctor for carrying out such court orders. Moreover, as the Family Division of the High Court of Justice in the United Kingdom ruled in Re S (a minor) (Medical Treatment) [1993], even when it was not an emergency situation, blood transfusions were authorised on a four-year-old whose parents had objected on religious grounds. In Re T (a minor) (Wardship: Medical Treatment) [1997], the court noted that the test of paramount consideration must remain the welfare of the child even whilst noting the risks attached to the procedure the doctors wished to adopt as the chances of success were significantly higher than a treatment regime which did not involve the use of blood transfusions or blood products. According to de Alwis, such refusals by parents, made in the guise of faith healing, must be extended to include the practices of bali (a ritual that makes a sound performance [with traditional dance, music, and cultural substances] of a variety of psychological and physical treatments for many psychiatric and cultural diseases, performed when the influence of planetary system deities becomes malevolent per the individual’s astrology, and is a ceremony wherein the presiding gods and deities of the planets are invoked, communicated with, and placated through oblation in order to ward off their evil influences) and thovil (an exorcism involving ritual chanting, dance, and drumming performed when villagers fear that devils or powerful non-human beings are becoming rough and dangerous, making people sick and causing other dreadful troubles) or similar rituals performed by, as de Alwis described, charlatans, who knowingly mislead parents by falsely stating that they possess a complete cure for the illness of the minor child, often charging several thousands of Rupees. Another situation doctors face is when, on occasion, parents refuse to give consent, on religious grounds, to even ordinary medical treatment. In such an instance, once again, the doctor can disregard parental objections, and proceed to treat the minor, if the said minor is considered to be a mature minor who is capable of understanding the nature of the illness, the treatment available, and the outcome of the illness if untreated. Legally, such minors are termed “Gillick Competent” as per the House of Lords case of Gillick vs. West Norfolk and Wisbech Area Health Authority (1986). The House of Lords noted in the latter case that parental rights over their minor children are derived solely from a parental duty, and therefore, exists only so long as they are needed for the benefit of the child. These mature minors are generally school-going children and between the ages of 12 and 18 years. Criminal culpability It is clear that the failure on the part of parents to give consent for life-saving or other essential forms of treatment for their minor children, amounts to a crime as it violates Sections 293, 298, 308A(1), and 308A(2) of the Penal Code, which deal with culpable homicide not amounting to murder (a Rastafarian couple that refused to allow their diabetic child to be given insulin, as mentioned by D. Brahams in “Religious objection  versus parental duty”, were convicted of manslaughter), causing death by negligence, and cruelty to children (R vs. Senior [1899]), respectively. The verdict of the Supreme Court of Illinois in People of the State of Illinois Ex Rel. Wallace vs. Labrenz aptly pointed out that while “parents may be free to become martyrs themselves...it does not follow that they are free in identical situations, to make martyrs of their children”.


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