Q&A on Contraception Failure Negligence

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  1. With regards to irreversible contraception in oku patients, we have cases whereby relatives came to us requesting btl to be done on their oku child or relatives. What is the legal opinion on that?
  2. In terms of medicolegal purposes, is it allowed for caregivers or parents to decide regarding contraception?

Questions 1 and 2 shall be answered together since they are intertwined. 

As a general rule, no procedure, examination, surgery or treatment may be undertaken on a patient without the consent of the patient if the patient is a competent person.  In this connection, all adults are assumed to have the competency to consent or refuse treatment unless there is contrary evidence.

The authority to give consent would only fall on the parents or guardians in situations where the person in question is a child, with or without disability or where the person is an adult but suffering from a disability.

In the case where such person is a child, the general rule is that parental consent is required before any medical treatment or procedure can proceed.  According to Section 2(1) of the Child Act 2001 and Section 2 of the Age of Majority Act 1971, a child means a person under the age of 18.  It is on this basis that children are deemed incapable to give consent to medical treatment.  Therefore, the parents are empowered to give consent on behalf of the child in relation to the administration of irreversible contraception.

On the other hand, in the case where the person is an adult with a disability, the form of disability of the person has to first be determined.  The disability here may be divided into two limbs i.e. physical disability and mental disability.

In relation to physical disability, the general rule on consent applies as the person is still capable of comprehending the proposed procedure and the risks associated with such procedure.  Hence, the person may decide on their own whether to have the irreversible contraception administered after being advised by the medical practitioner.

As for mental disability, reference is to be made to Section 77 of the Mental Health Act 2001.  For ease of reference, Section 77 states as follows:

“Giving of consent for surgery, etc.

  1. (1) Where a mentally disordered person is required to undergo surgery, electroconvulsive therapy or clinical trials, consent for any of them may be given—

(a) by the patient himself if he is capable of giving consent as assessed by a psychiatrist;

(b) by his guardian in the case of a minor or a relative in the case of an adult, if the patient is incapable of giving consent;

(c) by two psychiatrists, one of whom shall be the attending psychiatrist, if there is no guardian or relative of the patient available or traceable and the patient himself is incapable of giving consent.

(2) For purposes of subsection (1), it shall be the duty of the registered medical practitioner concerned to ensure that informed consent is first obtained from the patient himself under paragraph (1)(a) before invoking paragraph (1)(b) or (1)(c).

(3) In cases of emergencies, consent for surgery or electroconvulsive therapy may be given— (a) by the guardian or a relative of the patient; or (b) by two medical officers or two registered medical practitioners, as the case may be, one of whom shall preferably be a psychiatrist, if there is no guardian or relative of the patient immediately available or traceable.

(4) Except for subsections (1) and (2), no consent is required for other forms of conventional treatment.

(5) In determining whether or not a mentally disordered person is capable of giving consent under paragraph (1)(a), the examining psychiatrist shall consider whether or not the person examined understands—

(a) the condition for which the treatment is proposed;

(b) the nature and purpose of the treatment;

(c) the risks involved in undergoing the treatment;

(d) the risks involved in not undergoing the treatment; and

(e) whether or not his ability to consent is affected by his condition..

(Emphasis added)

In essence, Section 77 requires consent to be given by the mental patient themselves unless they are incapable of doing so after being assessed by the relevant persons.  In relation to this, it is our view that medical practitioners shall be guided by Section 77(5) in determining whether the mentally disabled person is capable of giving consent to the administration of contraception.

3.  Does our law accept Gillick Competence to assess maturity of the recipient of the contraception if below 18?

Gillick competence is a common law principle that permits children to give valid consent.  Gillick competence was derived from the case of Gillick v. West Norfolk & Wisbech AHA [1985] 3 All ER 402.  The main test to be applied is “whether the child had sufficient understanding and intelligence to enable her to understand fully what is proposed”.  Based on the decision of Gillick, it would seem that parents cannot override their children’s decision once they are able to give a valid consent.  In other words, the right to consent to treatment is lost by parents once the child becomes “Gillick competent”.

In the Malaysian context, a “child” is defined by Section 2(1) of the Child Act 2001 as a person below the age of 18.  The same definition is provided for under Section 2 of the Age of Majority Act 1971.  The position in Malaysia differs from the position in England in the sense that children in Malaysia have not been given much autonomy to decide on their own.  Hitherto, the Court for Children in Malaysia has taken a very paternalistic approach and decisions are made based on the welfare of the child being the paramount consideration.  There is no mention whatsoever in the Child Act 2001 in respect of the wishes of the child.

  • How can we decide if patient is competent in deciding for contraception esp in specific groups i.e with learning disabilities? Is there a medical law governing in regards to this?

The first part of the answer to this question is similar to that of Question 2 above in which, as a general rule, no procedure, examination, surgery or treatment may be undertaken on a patient without the consent of the patient if the patient is a competent person.  In this connection, all adults are assumed to have competency to consent or refuse treatment unless there is contrary evidence.

In determining the competency to consent of a person with medically diagnosed disability such as learning disability, the common law has established several criteria in making the assessment.  In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, the court arranged the decision-making process into three stages-

  • understanding and retaining the treatment information;
  • believing it; and
  • weighing the information, and balancing risks and needs to finally arrive at a decision.

Applying the process in this case, the court held that the right of C’s self-determination had not been overridden.  Even though C’s general capacity was undermined by schizophrenia, it had not been ascertained that he did not adequately understand the nature, purpose and consequences of the treatment that he refused.  It was concluded that he absolutely comprehend his situation and had arrived at an unequivocal decision.

However, in further developments, the “belief” component in Re C was observed by the Court of Appeal in Re MB [1997] 2 FCR 541 where the court stated that elements that should be taken into consideration in determining capacity are-

  • whether the patient can understand and retain the information material to the decision (especially information pertaining to possible repercussions of accepting or refusing a proposed treatment); and
  • whether the patient is able to use the information and weigh it in the balance to arrive at a clear decision.

Therefore, in relation to the question of competency of a person with learning disability to consent to contraception, we are of the view that the three-stage test as enunciated in the case of Re C and the two-stage test as laid down in the case of Re MB above be considered and applied.

4. By law, in Malaysia, how old the patent we can prescibe contraceptive to them? 17?

As for reversible contraception that is non-invasive and requires no medical procedure such as condoms and contraceptive pills, currently there is no age restriction in purchasing or prescribing such forms of contraception.

As for irreversible contraception, the general rule on consent as discussed in the answers to Questions 1 and 2 and Question 4 above applies in order to administer such irreversible contraception.  Briefly, irreversible contraception may be administered with the person’s consent if the person is at least 18 years old and is of sound mind whereas the consent of the person’s parents or lawful guardian is required in a situation where the person is a minor and/or is mentally disabled.

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