CONSENT OVER CHILD’S HEALTH: RELIGION, MEDICINE AND LAW IN COLLISION

Abstract

But for consent, many actions, if not all, would have occasioned liabilities upon the doers of these actions. Consent excuses what ordinarily would have amounted to legal wrongs. Thus, in English jurisprudence, the notion of consent is a crucial one. In the absence of consent, any contact with the body of a person would constitute trespass, for which an action will lie, and damages accrue. When a person’s health is impaired, the need for medical practitioner to ‘invade’ the body of the patient becomes inevitable. Consenting to this ‘invasion’ by an adult with full capacity is no problem, as the patient simply agrees to be treated. An adult may refuse medical treatment and the law would do nothing about this. But with a child the narrative changes, as the child lacks the competence to make decisions for himself or herself. The objective of this paper is to examine the position of the law in cases where a child is needed to be medically treated, and the issue of want of informed consent comes into the equation. Whose consent or what considerations would the law defer to? This is the fulcrum of this article. The paper adopts a doctrinal methodology, and that is, an examination of what the law will do in a situation where a prescribed medical procedure, for instance, blood transfusion, is in conflict with the parents’ religious inclination. This paper found out that where the medically prescribed method of healing of a child conflicts with his parents’ religious view or right, the court, on the basis of what is the best interest of the child, give heed to the prescribed method. It is recommended that whenever the health of a child is in issue, it is what is in the best interest of the child that should determine the treatment or medication that should be deployed.