By Kirsty van Rhyn, Case Manager, Medical Protection
An 11-year-old patient was admitted with symptoms of complicated meningitis. A few days after admission the patient experienced convulsions and after an MRI scan was done, it was confirmed that the patient presented with sinusitis and epileptic seizures.
The patient was put on meningitis treatment and referred to an ENT specialist, Dr W, for treatment of the brain abscess and seizures. The mother of the patient, however, refused that the patient be treated by Dr W. The patient required urgent ENT and neurosurgical intervention and Dr W was concerned that the mother of the patient was interfering with the treatment of the patient’s convulsions and infection in the brain by refusing medication, therapy and requesting that the patient be referred to another institution.
Dr W subsequently made an urgent call to the Medical Protection advice line for assistance. Dr W informed us that he involved a social worker after the mother of the patient refused the intervention of all medical practitioners involved.
How did Medical Protection assist?
Additional members of Medical Protection, who were involved in the treatment of the minor patient, also contacted us for assistance.
Dr W indicated that the mother’s reason for refusing treatment (surgery in the form of the draining of the sinuses and brain abscess) was that she wanted to have the child transferred from Johannesburg to another hospital in Port-Elizabeth (Gqeberha) in the Eastern Cape, where the child’s treating ENT specialist practised. Dr W also advised that the child needed surgery within the next 24 hours and would suffer a stroke or become comatose if surgery was not performed within this timeframe.
Subsequently, after meeting with the patient’s paediatrician, it was confirmed that it was not safe to have the patient transferred out of Johannesburg, and the practitioners involved arranged a transfer to another facility nearby. We advised Dr W that should the mother continue to refuse treatment or refuse the transfer to another facility, the court would need to be approached in terms of Section 129 (10) of the Children’s Act.
Our members were reluctant to tell the mother of the patient that a court order would be sought if consent to treatment were to be further withheld and opted to consult with the mother of the patient again. The mother, however, refused to consult with the neurosurgeon and other members involved as she wanted to take the child home in the belief that he would get better on his own, at home. She believed that the child was not ill, even after the members again explained the diagnosis and scans to her.
In view of the above, we took the view that this ‘belief’ was so irrational that it would trigger section 129(10) of the Children’s Act, thereby shifting the onus to the mother to apply to the court and show that there are other medically indicated treatment options (in this case, that the brain abscess will resolve on its own at home). We advised Dr W that whether he arranged a safe transfer or proceeded with surgery, this could be done without consent in terms of the section stated above, and that the mother should be informed of the intentions in this regard. The neurosurgeon in this case, however, was now reluctant to do surgery due to the mother withholding consent.
After all the events above occurred, all within one day, we were advised that Dr W was in the process of consulting with another neurosurgeon at a different facility nearby, who had advised that surgery will not necessarily be required, but that the child should be closely monitored and that a repeat brain scan should be performed. The mother refused to consent to a repeat brain scan being performed and also refused to consent to the transfer of the child to the nearby facility. At our advice, the repeat brain scan was nevertheless performed. Dr W was advised to continue acting in the child’s best interests, and to arrange the transfer.
The minor patient’s repeat brain scan showed deterioration in his condition, and that urgent surgery was required. Due to the delays from the refusal by the mother to provide consent, the bed at the nearby facility was no longer available. Dr W had accordingly arranged for the patient to be transferred to yet another facility where a specialist neurosurgeon would be on standby to accept the child. Unfortunately, the facility then indicated that it would only be willing to accept such a transfer on receipt of a court order. The mother became increasingly obstructive, necessitating an interdict against her.
Counsel was briefed on a Saturday morning to prepare court papers. The papers were served on the mother the same afternoon, although she refused to sign for receipt. A court order was successfully obtained the same day and the Sheriff served the order on the mother. The mother was permitted to visit the child as the court order did not prohibit contact – it only stated that measures may be taken if the mother was obstructive and prevented necessary treatment from being given. The intention was not to prevent contact between the mother and child, but merely to allow our members to act in the child’s best interest without any further delay or interference.
The procedures were eventually successfully performed, and the child was closely monitored to ensure that a recurring infection did not occur. After one week in hospital, the child successfully recovered and was discharged from hospital.
• If a practitioner is of the clinical opinion that urgent medical intervention is required, in any manner whatsoever, and consent is being withheld, it is crucial that Medical Protection be contacted as soon as possible to assist.
• Section 129 (10) of the Children’s Act states that no parent of a child may refuse to consent to surgery or treatment by reason of religious or other beliefs only, unless the parent can provide a medically acceptable alternative to the proposed medical or surgical treatment.
• In this case the mother of the patient refused to consent to urgent treatment of the minor child due to the belief that the patient’s medical condition is not serious and does not require the proposed medical treatment. This meant that the mother of the patient refused treatment based on “other” beliefs. She did not, however, provide an alternative treatment and as the proposed treatment was of an urgent nature and potentially lifesaving, her refusal could be viewed as unreasonable.
• The Act states that the superintendent, or hospital manager in this case, may consent to the medical treatment or surgical operation on a child if:
“(a) the treatment or operation is necessary to preserve the life of the child or to save the child from serious or lasting physical injury or disability; and
(b) the need for the treatment or operation is so urgent that it cannot be deferred for the purpose of obtaining consent that would otherwise have been required.”
In short, a hospital manager can consent to the treatment of a patient where the child needs urgent surgery or medical treatment and the urgency is of such nature that there is no time to get a court order to obtain consent.
• Section 129(9) of the Act states that the High Court or Children’s Court may be approached for necessary relief if those authorised to consent to the proposed treatment or surgery refuse to do so.
• In complicated cases such as these, it is important to keep all involved parties who have rights and obligations in respect of the patient informed of important developments.
• A clinician’s obligation remains to their patient, in this case the minor child.