Medical treatment – Can Our Children Say No?

I wrote this piece recently after reading a few articles in newspapers etc. I have a slight interest in Medical Law – although granted in relation to negligence as opposed to ethics. So here goes…..

Medical treatment; our rights and choices towards it and the laws governing such has often been viewed as a complex subject, mainly due to the ever changing nature of medical advancement; in contrast with the slow change of legal statute. There are four main principles in medical ethics: Autonomy, Beneficence[1], Non- Maleficence[2] and Justice.   However, one particular principle that those studying the law towards medical ethics have always found difficult to fully answer is in respect to the autonomy of a child in relation to their ability to consent to, or refuse medical treatment.

The law has long accepted that from the age of 18[3], most adults have the right to accept or to refuse medical treatment on the basis that they are fully competent.[4] The question that arises is: do children also have a legally recognised right to consent or withhold consent to medical treatment? The answer to such could be termed as subjective, depending on the nature of the child as an individual. However the law does have measures in place with respect to this controversial matter.

Ability to Consent:

England, Wales & Northern Ireland:

Due to the nature of the law within the United Kingdom, there are significant differences between the legal jurisdictions of Scotland and that of the rest of the U.K. In England, Wales and Northern Ireland the law regarding a child’s consent to medical care is mainly a principle set within the common law.[5] In most cases consent to medical treatment will be based on the decision of a competent child. Should a patient be too young[6] to give consent; then consent can also be taken from that of a parent, carer, or the courts. Should the medical treatment be in emergency then the patients ‘best interests’ must be taken in to account at times where the ability to confirm consent is impractical. It is important to note than within this jurisdiction the ability to give consent on behalf of a child does not extinguish in full until a child reaches the age of 18.[7]

In relation to a child’s ability to provide consent towards medical treatment, then the clearest illustration of this can be found in the infamous case of Victoria Gillick’s daughter that has defined the previously unexplored issue of consent by someone that was legally regarded as a minor. The case, decided upon in the House of Lords, effectively held that children under the age of 16 could indeed consent to medical care under the provision that the child in question could show that they had a sufficient understanding and intelligence to understand the treatment that was in question. [8]

The Gillick case[9] can be classed as a reasonable starting point in relation to a child’s ability to consent to medical treatment; however, the case itself did not give a form of criteria to actually determine the competence of a child in this matter and in doing so has allowed the decision on competence to be of a subjective nature. I would infer that this measure is entirely appropriate based on the significant differences on maturity in children. One child may be academically intelligent for example, but this alone should not determine that that same child has a greater intelligence of their own body or own ‘best interests’ than one that is not of the same academic achievement.

It should also be pointed out that in England the Family Law Reform act[10] allows legislative protection to consent for older children; consent that allows them the same rights as that of full adults.[11] This blurs the scope between full recognition as an adult and that of a minor. This move also allows a flexibility and welcome to legal capacity for those that are perhaps more mature from a younger age whilst still offering protection for those who perhaps have not attained such a personal understanding by the age of 16.

Consent In Scotland:

In Scots law, it was initially the presumption that the ideals of the Gillick case[12] would be followed. This has since changed and the law in Scotland regarding consent to medical care is now based around statutory provision as opposed to a more common law approach.

The legislation governing a child’s ability to consent to medical treatment was introduced after the Gillick case and would appear to put the decision of the English case into a statutory form in Scotland. The statute would appear to entail the same principals set out in the Gillick case itself[13].  The legislation makes clear, that a child under the age of 16 can indeed consent to medical treatment. [14] This piece of legislation also reiterates this ability for those between the ages of 16 and 18 by stating that a person over the age of 16 has legal capacity to enter into any transaction.[15] A transaction is further defined in the act as being, “the giving of a person of any consent having legal effect”.[16] It would have to be considered that refusal of consent to medical treatment can result in a legal action for assault and therefore consent to medical treatment would have to be included under this law. This means that even although the patient is under the age of 18, the age recognised as maturity in Scotland, someone between the ages of 16 and 18 would be presumed competent to consent to medical treatment.

It is clear to see that within both Scottish and other U.K. jurisdictions, a child’s ability to consent to medical treatment is not just considered but is indeed paramount to the decision on treatment. In England the common law is at times referred to as ‘Gillick competence’ and in Scotland “S 2 (4) competence” although, the principles remain the same. As illustrated above, between the ages of 16 and 18 in Scotland it could be argued to presume consent but even out with this age group any child that can show the mental maturity to consent to medical treatment and fully understand the scope of the treatment may consent.[17] The person to whom this mental maturity must be shown is that of a medical practitioner.[18] This is something that could be seen as entirely subjective and possibly open to abuse should the treatment perhaps fall within the individual moralistic viewpoint of such a practitioner as opposed to the child’s best interests. This move however would conflict with the medical ethics of beneficence and non – maleficence. The medical practitioner must consider the patients ‘best interests’ whilst at the same time making a considered judgement on their mental maturity and respecting their personal autonomy.

Questions may arise over the choice of a child who does not fit the competence levels that are discussed above. In this situation it is widely accepted in legislation that a parent, or those with parental responsibilities, will be authorised to give consent.[19]

The general view on this subject, based on the evidence provided, would be that a child does have the ability to consent to medical treatment and this is indeed recognised by law in statutory form and that of the common law; under the provision of competence.

To reiterate this view, it would be competent to remind ourselves that law in the United Kingdom, under any jurisdiction; must be compatible with the law expressly incorporated by the human rights act.[20] In both situations regarding child competence, namely the Gillick case[21] and Age of Legal capacity act[22] the decision and legislative law were introduced before the introduction of the Human Rights Act. [23]It is now accepted that legislation must be read in accordance with Human rights but that does not mean they were not applicable prior to the act as they were originally provided by the ECHR.[24] Under Article 8 of the European Convention on Human Rights there is a provision for the right to a private life. This could be suggested to provide for autonomy and therefore be argued by minors to protect their ability to consent to treatment. Furthermore, Article 12 of the United Nations Convention on the Rights of the Child, also ratified by the United Kingdom expressly states that a child capable forming its own views should have the right to express them.[25]

Refusal of Consent:

England, Wales & Northern Ireland:

Due to the nature of the evidence on child consent to medical treatment the matter could be deemed as somewhat straight forward. This, however, is in sharp contrast on the child’s right to refuse medical treatment.

Once again the law regarding a child’s right to refuse medical treatment could be regarded as different between English and Scottish jurisdictions. The Scottish law on the right to refuse does not always seem to have found agreement between academics in literature. Some have suggested that having the capacity to consent would also therefore include the capacity to refuse medical treatment.[26] The decisions of the courts on the other hand do not always substantiate such a view.

Although an English case, the first time that the court had to decide on a child’s right to consent; the final outcome did not assert a child as having a right to refuse medical treatment. [27] Originally, the lower courts had indeed decided that a child that was deemed to be ‘Gillick competent’ could both consent and refuse consent to medical treatment with no interference from their parents or the courts. However, on appeal this decision was overturned by Lord Donaldson who argued that the court could indeed override the refusal of a child no matter the child’s capacity to consent.

This idea was further emphasised by the decision in Re W.[28] In this decision the case involved a child of the age of 16. As highlighted in relation to consent, legislation would appear to have put older children in a stronger position with rights to refuse medical treatment,[29] but this was not the decision of Lord Donaldson. Indeed, Lord Donaldson decided to express his obiter views that, “No minor of whatever age has the power by refusing consent to treatment to override a consent by someone who has parental responsibility for the minor”.[30] It is at this point that we appear to have a conflict between Lord Donaldson’s decision and that of the legislation.[31] If, as the legislation provides, children of the age of 16 and 17 have the same rights as an adult with full capacity, then their right to refuse medical treatment should be absolute. Lord Donaldson clearly did not agree with this interpretation of the legislation and the decision would appear to defy logic as surely the expressed right to consent would carry with it the right to refuse in parallel of that of an adult with full capacity. The decision in Re W[32] would also appear to reject the statutory protection in the Children Act.[33]

The courts in England have also been quick to diminish any right of a child to refuse consent on religious grounds stating that no child should be allowed to martyr themselves on religious beliefs.[34] This idea was further committed on the basis that refusal to consent to life saving treatment could infer a lack of understanding (required to be Gillick competent) to the resulting consequences of refusal, even on religious grounds.[35]

One thing that is profound from the legal judgments made by Lord Donaldson is that there appears to be, in English law at least, a cogent gap between those who have reached the age of adult maturity and those who have not. This gap is suffice to allow the courts to intervene at times when they do not agree that the child has their own ‘best interests’ at hand.

Refusal of Consent In Scotland:

The Law in Scotland with regard to the matter of a child’s refusal to consent is one that remains equivocal. It would be fair to argue that similarly to the English Legislation the Scottish statute does not expressly state an ability to refuse consent. [36] On that basis, it would be fair to argue that the English decision of Re: W [37] would be persuasive in the Scottish Courts. It could also be argued that refusal to treatment would show, or be deemed to show, a lack of understanding and competence required by the Scottish act.[38]

It is also possible to argue that Scotland may indeed take a different view from those of the English courts. The introduction of the Children (Scotland) Act[39] contains within it various provisions that could be read in conjunction with a child’s right to refuse medical consent. The act would appear to indicate that medical treatment can only be carried out if the child consents.[40] The wording of this piece of legislation would appear to provide a stronger position for children with the required capacity,[41] as it does not allow treatment to be carried out ‘without’ consent. Therefore it could be argued that a child may indeed refuse medical treatment. In section 15 of the act, there also appears to be words to the effect that a child’s legal representatives can only act to give consent where the child is ‘incapable’.[42] Again, although rather ambiguous, the legislation could be argued to protect the child’s own decision. The argument in this may be rather weak as further academic view has stated that this particular section could be expressed with further clarity.[43]

Further guidance towards a child’s right to refuse consent could possibly be taken from the case of Houston.[44]In this case, although the decision was taken under a different path the obiter comments made, that a competent child should be allowed to decide for themselves, and not be over-ruled by those with parental rights, could be persuasive.[45] This initial comment on the matter would strive to point the Scot’s law in a different direction from that in England.

Once again, there must be a connection to the rights conferred under the Human Rights Act.[46] It has been argued, although not universally accepted, that refusal to respect a mature minors decision to refuse medical treatment could breech Articles 2,3,5 and 8 of the act.[47]

As we can see from the evidence above; the law in England appears to be far more advanced than that in Scotland. In England, yes, a child does have the ability to refuse consent but that refusal can be overturned by the courts should it be deemed that refusal to treatment would not be in the ‘best interests’ of the child. The case-law provided would indicate however that as much as a child can say ‘no’ to medical treatment this right is purely theoretical as the courts have decided that the child’s best interests are more appropriately decided by that of a medical professional and not of their own.  In Scotland however, a child’s right to refuse has never been clearly challenged in the courts.[48]

Conclusion:

The conclusion that would need to be drawn from the law governing the right to accept or refuse medical treatment by children is that a child can clearly say yes to treatment, given that they fulfil the competency criteria, but cannot clearly say no to treatment. It would appear, from the case-law discussed above, that the courts will give more credence to the medical opinion of an expert as to what the best interests of the child are as opposed to the wishes of the child themselves, no matter their apparent statutory recognition or their fulfilment of any competence recognition that would be used to achieve their consent to treatment. The decision in Gillick[49] would prima-facie the ideal of a functionalist approach to medical consent and therefore refusal of consent. However, from the decisions in the English courts, it could be suggested that the approach is more one of status in relation to a child’s autonomy. One thing that is unclear is the courts apparent refusal to recognise a child’s right to refusal whilst at the same time fully supporting the same decision of an adult; even although medical advice may suggest that treatment is in the adult patients best interests.

Finally, where the law is seen to grant the right of consent, it is intangible regarding the right to refuse consent in minors. The lack of clear statutory guidance on this matter may be a deliberate move by Parliament as it allows the discretion of the courts to decide on cases on an individual basis and what may be in the patients best interests as opposed to a universal, concrete decision that may be found at a later date to be premature and conflicting with societies ethical viewpoint.


[1] Benefit

[2] Do no harm

[3] Age of Majority (Scotland) Act 1969 S.1

[4] Unless proved otherwise

[5]Gillian Romano – Critchley , Consent, Rights and Choices in health care for children and young people, (BMJ London, 2001) P.31

[6] Deemed not to be competent

[7] Re W (A minor) (Medical treatment: Courts Jurisdiction) [1993] Fam 64.

[8] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112

[9] ibid

[10] Family Law Reform Act 1969

[11] Family Law (Reform) Act 1969 S. 8 (1) (3)

[12] ibid

[13] Mason, J.K.,Laurie G.T.  Law and Medical Ethics, (oxford University Press, Oxford, 2011) P.72

[14] Age of Legal Capacity (Scotland) Act 1991 S. 2 (4)

[15]  Age of Legal Capacity (Scotland) Act 1991 S.1 (1) (b)

[16] Age of Legal Capacity (Scotland) Act 1991 S.9 (d)

[17] Age of Legal Capacity (Scotland) At 1991 S. 2 (4)

[18] ibid

[19] Children (Scotland) Act 1995 S.1 (a) + S.2 (1) (d)

[20] Human Rights Act 1998

[21] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112

[22] Age of Legal Capacity (Scotland) Act

[23] Human Rights Act 1998

[24] European Convention on Human Rights

[25] …the child who is capable of forming his or her own views has the right to express those views freely in all matters affecting the child: the views of the child being given due weight in accordance with age and maturity of the child.

[26] Wilkinson, A and McK. Norrie, K, “The law relating to the parent and child in Scotland”, (Edinburgh, W.Green 1993) P.183

[27] Re R ( a minor) (Wardship: medical treatment) [1992] Fam 11

[28] Re W (a minor) (Medical treatment) [1992] 4 ALL ER 627

[29] Family Law (Reform) Act 1969 S.8

[30] Re W (a minor) (Medical treatment) [1992] 4 ALL ER 627 P.639

[31]  Family Law (Reform) Act 1969 S.8

[32] Re W (a minor) (Medical treatment) [1992] 4 ALL ER

[33] Children Act 1989

[34] Re E (a minor) (Wardship: medical treatment) [1993] 1 FLR 386

[35] Re S (a minor) (Consent to treatment) [1994] 2 FLR 1065

[36] Age of Legal Capacity (Scotland) Act 1991 S. 2

[37] Re W (a minor) (Medical treatment) [1992] 4 ALL ER 627

[38] Age of Legal Capacity (Scotland) Act 1991

[39] Children (Scotland) Act 1995

[40] Children (Scotland) Act 1995 S.90

[41] Age of Legal Capacity (Scotland) Act 1991 S. 2 (4)

[42] Children (Scotland) Act 1995 S. 15 (5)

[43] Wilkinson, A and McK. Norrie, K, Parent and Child (2nd ed. Edinburgh: W. Green.1999) P.261

[44] Houston (Applicant) 1996 SCLR 943

[45] “ it seems to me illogical that on one hand a person under the age of 16 should be granted the power to decide upon medical treatment for himself but his parents have the right to override his decision. I am inclined to the view that the minor’s decision is paramount and cannot be overridden” P.945

[46] Human Rights Act 1998

[47] Mason, J.K.,Laurie G.T.  Law and Medical Ethics p.74 (oxford University Press, Oxford, 2011)

[49] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112

Advertisements
Explore posts in the same categories: Current Issues, Politics

Tags: , , , , , , ,

You can comment below, or link to this permanent URL from your own site.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: