Law of Child Consent for Medical Treatment

INTRODUCTION

It is an inevitable statement of life that as children grow up, especially when they get in their teens, they develop the ability and capacity of forming their own opinions, expressing these opinions and evaluating the advantages and disadvantages of certain courses of action for themselves. The law on consent to medical treatment reflects this. However, the law is less clear on the aptitude of a mature, competent child to refuse medical treatment.

This essay is to state how the law adequately protect children who wish to consent or refuse medical treatment? And I will therefore evaluate the capacity

of [1] s8Children Act 1989 s3 (5) which states that a person with care of a child may do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare. I will then examine the level range of which the child’s refusal can be overcome by either those with parental responsibility or by the courts. I will then consider, in light of this evaluation, whether the law adequately protect the children regarding their consent in medical treatment.

Child Ability to Consent to Treatment

In the case of Gillick (1985) her daughter blew open the hitherto unexplored issue of a minor child’s ability to consent to medical treatment. The English decision of the House of Lords in [2] Gillick v West Norfolk and Wisbech Area Health Authority held that children under 16 could, unusually, consent to receiving medical treatment, provided that the child had reached a sufficient understanding and intelligence to understand what was suggested.

3This decision was one of the most vital cases in the area of children’s rights and would then subsequently become one of the most controversial issues due to the failure to decisively state the criteria for what would become known as “Gillick competence”. On the other hand, when referring to the phrase Gillick competence, critics are normally discussing the ability of a minor to make his or her own choices and have such choices upheld by the law.

Competent Child’s Capacity to Refuse Treatment

Under section 8 of the Family Law Reform Act 1969, minors between the ages of 16 – 18 are authorised to consent to their own treatment. When the children get to their teenager groups they normally think they can consent to their own medical treatment regardless. And when this happen can the parents override their child’s refusal of medical treatment? ; Can the courts override the refusal? Or is the child free to decide what is to happen to him or her regardless of whether or not their refusal is in their best interests? In examining these issues I will look at the ability of the parents, and the ability of the courts to override the refusal separately.

The parent’s ability to consent in the face of a competent child’s refusal

Parents have various parental responsibilities in regards to their children and that they are given various rights in order to fulfil those responsibilities. One such responsibility is the responsibility to [4] “safeguard and promote the child’s health, development and welfare”. The parent also has the right to “act as the child’s legal representative”. It is this which gives parents, or those with parental responsibility, the right to consent to medical treatment on behalf of a minor. These responsibilities and rights last until the child reaches the age of 16.

Family Law Reform Act S8 on the capacity of children below the age of 16 was addressed in the famous Gillick case. Relating to this issue I can conclude that as a matter of law when a girl under 16 can give no valid consent to anything in the areas under consideration which apart from consent would constitute an assault, whether civil or criminal and can impose no valid prohibition on a doctor against seeking parental consent.

However tracing back to the judgments in the Gillick case, but determining what would happen in the situation whereby a competent child refuses consent while a parent is willing to give consent depends upon which viewpoint prevails in the law of England, and it is this which remains speculative. In Gillick, there was a difference of opinion between Lords Fraser and Scarman. Even though both agreed that in some circumstances a child could give effective consent to medical treatment, there was disagreement between the Law Lords as to whether a child could only be regarded as competent if he or she were acting in his or her best interests. And best test is relatively straight forward to state the scope of a proxy’s power in principle both parliament and the courts have repeatedly asserted that the guiding principle is that the proxy must act out of a concern for the child’s welfare. The current parliamentary statement of the proxy’s power is contained in S1 (1) of the Children Act 1989

5On the other hand the parental right to determine whether or not the minor child will have medical treatment terminates or [6] “yields to the child’s right to make his own decisions”. This obviously suggests that in a clash between the rights of the parents and those of the child, the rights of the child will succeed.

However, Lord Scarman is also seemingly indicating the possibility that competent children would be free, like adults, to make mistakes as well as wise choices in deciding questions of medical treatment. Lord Fraser, on the other hand, took the view that in determining whether or not a child was competent to consent to treatment, the doctor must be satisfied that the proposed course of treatment is in the child’s “best interests”. This clearly differs from the opinion of Lord Scarman who made no requirement that the treatment be in the best interests of the child. Indeed, on the view of Lord Fraser, if refusal of treatment was not in the best interests of the child then the child would not be considered competent and, therefore, the parental right remains and the parent could give a valid consent.

7Legal Capacity and Responsibility of Minors and Pupils came to the conclusion that if the child was considered to have sufficient maturity then, reasonably, it should not matter whether the treatment was for his or her benefit or not. Following this thread of reasoning, it would seem to be a false contradiction to say that a child can consent to a procedure which may not be in his or her best interests, yet cannot refuse to undergo treatment, the refusal of which may equally be against his or best interests. All of this points towards the adoption of the view of Lord Scarman whereby once the child is considered competent, it does not matter whether the course of action is in the best interests of the child or not, the parent’s right to consent still terminates.

In the case of Re R it was consider that the concept of the ‘Gillick competent’ child and although it was widely assumed previously to this case that ‘Gillick competence’ carried with it the right to refuse and also the comments of Lord Donaldson MR suggest otherwise.

The case concerned a [8] 15 year old girl who was suffering from severe mental health problems and who refused the administration of anti-psychotic drugs. Although the Court of Appeal held that the girl lacked ‘Gillick competence’, Lord Donaldson took the opportunity to express a view as to the ability of a person with parental responsibility to override the refusal to consent by a competent child. He took the view that even if a ‘Gillick competent’ child refused treatment, someone with parental responsibility could still consent, as the parent’s right to consent did not completely disappear but rather was simply no longer able to defeat any consent given by the child. In reaching this view, he felt that when Lord Scarman talked in Gillick about rights “terminating” and “yielding” he was referring to the parental right to determine whether or not a child should receive medical treatment and not their concurrent right to consent.

Lord Donaldson adopted a [9] “key holder” analogy, whereby both the parent and the competent child hold a “key”, and either of them can use this “key” to “unlock the door” – i.e. give a valid consent to treatment. Therefore, if one “keyholder” chooses not to “unlock the door”, there is nothing to stop the other from lawfully doing so.

10Re W in 1992 concerned a 16 year old girl who was suffering from anorexia nervosa and who was refusing all treatment. Although the concept of ‘Gillick competence was not relevant to the case, [11] Lord Donaldson once again chose to express obiter views as to the capability of a minor child to refuse medical treatment. He stated that “No minor of whatever age has power by refusing consent to treatment to override consent to treatment by someone who has parental responsibility for the minor”.

He also expressed regret at his use of the “key holder” analogy as he said that keys can lock as well as unlock. He, therefore, adopted the analogy of the legal “flak jacket” instead, saying that the doctor may acquire this from either the competent patient or someone having parental responsibility. Under this analogy, “ [12] anyone who gives him a flak-jacket (ie.consent) may take it back, but the doctor only needs one and so long as he continues to have one he has the legal right to proceed.

Indeed, as I have suggested above, all of the evidence points towards a different position being taken in any event. The position adopted in Re R and Re W would also give rise to the alarming possibility of mature children being subjected to medical treatment against their will, despite having the competence to make their own choices. Such treatment could range from the simple administration of drugs to hospitalisation or even the removal of organs. The law does not interfere to this extent with adults so why with competent, mature children?

13These statutory provisions, therefore, suggest that the competent child does have the right to refuse. This is consistent with the present NHS guidelines which recommend that the refusal of treatment by “competent young people” under 16 “must be effect that the refusal of a competent child could not be overruled by the consent of a parent. He said that “it seems to me illogical that on the 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.”

The court’s ability to consent

I will turn now to the ability of the court to override a refusal by a competent child. Once again, there are two competing views as to whether it is competent for the wishes of the child to be overridden. [14] Under s11 of the 1995 Act, an application can be made to the court in relation to parental responsibilities and parental rights.

Such an application can be made either by a person having parental responsibilities or rights, or by a person who does not have such responsibilities or rights but who “claims an interest”. The latter category could include doctors, an unmarried father or perhaps a grandparent. In relation to the question of medical treatment, the application to be made would be for a specific issue order, as this regulates any ‘specific issue’ which arises in relation to parental responsibilities and rights.

Conclusion

The wishes of a child who has the capacity to decide whether to consent to or refuse a proposed treatment should be respected. However, the legal position in England and Wales means that, in some circumstances where a child has made a competent refusal of a treatment, a person with parental responsibility, or the courts, may nevertheless authorise the treatment where it is in the child’s best interests.

It may be true that the implications of refusing treatment may be serious and perhaps even dangerous but the same can be said of adults who refuse treatment. Once it is established that a child is competent and mature enough to have sufficient understanding to make decisions what justifications are there for the parent overriding the decision of the child? Indeed, making a ‘wrong’ choice is one of the consequences of judging someone to be competent and mature enough to make their own decisions. The decisions of competent children may be misguided but again so may those of adults.