Sample 2:1 Undergraduate Law Outline

An essay on whether the ability of the courts/parents to override the medical treatment decisions of minors in harmful situations is justified.

Introduction

• Outline essay’s goals: critical discussion of whether the ability of the courts/parents to override the medical treatment decisions of minors in harmful situations is justified.
• Overview of structure:
  • Summary of law
  • Philosophical issues
  • Is the law justified?
• Outline of argument:
  • In cases where children are acting autonomously, the law is not justified.

Overview of the Law

• General rule with adults: patients must consent to treatment; non-consensual treatment is battery.[1]
  • Exception: if the patient lacks ‘capacity’, outline the definition of capacity given in ss.1-3 of the Mental Health Act 2005.
    • Defined as ability to make treatment decisions,[2] including ability to remember, understand and communicate decisions.
    • Doctors must take steps to assist an adult in having capacity,[3] and it is irrelevant whether they approve of a capable adult’s decision.[4]
    • Adults are presumed to have capacity.
• General rule with under 16s: presumed not to have capacity unless proved ‘Gillick-competent’.[5] This requires:
  1. Sufficient ability to understand the treatment and consequences;
  2. Sufficient maturity to weigh information and make decisions;[6]
  3. Life-experience, including exposure to different philosophies and world-views;[7]
  4. Ability to understand any moral or family issues involved.[8]
• General rule with 16-18-year-olds: presumed to have the capacity to consent to treatment,[9] but not refuse it.[10] In the latter case, must be proven Gillick-competent.
• If a minor is not Gillick-competent:
  • Parents may make the decision on the child’s behalf (part of their parental responsibility).[11]
  • Alternatively, the court may make the decision if in the best interests of the child (and can override parent’s wishes).[12]

Can Overriding Consent be Justified?

• Requiring consent bolsters and supports autonomy, a core principle of medical law.
  • Define autonomy (e.g. quote Oshana’s definition[13]). Note it includes respect for beliefs perceived as irrational by others.
  • Respecting autonomy = necessary to allow people to lead flourishing existences,[14] + acknowledges that people tend to know better what is in their best interests.[15]
  • Autonomy = particularly important in medical context, as freedom to choose when one’s bodily integrity is breached is part of autonomy’s core.[16]
  • Autonomy = treated as a right in Western tradition, e.g. European Convention on Human Rights include a right to autonomously speak, choose religion etc.[17]
• Autonomy is usually seen as infringed by paternalism.
  • Define paternalism (see Beauchamp & Childress, p.178 for a good definition).[18]
  • Western tradition typically rejects paternalism – e.g. it is battery to override consent of most adults.
• However, paternalism does not always infringe autonomy.
  • Autonomy requires capacity to understand & process relevant information and an uncoerced environment to ensure the decisions are truly free.[19]
  • If any of these factors are lacking, paternalism can be justified.
  • Paternalism can exist in degrees, e.g. giving a person extra information (‘soft paternalism’) vs completely overriding their stated decision (‘hard paternalism’).[20]
  • Depending on how much the person lacks the capacity for autonomous decision-making, different degrees of paternalism can be justified.[21]
    • E.g., encountering a misinformed person might justify soft paternalism (they only lack some capacity), while treating a comatose person might justify hard paternalism (as they have no capacity[22]).
• This shows that overriding the decisions of children will only be justified if they lack capacity/freedom.

Is the Law Justified in Overriding Children’s Consent?

• Some children obviously lack capacity (e.g. babies and toddlers).
  • Older children may also lack capacity (research shows parts of the brain involved in decision making are not yet developed in many teenagers^[23] and that they are also more likely to lack key mental facilities[24]).
    • It is therefore important to ascertain that a child is sufficiently developed.
    • Factors 1-2 of the Gillick test are a test of sufficient development.
      • Demonstrate this with an overview of the facts + outcome of Re JM.^[25]
• Children are more likely to be insufficiently free/uncoerced.
  • Children are more likely to be indoctrinated/involuntarily cut off from other perspectives (particularly re. religion).[26]
    • This can impact health decisions, e.g. Jehovah’s Witnesses/blood transfusions (especially given anecdotal evidence of a high degree of coercion in some religious communities[27], see e.g. Re T which involved a coerced adult[28]).
    • It is therefore important to ascertain that a child is sufficiently free.
    • Factors 3-4 of the Gillick test are designed to ascertain if the child is sufficient free.
      • Demonstrate this with an overview of the facts + outcome of Re L.[29]
• Paternalism is therefore justified in cases where the child is not Gillick-competent, as they are not capable/free.
  • Children are less likely to have capacity, so presuming incapacity is justified.
• However, in theory there will be children who are developed enough and free, and so able to autonomously refuse treatment. In these cases, paternalism = unjustified.
• This makes it problematic that, in practice, the courts seem unwilling to ever hold a child competent to refuse treatment, no matter how mature. The threshold might, therefore, be impossible to meet in practice in refusal of treatment cases.[30]
  • Demonstrate with the facts + outcome of Re E[31] (involved a very mature child).
    • Note that he chose to end treatment after turning 18 (showing his decision was persistent and considered).[32]
    • Note also that the court relied on the fact that he was insufficiently informed as to the horrific nature of his potential death to argue that he lacked capacity, but unlike with adults the doctors were not under an obligation to apply soft paternalism and give him the necessary information (which he arguably would have understood and therefore would have become capable).
  • The double standard for over 16-year-olds also demonstrates this.[33]
• Some argue this is justified: it is easier to understand the consequences of accepting treatment versus rejecting it.^[34] However autonomy surely requires both: one cannot meaningfully choose to accept treatment without understanding the implications of rejecting it.^[35]
• As such, while in theory the requirements of Gillick-competence are justified, in practice they are applied in an unjustified manner.

Conclusion

• The law is justified in overriding the choices of children in cases where they are incapable of making autonomous decisions.
• However, the current law appears to make it impossible for a child to choose to refuse treatment in harmful situations, even where they are autonomous. This is unjustified.

Bibliography

Table of Cases

An NHS Trust v Mr & Mrs A [2014] EWHC 1135

Camden LBC v R (A Minor) (Blood Transfusion) [1993] 2 F.L.R. 757

Gillick v West Norfolk and Wisbech Health Authority [1985] 3 All ER 402

R (A Minor) (Wardship: Consent to Treatment), Re [1992] Fam. 11

Re A (Children) (Conjoined Twins: Medical Treatment) (No.1) [2001] Fam. 147

ReE (A Minor) (Wardship: Medical Treatment) [1993] 1 F.L.R. 386

ReJM (a child) [2015] EWHC 2832

Re L (Medical Treatment: Gillick Competency) [1998] 2 FLR 810

Re T (adult: refusal of medical treatment) [1992] 4 All ER 649, [1992] 3 WLR 782

Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1992] 3 W.L.R. 758

Table of Legislation

Family Law Reform Act 1969

Mental Health Act 2005

Books

Beauchamp T, Childress J, Principles of Biomedical Ethics (4^th edn, Oxford University Press 1994)

Coons C, Weber M, Paternalism: Theory and Practice (Cambridge University Press 2013)

Eckstein S, Manual for Research Ethics Committees (Cambridge University Press 2003)

Fortin J, Children's Rights and the Developing Law (Cambridge University Press 2009)

Lerner RM, Overton WF, The Handbook of Life-Span Development, Cognition, Biology, and Methods (John Wiley & Sons 2010)

Oshana M, Personal Autonomy in Society (Ashgate Publishing 2006)

Pozgar GD, Santucci N, Legal Aspects of Health Care Administration (12^th edn, Jones & Bartlett Publishers 2015)

Sandberg R, Law and Religion (Cambridge University Press 2011)

Nys T, Denier Y, Vandevelde T, Autonomy & Paternalism: Reflections on the Theory and Practice of Health Care (Peeters Publishers 2007)

Periodicals

Cauffman E, Steinberg L, ‘(Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults’ [2000] Behav. Sci. Law 741

Cave E, ‘Minors’ capacity to refuse treatment: A rely to Gilmore and Herring’ [2012] Med. L. Rev. 423

Clarke S, ‘Informed Consent in Medicine in Comparison with Consent in Other Areas of Human Activity’ [2001] Southern Journal of Philosophy 169

DeWolf Bosek MS, Savage TA, The Ethical Component of Nursing Education: Integrating Ethics Into Clinical Experience (Lippincott Williams & Wilkins 2007)

Douglas G, ‘The Retreat from Gillick’ [1992] MLR 569

Gilmore S, Herring J, ‘”No” is the hardest word: consent and children’s autonomy’ [2011] CLFQ 1

Guichon J, Mitchell I, ‘Medical emergencies in children of orthodox Jehovah’s Witness families’ [2006] Paediatr. Child Health 655

LaFollette H, ‘Freedom of Religion and Children’ [1989] Pub. Aff. Q. 75

Pullman D, ‘The ethics of autonomy and dignity in long term care’ [1999] Canadian Journal on Aging 26

Footnotes

[1] Sue Eckstein, Manual for Research Ethics Committees (Cambridge University Press 2003), 89

[2] Mental Health Act 2005, ss.1-3

[3] Ibid., s.1(3)

[4] Ibid., s.1(4)

[5] Gillick v West Norfolk and Wisbech Health Authority [1985] 3 All ER 402

[6] An NHS Trust v Mr & Mrs A [2014] EWHC 1135, [68]

[7] ReL (Medical Treatment: Gillick Competency) [1998] 2 FLR 810

[8] Gillick v West Norfolk and Wisbech Health Authority [1985] 3 All ER 402, 424

[9] Family Law Reform Act 1969, s.8(1)

[10] Camden LBC v R (A Minor) (Blood Transfusion) [1993] 2 F.L.R. 757; Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1992] 3 W.L.R. 758

[11] Camden LBC v R (A Minor) (Blood Transfusion) [1993] 2 F.L.R. 757, [25]

[12] Re A (Children) (Conjoined Twins: Medical Treatment) (No.1) [2001] Fam. 147

[13] Marina Oshana, Personal Autonomy in Society (Ashgate Publishing 2006), 5

[14] Thomas Nys, Yvonne Denier, Toon Vandevelde, Autonomy & Paternalism: lections on the Theory and Practice of Health Care (Peeters Publishers 2007), 2

[15] Marcia Sue DeWolf Bosek, Teresa A. Savage, The Ethical Component of Nursing Education: Integrating Ethics Into Clinical Experience (Lippincott Williams & Wilkins 2007), 320

[16] Steve Clarke, ‘Informed Consent in Medicine in Comparison with Consent in Other Areas of Human Activity’ [2001] Southern Journal of Philosophy 169, 172

[17] Russell Sandberg, Law and Religion (Cambridge University Press 2011), 81

[18] Tom Beauchamp, James Childress, Principles of Biomedical Ethics (4^th edn, Oxford University Press 1994), 178

[19] Ibid., 59

[20] Christian Coons, Michael Weber, Paternalism: Theory and Practice (Cambridge University Press 2013), 74

[21] Daryl Pullman, ‘The ethics of autonomy and dignity in long term care’ [1999] Canadian Journal on Aging 26

[22] George D Pozgar, Nina Santucci, Legal Aspects of Health Care Administration (12^th edn, Jones & Bartlett Publishers 2015), 327

[23] Richard M. Lerner, Willis F. Overton, The Handbook of Life-Span Development, Cognition, Biology, and Methods (John Wiley & Sons 2010), Ch. 13

[24] Elizabeth Cauffman, Laurence Steinberg, ‘(Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults’ [2000] Behav. Sci. Law 741, 742

[25] ReJM (a child) [2015] EWHC 2832

[26] Hugh LaFollette, ‘Freedom of Religion and Children’ [1989] Pub. Aff. Q. 75

[27] Juliet Guichon, Ian Mitchell, ‘Medical emergencies in children of orthodox Jehovah’s Witness families’ [2006] Paediatr. Child Health 655

[28] Re T (adult: refusal of medical treatment) [1992] 4 All ER 649, [1992] 3 WLR 782

[29] Re L (Medical Treatment: Gillick Competency) [1998] 2 FLR 810

[30] Gillian Douglas, ‘The Retreat from Gillick’ [1992] MLR 569

[31] ReE (A Minor) (Wardship: Medical Treatment) [1993] 1 F.L.R. 386

[32] Jane Fortin, Children's Rights and the Developing Law (Cambridge University Press 2009), 154

[33] R (A Minor) (Wardship: Consent to Treatment), Re [1992] Fam. 11

[34] Stephen Gilmore, Jonathon Herring, ‘”No” is the hardest word: consent and children’s autonomy’ [2011] CLFQ 1

[35] Emma Cave, ‘Minors’ capacity to refuse treatment: A rely to Gilmore and Herring’ [2012] Med. L. Rev. 423