By: Ceejay Byrne (A 2020 LLB (HONS) Graduate Student)
Although the idea that the patient should be ‘told what is about to be done to him’ was initially discussed by the judiciary in 1767, the principle of informed consent was not implemented into law until the twentieth century. Historically, doctors would have sworn the Hippocratic Oath that they would make the treatment decisions to benefit the patient, however there is a greater respect for the patient’s autonomy in modern society. Autonomy is the right a person has to self-governance over their own body, as opposed to paternalism where a person’s freedom is restricted by a higher authority.
The main factor in determining whether a patient’s consent to medical treatment is valid is proving they have the capacity to consent. Capacity to consent is context specific, therefore a patient may be seen to have capacity to consent to one treatment but not to another. Where capacity to consent becomes even more controversial is in relation to children. In Northern Ireland, there are two different approaches to a child’s capacity to consent, depending on whether the child is over or under the age of sixteen. I believe the reasoning for this distinction is based on mere practicality; a child can only be treated in the paediatrics ward up to the age of sixteen. Sixteen and seventeen year old children transition into adult healthcare services and this is likely why they are governed under the same statute as adults.
The Mental Capacity Act (NI) 2016 applies to all those over the age of sixteen and sets out that a person lacks capacity and therefore cannot make a decision for themselves if they have an impairment of, or a disturbance in the functioning of, the mind or brain, or if they are unable to understand, retain or appreciate the relevance of the information or communicate their decision. These are known as the diagnostic test and the functional test respectively.
The case of Gillick v West Norfolk and Wisbech Area Health Authority granted a child under the age of sixteen the ability to consent to medical treatment if they have ‘sufficient understanding and intelligence’ of the matter. The House of Lords noted in this judgment that when the child reaches this sufficient level of understanding and intelligence, the parent’s right to make decisions for the child is terminated and the child can make their own medical decisions. However, in my opinion, Gillick did not mark the beginning of a necessary revolution of the law in this area, but rather a rare moment of hope for change in the child’s capacity to consent.
An overview of the case law illustrates that the courts are very reluctant to allow a competent child to refuse medical treatment. The judiciary have stated on different occasions that it is wrong to assume that Gillick gave children the permission to refuse treatment, and that no minor under the age of eighteen, either governed by case law or statute, is deemed fit by the courts to refuse treatment and their choice will ultimately be overruled by the consent of another party.
Precedent cases shows that it is possible for those with parental responsibility over the child, the judiciary or even in certain circumstances a medical professional to consent to medical treatment should the child themselves refuse the treatment. In my opinion, this is an obvious fault in the law - practically any other party in these circumstances can override the wishes of the patient who is receiving the treatment, highlighting that paternalism ultimately wins over patient autonomy in cases involving minors.
One would evidently begin to question why the courts have set such a restrictive precedent in this area and why they continue to decline competent children the right to refusal of medical treatment. Their worries surrounding this area seem to be based on the idea that society has a protective duty for children under the age of majority and so should intervene before any irrational decisions are made. This fear that the child could not possibly refuse treatment and potentially cause themselves severe harm or even death seems to be based on the rationale that one would assume all minors do not have the full wisdom and understanding necessary to make such important decisions.
However, the law is willing to hold that these same minors have the capacity to consent to this same important medical treatment. As academic Harris has previously noted, for a child to be mature and have sufficient understanding to give consent they must have an understanding of the potential consequences of the alternative, therefore being competent enough to refuse. The court cannot simply hold that this child who they have found to be of sufficient maturity and understanding to consent to medical treatment does not understand the consequences of refusing this treatment. In order for this child to be deemed capable of consenting to medical treatment, it would seem obvious that the court would need to ensure the child understood what would happen if they did not consent to the treatment. This suggests to me that this entire concept of the child having the capacity to consent is fabricated by the courts to simply pacify these mature minors.
Many academics have alluded to this suggestion that a child’s capacity to consent is merely a fictional concept, and these arguments ring true when analysing case law. The court is happy to accept that a child is able to possess the capacity to consent, because this is likely what would have been decided for them by those who have parental responsibility over them. However, the story changes once the child demonstrates a refusal of this treatment; their supposed ‘capacity to consent’ is diminished and parental consent is required by the medical professional once again.
I believe that these problems stem from the fact that the vital elements which have been discussed by the courts in deciding whether a child has capacity - the child’s age, maturity level and understanding - are not being properly taken into account. If the court were to analyse these in minor patients correctly, they would be satisfied as to whether the child has the necessary knowledge and understanding of their decision, either consenting to or refusing the medical treatment, and therefore the court could hold the patient capable of freely making their own medical decisions. This would mean that a competent child would have the same legal standing in this area as a competent adult.
Following on from the idea that the competent minor should have the same rights as a competent adult in making their medical decisions, one should note the distinction that has been created between a mature minor and a young adult. The law has set what Brazier and Bridge have called an ‘arbitrary age limit at which autonomy is acquired’. In my opinion, the law has this mythical idea that a completely unaware child wakes up on their eighteenth birthday and suddenly has the knowledge and understanding necessary to provide valid consent which will not be questioned. While one would assume that it is common knowledge that this is not possible, the case of Re E illustrates that this seems to be the outlook of the court.
In this case, the court has held that even though the teenager was highly intelligent, mature and well informed, he was unable to refuse medical treatment on the basis of his religious beliefs. While this may merely seem to be consistent with prior case law, this judgment arguably veers in the wrong direction because soon after the judge’s ruling the claimant turned eighteen years old and he was immediately deemed capable of refusing the treatment. One is forced to question whether the judiciary truly believe that this boy received any more knowledge or understanding on his treatment and the consequences of refusing it in the short amount of time between him being held to be incapable of denying the treatment as a minor and him subsequently being allowed to refuse the treatment once turning eighteen. I believe that the only real difference is that he reaches this milestone ‘arbitrary age’.
As I have mentioned, there have been circumstances where the courts have refused to accept a competent child’s refusal to medical treatment and the different parties who can then provide this consent. However, there has never been a discussion by the judiciary regarding what happens if treatment goes ahead in these cases where the child clearly does not want it to. Fortin poses a significant question in relation to this - what if the mature teenager has to be physically held down to undergo the procedure they did not consent to? The court has previously noted that procedures will not go ahead if the child is not accepting of it, however one must consider how these cases transpire in reality. If it involves something as extreme as holding the child down, this is clearly a serious violation of the child’s rights.
As Heywood has previously noted, to any concerned parent or guardian with a child refusing treatment which would result in serious harm or death, arguments of adolescent autonomy would be irrelevant to the safety and welfare of their child. In that sense, the current law supports these parents, given that the child only has the power to consent to treatments and parental consent can overrule a child’s refusal of medical treatment. However, this doesn’t alter the fact that the current law suppresses the competent child’s right to make their own medical decisions. If the child is held either under statute or case law to be capable of providing valid consent, they should be able to freely decide whether to consent or refuse the medical treatment and be shielded from opposing views from their parents which blatantly impede their rights.
This is without a doubt a very complex and controversial area of law. The debate is based around the concepts of autonomy and paternalism and whether these minors have the necessary knowledge to have full bodily autonomy, even if that may result in serious harm or death. Given that these mature minors are close to the age of majority, one is forced to realise that their beliefs and awareness will not likely drastically change in the weeks or months between being held incapable of making these decisions and becoming an adult. As I have outlined above, I believe if the courts properly take the elements of the child’s age, maturity level and understanding of the topic into account, then they will find that a child with the capacity to consent to medical treatment clearly has the capacity to refuse said treatment.
Bibiliography
Case Law
AC v Manitoba (Director of Child and Family Services) [2009] Supreme Court of Canada 30.
Airedale NHS Trust v Bland [1993] 1 All ER 821.
Csoma v Romania, App 8759/05 (European Court of Human Rights, 11 December 2012).
DL v A Local Authority [2012] EWCA Civ 253.
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
Heart of England NHS Foundation Trust v JB [2014] EWHC 342.
Hewer v Bryant [1970] 1 QB 357.
R (on the application of Axon) v Secretary of State for Health [2006] EWHC 37.
Re E [1993] 1 FLR 386.
Re K, W and H [1993] 1 FLR 854.
Re P [2014] EWHC 1650.
Re R [1992] Fam. 11.
Re W [1993] Fam. 64.
Re X [2014] EWHC 1871.
Schloendorff v Society of New York Hospital (1914) 105 North Eastern 92.
Slater v Baker and Stapleton (1767) 95 ER 850.
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