Law Concerning the Capacity of Young People - Essay Example

Critically evaluate the law concerning the capa of young people (under 18) to consent to or refuse medical treatment. Introduction A person who has not completed the age of eighteen is a child as defined by section 105 (1) of the Children Act 1989.1 Though it implies that minor children under 18 have no right to consent or refuse medical treatment, the Family Law Reforms Act 1969 empowers a child to do so if the child has completed the age of sixteen as per section 8 which says that it would be considered a trespass to that person if any surgical, medical or dental treatment is given to that person without his consent. This provision has effectively established that parental consent is not necessary in such cases. The treatment mentioned above includes any diagnostic procedures and anaesthetic administration ancillary to the main treatment. As per section 12 of the Act, an infant can also be described as a minor.2 However, this right of consent for children over 16 but below 18 is not absolute. As family law is of discretionary nature , all previously decided cases need not constitute precedents to be binding on judges who are expected to decide by giving weightage to cases independently for the unique factors surrounding them. It does not imply, however, that case law comprises of unconnected decisions since judges functioning with wide discretion develop particular “patterns, rules of thumb and general principles.” Therefore, there are limits within which judges can firm up their discretion. Thus when there is no guidance from the legislature, courts have assumed to act giving due regard to “fair outcome and “best interests of the child.3 Courts also draw guidance from the international treaties even though some of them may not have been adopted in domestic law. Thus, the U.N. Convention on the Rights of the Child, 1989 (UNRC) which the European Court of Human Rights (ECHR) also consults for interpretation of article 8 of the ECHR.4 that governs the rights of children. Parekh5 points out that law relating to the child’s consent is not yet clear as far as “best interests of the child” is concerned. He quotes the authors Kennedy and Grub 6 as having classified the child development into three stages of early childhood, Gillick competent child and the child of 16-18 years of age. Consent by children under 16 years of age is not clear as it is governed by the common law. Consent is valid one only if given by persons having capacity to decide. Hence, during the first stage of development of childhood, parent alone can consent for medical or surgical treatment. In the second stage of Gillick competent child which case will be discussed later, a child can give informed consent if the child is capable of understanding and balancing the decision. The age of the Gillick competent child depends on the child’s ability to comprehend and the nature of the treatment proposed. The third stage of 16-18 years of age, as seen earlier, empowers a child to give consent as if he/she were full of age. The subsection 3 the section 8 of the Children’s Act 1989 states “nothing in this section shall be construed as making ineffective any consent which would have been effective had the section not been enacted.” This only means that parents can always consent for the child if the child happens to refuse treatment. Thus according to Montgomery7, there is no way a child or parent can refuse treatment unlike in the case of an adult and courts have also been not allowing the refusal either by the child or the parent if the courts consider that the treatment is in the best interests of the child. In view of the above position, it would be clear that a child really has no autonomy as opined in Re M8. Parekh9 argues, therefore, that law has created a false notion of child autonomy and a false respect for the child’s rights by only allowing the child to consent and not to refuse which Parekh questions whether it is the form of medical paternalism. This is in spite of the position taken in the European Charter for Children in Hospitals providing for the right of informed participation in decision making relating to the children’s health care. It states “Every child shall be protected from unnecessary medical treatment and investigation” 10 which the English law has not honoured 11 although it can be argued that family law reform act and Gillick competent concept were not to burden the children with complete autonomy but only to obtain their cooperation while giving them appropriate treatment. McHae et al 12 says that no child becomes suddenly competent after a certain age. Brazier13 is of the opinion that children do not possess mental capacity until the age of 12 and they come to possess very rarely by the age of 14 and hence the crucial age limit is 14-16 years. Competence does not come with age alone but also on the ability to understand the severity of the medical condition involved. It boils down to the fact that it is only the medical professionals who can decide whether a child is competent enough. It, therefore, is logical to ask that when at some stage a child is treated competent to give consent, why the same child is not competent to refuse.14 While majority of the case law has taken paternalistic decisions assuming that child lacks capacity, few of them have overridden the objections of a legally competent child’s objection to the treatment. It is based on the premise that child cannot become overnight wholly autonomous even at the age of 18. It maybe relevant to discuss Gillick 15 case at this point. Mrs Gillick who was the mother of five daughters challenged the circular of the Department of Health and Social Security (DHSS) permitting doctors to prescribe contraceptive pills to girls below 16 years without their parents’ consent or knowledge. The reasoning of the circular is that although parents have the moral responsibility for their children’s upbringing and therefore they are entitled to know what their children do outside their homes, there is no guarantee that the girls would be give given consent by the parents to take contraceptive pills in which case there is the risk of indiscriminate teenage pregnancies which are not in the children’s best interests to let happen. Although Lord Templeman stated that it was an offence as per Sexual Offences Act 1956 for a man to commit sexual intercourse with girls under 16, the Hose of Lords upheld the circular of the DHSS challenged by Gillick. It is argued that when it comes to capacity to understand in terms legal, moral and ethical grounds, even the adults would fail the test of competence.16 However the position was reversed in Re M17 when the court was faced with the child’s refusal for life saving medical treatment. Many who had said no, later (after recovery) have thanked the doctors for having rejected their refusal.18 In Re E19, a minor patient who as a Jehovah witness refused to have blood transfusion, the court held that When making this decision I have to take account of the fact that teenagers often express views with vehemence and conviction of the youth! . . . all remember the convictions we have loudly proclaimed . . . I respect this boy’s faith . . . but I cannot discount that he may in later years suffer some diminution in his convictions. However, the same patient’s refusal on his attaining the age 18 could not be turned down and the patient died.20 This raises questions on the so called convictions of the youth. In another case Re C21, when the doctors decided in the best interests of the child to amputate his gangrenous foot, C who was also a schizophrenia patient but a competent, brought the court order upholding his refusal for amputation. It turned out that the patient got cured gradually of his gangrene. This intensifies the question on the validity of the concept of the “best interests of the child”. Another argument is that by saving the patient’s life on the basis of the doctor’s opinion, the patient is actually given a second chance to decide by temporarily easing his illness and tension of the limited time for a decision.22 Tracing the history of informed consent leading to patient autonomy shows that it was made a pre-requisite in view of the legal cases against doctors for battery and negligence during the mid-20th century and in the light of the Nuremberg trials.23. However with the recognition of human rights and right to information, adolescents have been trying to gain greater autonomy even though the trend of case law is towards grater paternalistic tendencies.24 It may be relevant to point out that Mental Health Act 1983 Code of Practice makes parental authority sufficient for treatment of minors regardless competence and age thresholds although it is in conflict with human rights theory.25 Thus, a 15 year old mental patient with fluctuating mental capacity, otherwise a Gillick competent, was not considered competent by the appeal court even when lucid26. Similarly in the case of a 16-year old girl suffering from anorexia nervosa, the Appeal Court held that Family Law Reforms Act 1969 did not invalidate parent’s right to consent on child’s behalf.27 Lord Donaldson justified the decision stating that the disease reduced the Gillick competent minor’s capacity to make proper decision. Court has not been always in favour of turning down the refusal to treatment. Where there is a clear medical evidence that continuation of treatment for a terminally ill child is not in the best interests of the child, court should not allow the treatment to continue even though the parent is against the withdrawal as held in Re C (a minor)28. Though parents’ view should be patiently heard, it cannot override court’s view of the child’s best interests 29 as held in the case of a terminally ill child where it was decided not to resuscitate the child in the event of a cardiac failure. This did not amount to breach of child’s right of life under the Convention for Protection of Human Rights and Fundamental Freedoms commonly referred to as European Convention on Human Rights.30 Conversely, the doctors’ disregarding of mother’s refusal to her child’s treatment has not been held to be a violation of human right in Glass v United Kingdom (2004)31. In Portsmouth NHS Trust v Wyat (2004)32, the hospital had to decide to refrain from giving aggressive treatment to baby who was terminally and seriously ill. Even though the parent kept on appealing pointing out some improvements in the child’s condition, the court held that parental wishes could be accommodated only as long as professional judgement and conscience would permit.33 In Re L (medical treatment: benefit)34, the court held that best interest test alone would be the guiding factor for continuation or otherwise of aggressive treatment for seriously ill baby. In R (Axon) v Secretary of State for Health35 of 2006, issues similar to Gillick arose sequel to the State’s re-issuance of the circular as a fresh guidance challenged in Gillick case. Mrs Axon, the mother challenged it on the ground that interfered with her responsibilities as a parent in her capacity to advise her daughters regarding their pregnancy. However the court held in favour of rights and autonomy of mature minors. This particular issue is of importance because of the fact that with young people in Britain being sexually active even before they reach the age of 16 without using contraceptives, almost 8,000 girls under 16 conceive every year.36. However it does not mean this Gillick competence is cast in stone to apply in all cases. Courts have been flexible enough to reverse the Gillick competence when faced with the question of refusal of treatment by children under 16.37 However this Axon’s case only touches upon the respect for confidentiality, rights and autonomy of mature minors. Discussion and Conclusion This critical evaluation is limited to the capacity of young people under 18 to consent or otherwise medical treatment sought to be given to them. Most of the arguments of the protagonists revolve around Gillick decision where the Lord Fraser (hence also Fraser competency) gave the concept of Gillick competence by which children under 16 are held to be competent if they are able to understand the issues involved and their gravity. Any argument holding on to Gillick competency is flawed because the issue involved is a social one and parallels should not be drawn for medical treatment conditions. Giving the girls contraceptive pills is not a treatment for a medical condition but a preventive measure against conceiving. The Children’s Act is concerned with not only medical treatment of minors but also various others issues that involve children under 18. It would be clear from the various decisions that courts have been paternalistic only with regards to the lesser issues involved and not when there is a life threatening condition faced by a child. Courts did not allow the Jehovah witness to die as long as the child was under 18. It is very unfortunate that the court could not prevent the death of the same individual after he turned 18 when he started asserting his right as an adult. At the same time, courts are empowered to resist the refusal of the mentally ill patient who is an adult. The courts have observed that the decision should take into account of the possibility of the disease itself affecting the mental or decision making capacity of the child when the child refuses treatment. It has also been seen that in the extreme cases that the courts have respected the children right to die when extremely ill by approving the withdrawal of artificial life support even if objected to by the parents. Therefore, it is abundantly clear that courts have been impartial throughout and has tried to save the precious lives. Gillick competence should not be a precedent for medical condition. It is altogether a different issue of social importance supported by the latest statistics of 8,000 minor girls in Britain becoming pregnant every year. The arguments in favour of children’s rights justifying their right to refuse medical treatment and die instead are all empty rhetorics and perversions. The courts and the law have been very fair to the children and the existing position relating their right to consent or refuse is perfectly in order. Courts’ tendency has always been positive and they have not approved taking away of their precious lives under the false pretext child autonomy which has its own limits. The courts have not their balance swayed by the empty rhetorics. Bibliography Books Brazier, M., 1992, Medicine, Patients and the Law, 2nd edn. London, UK: Penguin. Harris-Short Sonia and Miles Joanna, 2007, Text, cases and materials: Family, Oxford University Press Law P 7 Kennedy, J. & Grubb, I., 1998, Principles of Medical Law London, UK: Oxford University Press McHale, J., Fox, M. & Murphy, J., 1997, Health Care Law. London, UK: Sweet and Maxwell. Montgomery, J., 2003, Health Care Law, 2nd edn. Oxford, UK: Oxford University Press. Journals Kesel Anthony, 2001, “Feeling the way: childhood mental illness and consent to admission and treatment”, The British Journal of Psychiatry (2001) 179: 384-386 Parekh S.A 2006, “Child consent and the law: an insight and discussion into the law relating to consent and competence”, Child: care, health and development 33, 1 78-82 Shaw, M., 1999, “Treatment Decisions in Young People: The Legal Framework”. London: FOCUS, The Royal College of Psychiatrists Research Unit Taylor Rachel, 2007, “Reversing the retreat from Gillick? R (Axon) v Secretary of State for Health”, Child and Family Law Quarterly, CFam 19 1 (81) Acts and Cases Children Act 1989 (c. 41), retrieved 6 December 2009 Family Law Reform Act 1969, CHAPTER 46, retrieved 6 December 2009 A National Health Service Trust v D [2000] 2 FCR 577, [2000] 2 FLR 677 Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112 (HL) (Lord Fraser) 112 Glass v United Kingdom [2004] 1 FCR 553, [2004] 1 FLR 1019, ECtHR. Portsmouth NHS Trust v Wyatt [2004] EWHC 2247 (Fam), [2005] 1 FLR 21 R (Axon) v Secretary of State for Health [2006] EWHC 37 (Admin), [2006] 2 WLR 1130 Re M [1999] 2 FLR 1097 (Johnson J.) 1098 Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 Flr 386, 393 Re C (ADULT: REFUSAL OF TREATMENT) [1994] 1 WLR 290 Re C (a minor) (medical treatment) [1998] 1 FCR 1, [1998] 1 FLR 384. Re: R (A minor) (Wardship: Medical Treatment) (1991) 4, All ER 177, CA. Re L (medical treatment: benefit) [2004] EWHC 2713 (Fam), [2005] 1 FLR 491 Re: W (A minor) (Wardship: Medical Treatment) (1992) 4, All ER 627, CA. Others European Association for Children in Hospitals (1988) European Charter for Children in Hospital Leiden, the Netherlands: EACH. Halsburys Laws of England/CHILDREN AND YOUNG PERSONS (VOLUME 5(3) (2008 REISSUE) PARAS 1-742; VOLUME 5(4) (2008 REISSUE) PARAS 743-1433)/1. CHILDHOOD AND LEGAL RELATIONSHIPS/ (1) CHILDHOOD/ (ii) Capacity of Children/A. IN GENERAL/4. Legal consequences of childhood. Ryan, C., 2003, Children’s. Care: Who’s in Charge? Retrieved 6 December 2009. Read More