The the court and society. This essay
The issue of consent is a vital element for medical treatment. In English law, treatment without valid consent can be seen as battery. Therefore, consent is a defence to battery for healthcare professionals. Competent adults enjoy the ‘absolute right to choose whether to consent, to refuse or to choose a medical treatment over others offered’ . However, when it comes to the law on children and medical decision-making, it is manifestly incoherent, and therefore unjustifiable, that a child may at once enjoy a right to consent to treatment without also having a right to refuse that treatment. It is a very contentious issue for the court and society. This essay aims to explain the law regarding the consent rights of mature minors and assess their rights to refuse medical treatment. In order to demonstrate this, this essay will first explain the law regarding the right in making medical decisions with relevant authorities. It will then further discuss and critically assess the law on consent rights of mature minors is unjustifiable.In 1969, the Family Law Reform Act (FLRA) was introduced and the age of majority was reduced from 21 to 18 . In English Law, a person becomes an adult on his/ her 18th birthday. According to section 8 of the 1969 Act, the consent of a minor who has reached the age of sixteen for medical treatment is as effective as someone who is eighteen. Section 8(3) of the Act states that ” Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had been enacted.” This section was widely discussed by healthcare and legal professionals and was interpreted differently. This section is very vague and ambiguous in many ways. Firstly, to what extent does “medical treatment” in the statute include, medical treatment can be from removing a tooth to donating organs to others. It is also argued that doctors still enjoy the discretionary power to evaluate younger children’s ability to give medical consent without their parents being involved. Furthermore, it is very controversial and has been widely discussed that consent to medical treatment is part of the autonomous choice and the other half of autonomous choice is to not give consent. This seems to imply that children who have reached the age of 16 and are sufficiently mature and intelligent enjoy the right to refuse treatment. However, the common law approach seems to provide minors, particularly under the age of 16 the right to consent medical treatment, but not the power to refuse a treatment. This is illustrated in the case of Gillick1986. In Gillick, the House of Lords was in favour of the Department of Health. The Law Lords agreed that it is unfair for mature minors over the age of 16 to have no control over their personal medical decisions only because of their age. There are two major ruling in the Gillick case. Lord Fraser focused on the welfare of the child and claimed that contraceptive care may be provided to a minor below 16 years old if it is for her best interest to be treated without parental consent. This is due to the minor is very likely to continue having sexual intercourse with or without contraceptive treatment and is very like to suffer physically and mentally without it. In other words, less mature minors should be provided with contraceptive treatment as the more sensible ones will not have sexual intercourse without having contraceptive treatment. “Best interest” often refers to paternalism and Fraser’s guidelines started with autonomy of a minor and ended up to be absolute paternalism. It is often argued that Lord Fraser has expropriated parents’ right over their children’s medical decisions and passed it to doctors. Nevertheless, Lord Scarman favoured a different approach, which is also widely acknowledged as the Gillick Competency test. This test established that a child under 16 is legally competent to give medical consent independently of their parents once the child is sufficiently mature and intelligent to understand the nature of a proposed action. However, it is obscure that what a child needs to achieve to be considered as Gillick competent. This is a very case- specific approach, therefore, more maturity and intelligence is required when the potential outcome of a medical decision is more severe. For instance, a child may have sufficient capability of giving consent for a dental checkup, but would not be capable to consent to cardiac surgery. On the contrary, a child who has been suffering from chronic kidney disease may be mature and intelligent enough to consent to a kidney transplant. Thus, O’Brien(2012) argued that the concept of Gillick competence is advisable as it is a case by case situation on what it is to be “sufficiently mature and intelligent”. Nonetheless, it is debatable and can be plausibly assumed that having the right to consent includes the right to refuse consent. Lord Scarman’s obiter dictum in Gillick 1986 showed affirmation to this assumption. He said that “…. the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.” In other words, once a child is deemed Gillick competent, the parents lose the right to veto treatment that a child has already given consent to and at the same time not allowed to give consent to a treatment on behalf of a child who is reluctant to the medical decision. However, this was interpreted differently in subsequent cases.Gillick Competence Test on refusal seems to contrast with Lord Donaldson’s dicta suggested in Re R 1991 and Re W 1992. In Re R, it was held that the 15-year-old girl was lack of Gillick competency. The judges were unanimous on the view that both minors’ and their parents’ refusal for treatment can be overruled by the court when practising its wardship jurisdiction. Lord Donaldson reinterpreted Lord Scarman’s words and claimed that consent and refusal are two different concepts. Lord Donaldson suggested that when a Gillick competent minor consents to a treatment, his parents are unable to veto that medical decision. Nonetheless, if the same child refuses a treatment, his parents still remain the right to provide proxy consent on behalf of the unwilling child . Lord Donaldson then further explained his interpretation by using the metaphor of a key and lock, which is also known as the key holder anology. He claimed that consent to treatment is a lock and a variety of people hold the key to unlock it. This encompasses a child that is sufficiently mature and intelligent and is deemed Gillick competent, her parents, as well as the court can become keyholders. Lord Donaldson’s infamous metaphor was criticized that he ignored the fact that a key can lock and unlock. Thus, this was further revised and advanced by Lord Donaldson in Re W 1992 . W was 16 years old, thus empowered the right to give medical consent under section 8(1) of the FLRA 1969. However, she was held incompetent due to her anorexia. Lord Donaldson drew the distinction between consent and refusal and argued that one might have the capacity to consent but not sufficient enough to refuse. He then introduced the analogy of likening consent to a flak jacket that is used to avoid litigations and was criticized to have weakened patient autonomy. From the reasoning in both R and W, it can be stated that FLRA 1969 and Gillick endowed mature minors with the right to consent medical treatment that permit medical professionals to proceed treatments without seeking for further consent from parents. This does not indicate that parents’ right to consent is gone but it coexists with the child’s and court’s right to give consent to a treatment. In other words, when a minor refuses a treatment, either the parents’ or court’s consent will be sufficiently effective, especially in life-threatening cases. This is evident from the judgment in a more recent case of a minor refusing treatment, Re P 2014 . Baker J held that the court must have the child’s wellbeing as its paramount consideration, thus, lawful to give the 17-year-old and capable boy treatment even he refused it. In refusal cases including Re E 1993 , Re S 1994 , Re L 1998 and Re JA 2014 , the courts seemed to be reluctant to grant the mature minors the right to refuse treatment on the ground of ‘not fully understood’ when they decided to refuse the treatments. Nevertheless, in 2008, the situation of Hannah Jones proved that hospitals do respect a child’s decision to refuse treatment. Hannah was 13 years old when she successfully convinced the hospital to withdraw her application for order requiring her to undergo heart transplant. In Re E 1993, albeit E is mature and smart, the court held that this matter is outside of the boy’s understanding when he refused blood transfusion for life-threatening leukemia due to his religious belief, thus, incompetent. It is often argued that the threshold to be considered as competent is preposterously high and has been manipulated by adults to prevent minors to make autonomous decisions of their personal medical treatment. However, it is claimed that Lord Donaldson’s approach is to protect the wellbeing of the minors by preventing them to make medical decisions that will cause irreparable harm or death. This concept was backed by Lowe and Juss(1993) assuming that doctors have the professional knowledge and will make decisions based on the best interest of the patients. It can therefore be argued that the law is justifiable on this matter. Nonetheless, Eekelaar(1993) highlights the point that Lord Donaldson’s primary concern is to protect doctors from litigations. In addition, Harris(2003) said that being competent to give consent implies understanding the nature of the proposed treatment including the consequences of refusing the treatment. Hence, as a matter of principle, a child who achieved sufficient understanding to give consent should also enjoy a parallel right to refuse that treatment. Moreover, it is debatable that the right to refuse unwanted treatment is more significant than the right to consent it. Fortin supports the claim by revealing the practical consequences of forcing a fully-grown adolescent to receive a treatment. As a result, the mature minor might suffer from physical and mental injuries. This can be illustrated on a mentally healthy teenager being accused of having psychiatric illness and is coercively held in a mental hospital and be treated. Furthermore, Bainham(1992) suggested that if a minor has demonstrated the same level of maturity and intelligence required from a competent adult; is well-explained about the nature of the proposed treatment; and is acting voluntarily, then her reasons for making the decision should respected, even though it is based on religious beliefs. For example, in the case of Re E, the minor should be granted the right to refuse treatment as he was suggested to be intelligent, mature and sufficiently understood his illness and the consequences of not having the treatment. Whilst the his refusal of consent to the treatment was respected when he turned 18 and died as a result, it is arguable that the minor’s refusal of treatment should be respected. This is mainly because, due to his religious belief, he died guilty believing that he had done a sinful and blasphemous act. This provides evidence that the legal position regarding mature minors’ autonomous right to consent and refuse medical treatment is unjust. It can therefore be argued that the law in this area is unjustifiable. In conclusion, this is essay has attempted to demonstrate older children’s rights to make medical decisions independently in both giving consent and refusing treatment. While the law is often criticized for not allowing children to refuse medical treatment, there are researches that support the hypothesis that the law regarding this children’s right in making medical decision has been unjustifiable.