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November 14, 2024
Consent denotes the granting of permission or agreement for an occurrence. According to medical legislation, legal consent is an essential component of any treatment, safeguarding both patients and healthcare providers. In the second category, valid permission serves as a defense in instances when a claim is made under criminal accusations of battery or assault, or against civil claims of trespass involving another person. The choices surrounding medical care might be rather challenging. This is especially applicable in situations when persons confront a severe decision between preserving and extending a person's life, although with challenging side effects or a breach of stringent religious convictions.
The term "Gillick competency" refers to a minor's capacity to make independent decisions that are legally recognized. It is essential to analyze how the courts address cases involving child decision-makers, balancing the preferences of guardians or parents, and ultimately rendering a decision that prioritizes one viewpoint over the other.
To circumvent the ramifications of the Gillick decision, the courts have perverted ethics and rationality. There is a paucity of substantiated grounds for not treating teenagers as adults regarding their ability to agree to or refuse medical care. Nevertheless, this may not be accurate. The following sections critically assess this statement, focusing specifically on the rejection and consent to medical treatment.
It is a well recognized notion that prior to any person being treated as a patient by a doctor, healthcare provider, or physician, the patient's permission must be secured. Adults possess the autonomous capacity to provide permission for receiving treatment or to decline it entirely, since they are considered to have the requisite competence to make decisions in their best interest. However, regarding the children, the issue gets contentious.
The main principles stipulate that the physician must ascertain the child's legal competence when getting permission. The youngster must possess the ability to provide permission for any treatment. According to the legislation, all persons aged 16 and above are presumed to possess the requisite ability to agree to treatment, unless proof is shown to the contrary. If the kid is deemed legally incompetent, permission must be acquired from a person with parental responsibility, save in emergency situations. Emergency care may be administered without permission to save the life of a minor or to avert significant health deterioration.
The idea that individuals possess an unequivocal right to the integrity of their bodies is supported by a substantial body of case law. According to section 8 of the Family Law Reform Act, 1969, adolescents or minors aged 16 to 18 possess the authority to agree to their own treatment. Additionally, the Gillick principle has been established by legislation, granting minors under the age of sixteen the autonomy to make their own choices.
In the matter of Gillick v West Norfolk and Wisbech AHA, Mrs. Gillick had five daughters, each under the age of sixteen. She pursued a statement stating that it would be unlawful for a doctor to administer contraceptives to girls without parental permission or knowledge. In this instance, the House of Lords determined that the declaration could not be issued, and so, it had to be denied.
Lord Fraser saw it as almost ludicrous to propose that a 15-year-old boy or girl could not provide valid consent. He provided an example of granting permission for a medical examination related to a fractured arm or a minor harm to his body. Although it is customary to get parental approval in such cases, it may not be readily accessible at that time. Assuming the child, who is the patient, possesses the ability to comprehend the proposed treatment and articulate their preferences, regardless of gender, there is no justifiable basis for asserting that the patient lacks the capacity to express their wishes effectively and validly, nor to grant the medical professional permission to administer the recommended treatment or conduct the advised examination.
The rationale behind this was that a minor girl, having reached the age of 16, has the capacity to make or enter into a contract, in accordance with the established parameters. A minor may initiate or be subjected to legal action and is capable of providing sworn testimony as evidence. Lord Fraser said that he was not inclined to conclude that a girl under the age of 16 had the capacity to provide legitimate consent for treatment or advice about contraceptives solely based on her age.
He established certain criteria, now widely known as the Fraser recommendations. He believed it was justified for the doctor to proceed without the parents' knowledge or consent, provided the doctor determined that the girl, despite being under 16, could comprehend the advice given. The doctor was unable to persuade her to inform her parents or to disclose the matter herself regarding her inquiry about contraceptives. It was highly probable that she would continue to engage in sexual intercourse, regardless of receiving contraceptive treatment. Her mental and physical health were likely to deteriorate unless she received guidance or treatment concerning contraceptives. Ultimately, it was in her best interest for the doctor to provide treatment or advice regarding contraceptives without parental consent.
Several ethical considerations supersede the court's decision to permit a Gillick competent child's refusal of medical treatment, contrasting with those advocating for the legal acceptance of the child's choice. When a competent adult encounters such a dilemma, it becomes the legal obligation of medical providers to honor that option.
In Re T, Donaldson MR affirmed the established notion that persons had an independent right to bodily integrity. An adult patient without mental impairment have the unequivocal right to either reject or accept to treatment. This option is not confined to mere sensibility. This exists regardless of whether the reasons for making the specific decision are illogical, unknown, non-existent, or reasonable. This specific technique was subsequently supported in the examples of Re B and Re MB.
The domestic rules provide that this specific privilege is acquired at reaching the age of 18. Upon reaching the age of majority, a person is considered capable of making choices, regardless of their maturity or life experience. The choices about medical care are made by a person recognized as having parental responsibility. This obligation is delineated in section 3(1) of the Children Act 1989. This section delineates the duty as one where all authorities, authority, duties, rights, and obligations, according to the law, reside with the child's parent concerning the child's property and welfare. Thus, under the idea of parental responsibility, choices about the child's care or healthcare are included.
The Gillick case established that when a kid reaches a level of maturity judged enough to comprehend therapy, they possess the autonomy to make their own choices. This is also widely known as Gillick competence. However, other judgments have determined differently. This has led to the assertion that teenage autonomy is a fallacy, suggesting that young persons possess the right to make their own medical choices. Although Gillick said that a youngster who has reached the requisite age may make their own choices, there has been a rhetorical failure in recognizing a minor's ability to autonomously refuse life-sustaining care.
In the matter of Re R (A Minor) (Wardship: Consent to Medical Treatment), a 15-year-old girl was afflicted with an urgent psychological disorder. The youngster was unable to comprehend that she needed medicine to address her illness. Consequently, it was determined that her competence was insufficient, and so, she was treated against her consent. The choice seems to align with Gillick's at first look, owing to her diminished mental ability. Lord Donaldson remarked that even if R has the necessary comprehension, the girl, as a Gillick competent minor, lacks the right to refuse treatment; she can only consent to it. The assent was seen analogous to a key that may open the door to treatment, so making the doctor's activities legitimate, albeit not mandatory. Therefore, upon achieving competence as defined by Gillick, the individual becomes the custodian of the key. The fundamental problem that requires recognition is that Gillick competence cannot be superseded by a parent. When a refusal to agree is presented about the treatment necessary for the minor's best interest, it may be necessary to apply to the High Court to override that denial.
In delivering the subsequent ruling in Re W (A Minor) (Medical Treatment: Court’s Jurisdiction), Lord Donaldson adhered to the prior dicta, consistent with this specific rationale. The sixteen-year-old girl was under the supervision of local authorities and afflicted from anorexia nervosa. The Local Authority sought clarification on the legality of transferring her to a specialized unit, contrary to her preferences, for the purpose of force-feeding. Upon reaching the age of 16, the girl was eligible to provide permission under section 8 of the Family Law Reform Act 1969; however, she declined to do so. The court determined that, according to section 8(3), the concurrent parental authority was maintained by law, pertaining to consent for treatment, and to the court's inherent rights to safeguard the minor's welfare. For the purpose of legal consistency, the prior ruling of Lord Donaldson could not be adhered to uniformly.
The rationale of Lord Donaldson is understandable in the context of the principles of the Children Act 1989. Therefore, the primary concern according to section 1 of this act is the welfare of the minor. Consequently, the court consistently adjudicated in favor of safeguarding life. It involves reconciling the right to autonomy with the sanctity of life. Consequently, concerning a minor's right to autonomy, the sanctity of life will always take precedence in judicial decisions. Consequently, regarding consistency or legal clarity, the rulings in Re W and Re R are incongruous with the judgment in Gillick. Evidence indicates that none of these patients would have met the criteria established by Gillick. It is essential for adults to comprehend the ramifications of the suggested therapy and to possess the maturity necessary to evaluate it judiciously. The concept established in Gillick remains fundamentally unchanged; hence, the minors in the aforementioned circumstances would be unable to fulfill these criteria.
Although Gillick represents a milestone ruling, it empowers competent children under the age of sixteen, with enough intellect and awareness, to make decisions about their future options. The extent of jurisdiction in this decision was ambiguous, resulting in limitations in following instances, as previously noted. The issues arise from both intrinsic restrictions and later court interpretations, particularly in some situations where a competent minor's authority to decline or reject life-sustaining treatment has been curtailed. Although the decision was intended to address specific difficulties, it has been used in a broader context and has been associated with denial instances.
Following the Human Rights Act of 1998, the applicability of the Gillick competence test has been affirmed in the case of R (Axon) v Secretary of State for Health. However, the use and interpretation of this test, in a broader context, including both medical and non-medical domains, continue to exhibit symptoms of strain. The broader context encompasses the instances of Mabon v Mabon and Re Roddy (A Child) (Identification: Restriction on Publication). The pressure is apparent from the rejection of life-sustaining therapy. Such instances undermine the importance of the autonomy suggested in the Gillick case, which was upheld by the Children Act 1989. Two distinct justifications have been established for overcoming a minor's rejection of treatment, as seen by the cases of Re R and Re W.
An uncertainty exists about the link between authority and competence. For adults, defined as those who have reached the age of adulthood, the legal framework regarding consent is gradually evolving from a mechanism for transferring responsibility to a method of safeguarding patient autonomy. The idea of Gillick competence, coupled with the subsequent court analysis, serves as an impediment to the procedure of a child's assent. The minors may only endorse judgments that others consider to be in their best interest. This stance is significantly at odds with the rights of children. The moral rights of minors are not readily delineated. Rather than delineating the pertinent responsibilities of adults, the rights are considered the most effective means of safeguarding children. When requests are articulated as rights claims, it poses difficulties for people. others rights are exclusive to children, others to adults, while others are jointly held by both groups. The Gillick test is ineffective in determining the specific situations in which the rights of children are considered equivalent to those of adults.
Adults have been granted the autonomy to make their own medical decisions and choose what is in their best interest. However, children are not considered to possess the ability to make their own decisions. It is sometimes argued that children possess the capacity to make their own medical choices in appropriate circumstances, as shown in the Gillick case. This case established that if an individual's ability is shown, a person under the age of sixteen may choose to decline medical care.
Nevertheless, this case has not achieved the level of success it warranted. It has not succeeded in becoming the favored option in such instances owing to its deficiencies. Ambiguities have arisen in the later interpretation of this case, compounded by the failure to accept its central idea. Consequently, although this case provided the minors with a pivotal ruling, it could not be applied to other minors in subsequent cases, exemplified by Re R and Re W. These cases illustrate that adolescents cannot be regarded as adults in consenting to medical treatment due to the deficiencies in Gillick, and, to some degree, they cannot refuse such treatment if it is not considered to be in their best interest. Although it may be said that teenagers lack valid justifications for refusing or consenting to therapy, this assertion is inaccurate. The absence of genuine expertise, coupled with the best interest, constitutes one of the valid justifications in this context.
Gillick v West Norfolk and Wisbech AHA [1986] AC 112
Mabon v Mabon [2005] EWCA Civ 634
R (Axon) v Secretary of State for Health [2006] EWHC 37
Re B [2002] 2 All ER 449
Re MB [1997] 2 FLR 426
Re R (A Minor) (Wardship: Consent to Medical Treatment) [1992] Fam 11, [1992] 1 FLR 190, [1991] 4 All ER 177 CA
Re Roddy (A Child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam)
Re T [1993] Fam 95 at 103
Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64, [1993] 1 FLR 1, [1992] 4 All ER 627
Children Act, 1989
Family Law Reform Act, 1969
Human Rights Act, 1998
Brazier M, and Cave E, Medicine, Patients and the Law (6th edn, Oxford University Press 2016)
Harris-Short S, Miles J, and George R, Family Law: Text, Cases, and Materials (3rd edn, Oxford University Press 2015)
Herring J, Medical Law and Ethics (5th edn, Oxford University Press 2014)
Lynch J, Consent to Treatment (Radcliffe Publishing 2011)
Maclean A, Autonomy, Informed Consent and Medical Law: A Relational Challenge (Cambridge University Press 2009)
Richardson G, Partridge I, and Barrett J, Child and Adolescent Mental Health Services: An Operational Handbook (2nd edn, RCPsych Publications 2010)
Samanta J, and Samanta A, Medical Law (Palgrave Macmillan 2011)
Cave E, 'Goodbye Gillick? Identifying and resolving problems with the concept of child competence.’ (2014) 34 (1) Legal studies 103
Trowse P, ‘Refusal of Medical Treatment – A Child’s Prerogative?’ (2010) 10 QUTLJJ
British and Irish Legal Information Institute, ‘Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 (17 October 1985)’ (2017) <https://www.bailii.org/uk/cases/UKHL/1985/7.html> accessed 09 May 2017
E-Law Resources, ‘Gillick v West Norfolk & Wisbeck Area Health Authority [1986] AC 112 House of Lords’ (2017) <https://e-lawresources.co.uk/cases/Gillick-v-West-Norfolk.php> accessed 09 May 2017
Hayhoe B, ‘Decision Making in Children and Young People: Gillick Competent?’ (Sage Journals, 11 December 2008) <https://journals.sagepub.com/doi/abs/10.1093/innovait/inn091?journalCode=inoa> accessed 09 May 2017
HCR, ‘Gillick v West Norfolk and Wisbech Area Health Authority and another’ (2017) <https://www.hrcr.org/safrica/childrens_rights/Gillick_WestNorfolk.htm> accessed 09 May 2017
McNary A, ‘Consent to Treatment of Minors’ (NCBI, 2014) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4008301/> accessed 09 May 2017
Swarb, ‘Gillick -v- West Norfolk And Wisbech Area Health Authority and Department of Health and Social Security’ (2017) <https://www.swarb.co.uk/c/hl/1985gillick.shtml> accessed 09 May 2017
Tidy C, ‘Consent to Treatment in Children (Mental Capacity and Mental Health Legislation)’ (Patient, 24 November 2015) <https://patient.info/doctor/consent-to-treatment-in-children-mental-capacity-and-mental-health-legislation> accessed 09 May 2017
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