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In the U.K., children can't just say no.

Although children in England do not reach majority until at least the age of eighteen, the law has for almost twenty-five years been moving toward empowering even quite young children in the arena of health care. As a result, children of sixteen or seventeen, and even some under the age of sixteen, have been treated as adults vis-a-vis medical care. All this may have changed, however, as the result of a recent decision regarding the absence of legal right of a sixteen-year-old suffering from anorexia to refuse one form of medical treatment while consenting to another.

As long ago as 1969 the omnibus Family Law Reform Act declared ([unkeyable]8.1) that consent to medical treatment given by a minor of sixteen "shall be as effective as it would be if he were of full age," and that in such cases parental consent need not be obtained. Indeed, although the common law position of those under sixteen remained uncertain, section 8.3 of the act appeared to consider that consent by such younger children could also be valid, at least in certain cases, such as confidential access to contraception.

This view of children's legal rights appeared to have been strengthened in Gillick v. West Norfolk & Wisbech Area Health Authority (1985), where the House of Lords ruling declared that "parental responsibility diminishes as the child acquires sufficient understanding to make his own decisions and that "at Common Law a child of sufficient intelligence and understanding could consent to treatment, notwithstanding the absence of the parents' consent." This judgment expressly declared that a doctor might provide contraception to a minor under sixteen with or without her parents' consent "if the prescription is the bona fide exercise of his clinical judgment as to what is best for his patient's health." As a result, the Department of Health's Guidelines for Ethics Committees (1991) holds that parental consent cannot override a competent child's refusal of consent. Similarly, since 1984 the British Medical Association's Philosphy & Practice of Medical Ethics (1988) advises that physicians may provide contraception to mentally mature women under sixteen without parental notification or consent if that clinically serves the patient's best interest.

Since Gillick, the Children's Act (1989) has emphasized the importance of all parties (including parents, professionals, and local authorities), paying attention to children's views, even the views of the very young (including the pre-school) child. More recently still, the Access to Health Records Act (1990) follows Gillick closely in allowing children under sixteen in principle to gain access to their medical records.

Profound doubt has now been cast on this steady development of the legal rights of minors in health care by a recent ruling of the Court of Appeal, Re J (a minor) (medical treatment), in a judgment handed down on 10 July 1992.[1] The Court heard that in 1990 at the age of fourteen, J, who had been in the care of local authorities for some six years, was admitted to a residential unit run by a consultant (that is, specialist) psychiatrist for the treatment of anorexia nervosa. In 1991 J had given consent to be fed with a nasogastric tube for a short time, during which treatment her arms were encased in plaster, again with her consent. In May 1992 the local authority obtained a ruling in the High Court allowing it, under the 1989 Children's Act, to transfer J to a hospital specializing in the treatment of eating disorders. J, who was by then sixteen, had refused to consent to such a transfer, preferring to continue receiving treatment in the adolescent unit where she had spent the last two years. In his judgment, Mr. Justice Thorpe ruled that although J was able to make an informed decision concerning her medical treatment, he had the jurisdiction to issue orders that conflicted with her wishes.

In a unanimous decision upholding the High Court judgment, the Court of Appeal found that the Children's Act did indeed provide the local authority with the power to act in J's interest. However, they went far beyond this rather narrow question, moving to deal head on with the issue of whether the courts had the power to override a minor's refusal of medical treatment. Despite concluding that as a matter of medical fact anorexia nervosa was capable of destroying the ability to make an informed choice, the Court did not consider it necessary to deal with the question of whether J was "of sufficient intelligence and understanding [to] consent to treatment," the language of Gillick. Nor did it consider in any detail the Mental Health Act (1983), which provides for the medical treatment of those mentally incapable of giving valid consent. Rather, the Court of Appeal ruled that while the Family Law Reform Act did make the consent of a sixteen- or seventeen-year-old as effective as if he were "full age," the clear purpose of section 8 of the act was to provide those concerned in treatment with a defense against criminal or civil charges. It could not be interpreted as depriving those with parental responsibility of the power to consent. Furthermore, the Court of Appeal ruled that the inherent parens patriae jurisdiction of the courts provided them with the unfettered power to override the refusal of any minor, even one who had attained the age of sixteen, and to authorize doctors to treat minors in accordance with their clinical judgment. To make their opinion even more significant, the Court went on to acknowledge that their ruling in the case of J related to other issues as they might concern minors, including abortion.

No wonder a spokeswoman for the Children's Legal Centre said that "this judgment will leave the medical world in chaos. Parliament will have to step back in." The British Medical Association is currently considering whether it needs to modify its guidelines for doctors.[2]

References

[1.] This case should not be confused with an earlier 1992 decision, In Re J, where the Court of Appeal overturned a High Court order requiring doctors who did not wish to do so to put a severely brain-damaged baby on life-support. See Ross Kessel, "British Judges Cannot Order Doctors to Treat," Hastings Center Report 22, no. 4 (1992): 3-4.

[2.] I am grateful to the Official Solicitor and to the British Medical Association's Department of Medical Ethics for providing me with copies of the Court of Appeal judgments.
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Title Annotation:United Kingdom, children's medical rights
Author:Kessel, Ross
Publication:The Hastings Center Report
Date:Mar 1, 1993
Words:1064
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