An Analysis of a Child's Capacity to Consent to Medical Treatment
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Since graduating from Durham, I have begun studying for a Masters in Business Management and plan to sit the NI Law Institute exam this year, hoping to complete my solicitor’s apprenticeship. Through this Masters, I have become involved in different platforms promoting human rights in business, rights having been a focus of my undergraduate dissertation. Having struggled to decide what topic to write my dissertation on out of so many options, I chose the law of consent to medical treatment. While I had yet to study medical ethics, Ian McEwan’s ‘The Children Act’ and the media debates raging in the wake of the Charlie Gard and Alfie Evans cases raised a lot of issues for me. The question of children’s capacity to consent (and who can consent for the child) is a multifaceted issue without a clear-cut answer, something I discovered the more I researched it! Thankfully, there has been lots of academic discussion on this area and both Professors Shaun Pattinson and Emma Cave are active in this discussion, providing me with new angles and ideas on this topic. In writing my dissertation, I did often get lost in the distinctions between capacity and competency and struggled with the amount of caselaw that is relevant to interpreting Gillick. Additionally, I found that the more I read, the more complex it became to make my argument and propose reform of the law, especially when no one answer felt like the ideal one! However, I did come to conclude that some qualification of the parental and judicial powers of intervention is necessary to defend the rights of the child in determining their own treatment.
-Eadaoin Macrandal, Author
Introduction
Consent is recognised to be the cornerstone of all medical treatment. It is the expression of “a patient’s right to make his own decision, seen as a basic human right protected by common law.” It is recognised as the transformative element that allows medical treatment to be distinguished from bodily invasion, and therefore, stand outside the realm of criminal law.
For consent to be valid at law, it must be given voluntarily, with an understanding of the nature of the related treatment, and by one who has the capacity to give it. One has capacity where they legally possess the authority to make the relevant decision. Generally, this decision-making authority is granted where an individual is competent, in that they possess the cognitive faculties to make that decision, and the functional ability to exercise those faculties (hereafter cognitive-functional ability). Tying capacity to competence respects the autonomy of the individual, and so any limitations placed upon the capacity of those who have competence must be “very compelling”.
Yet, an exception to this exists in the context of the competent child, whose autonomy is arguably undercut; their capacity is not reflective of their competence. This, it is submitted, is a consequence of unclear law, most strikingly seen in the context of life-saving (or life-prolonging) treatment. Despite the gravity of such decisions, the capacity of those under 16 to decide upon their own medical treatment is ungoverned by legislation, supposedly guided instead by Gillick. Gillick, in linking the child’s capacity to make a decision to their competence to, demonstrates great potential for listening to the Gillick-competent child. However, this potential has since been curtailed. Judicial reluctance to respect the autonomy rights of the Gillick-competent child is clear, overwhelmed instead by paternalistic concerns for the child’s welfare.
Yet, in the face of an increasingly pro-autonomy judicial approach to adults, and a legal shift in the form of the Human Rights Act 1998 and cases such as Axon, criticism of the current state of the law regarding the Gillick-competent child has been renewed. In light of this, this dissertation seeks to determine to what extent the law listens to the Gillick-competent child by analysing when capacity to consent is, or is not, granted.
To do so, Gillick itself will be analysed, and criticisms of it outlined. Later case-law will then be analysed to determine the current state of the law. This will consider lacunae exposed by the so-called “retreat cases” in regard to the competent child, with a focus upon the threshold of understanding that they are held to, and the weight that the child’s best interests has upon the judiciary.
Following this, Chapter II will debate to what extent the current approach to capacity concedes concurrent rights to consent and refuse, as it is submitted that it should. The rights of both parents and the court to overrule the Gillick-competent child’s refusal will then be considered and challenged in Chapter III.
Chapter IV will conclude that reform is necessary to validate the child’s autonomy and best ensure that the law listens to the Gillick-competent child. The power of the parent’s proxy-consent must be curtailed, and the court’s power more strictly policed. The ambiguities in determining competence and granting capacity need to be addressed. It will be submitted that this reform, through incorporating elements of the Mental Capacity Act 2005 modified by a clarified common law test, would give the Gillick-competent child the loudest possible voice in the decision-making process.
