Essay: English medical law should not prioritise child welfare over the choice of a competent minor

The principles of autonomy can be illustrated by John Stuart Mill, who states that: “Over himself, over his own body and mind, the individual is sovereign.” In medical practice, this means that a competent patient has a right to ‘self-determination’ regarding medical treatment, irrespective of whether his or her choice is deemed to be rational or in their welfare (physical, mental health and happiness). The difficulty arises in the case of mature minors, who under English and Welsh law are defined as people under the age of 18 who attain an adult-level of maturity and understanding. Legal precedent dictates that minors can consent to proposed medical treatment once proved Gillick competent (discussed below) or if deemed to have capacity through statute. However, the refusal of life-saving treatment has generally been deemed by the courts to require a level of competency too high for anyone aged 18 or below. Such contradiction within the law has left academics such as Richard Huxtable demanding for legal reform.
This essay will argue that English medical law should not prioritise children welfare over the choice of a competent minor, specifically inquiring into cases of treatment refusals. I will do this by illustrating how the courts ability to accept a mature minor’s consent but not accept their refusal is not justifiable nor works in conjunction with current national and international legislation. Additionally, this approach supports paternalism which is contrary to key biomedical ethical principles. Moreover, I will look into how the burden of proof when attempting to prove a child is Gillick competency is so great that once proven, that competent child should be able to rule freely over his or her ‘own body and mind’. The evidence will prove that there is a failure to protect children’s rights and thus patient autonomy should not only be sporadically discussed but should push and enable necessary legislative reform.
Does consent equal refusal?
The ability of competent children to consent but not refuse treatment presents the law with uncomfortable inconsistencies in case law and relevant legislation. A competent child should be able to self-determine treatment regardless of the outcome given the definition and essence of autonomy, which is the pinnacle of biomedical ethics as described by Beauchamp and Childress. Section 8(1) of the Family Law Reform Act 1969 allows for children aged sixteen and over to be able to consent to any ‘surgical, medical or dental’ treatment, therefore, negating the necessity for any other form of consent due to competency being presumed. Moreover, The House of Lords in Gillick v West Norfolk and Wisbech AHA decided by a 3:2 majority that minors under sixteen can make medical decisions so long as they attain sufficient understanding of the doctor’s advice and are mature enough to make a responsible decision which promotes their welfare. The cases of Re W and Re R concerned two adolescents who were deemed to lack Gillick competence and thus were unable to refuse treatment. Nevertheless, Lord Donaldson MR extended his judgments to explain that even if they were deemed competent, the courts inherent jurisdiction would prohibit the refusal to consent if it was in the child’s welfare. It was in the case of Re R where he proposed the ‘keyholder’ analogy to further explain his findings. Those with parental responsibility, medical professionals and children have a key that can unlock (accept) treatment but children do not have the ability to lock (refuse) due to their presumed inability to fully comprehend the consequences. This analogy is flawed due to the fact a key cannot be modified to solely lock and unlock and thus, in the same manner, consent is meaningless if it cannot be given and withdrawn. Moreover, a Gillick competent child can consent because he or she is able to understand the information, balance the risks and benefits and come to a voluntary decision (free from coercion). Therefore, it would be hard to not consider consent and refusal, as legally and morally “opposite sides of the same coin”. Suggesting that a child is competent only and when the patient makes the ‘right decision’ imposes an unjust caveat as it was Lord Donaldson himself that suggested in Re T that the law should allow a competent patient to decide regardless of the rationality of the decision.
Why is prioritising choice essential?
Lord Donaldson’s judgment in Re W allows for child welfare to be judged by the medical profession alone. This paternalistic approach therefore emphasises the need for courts to respect a child’s choice in order to protect patient autonomy. He provides that the aim of allowing minors to consent is to provide a ‘flack-jacket’ for medical or dental practioners “from claims for damages for trespass to the person”. This undermines the idea that children have any autonomous rights to begin with as this analogy allows anyone with a ‘key’ to intrude on the individual’s sovereignty. Paternalism in this respect therefore combines a denial of information and covert compulsion.
This covert compulsion is not only unjust but contrary to the European Convention of Human Rights and the United Nations Convention on the Rights for Children (UNCRC) and. R (on the application of Axon) v Secretary of State for Health extended the Gillick judgment by allowing competent minors under sixteen to receive abortions without other ‘key holders’ needing to consent. The minors mother attempted to claim that the decision was a breach of her Article 8 (the right to respect for her family life) right. Silber J however clarified that this is incorrect as once the young person is deemed Gillick competent than his or her autonomy will undermine any Article 8 claim. Similarly, the UNCRC enshrines a move from ‘protection to autonomy, from nurturance to self-determination, from welfare to justice’ as described by Michael Freeman
The phrase ‘welfare to justice’ is importance because it illustrates the consequence of the judiciary focusing on welfare and that is the dismissal of another key biomedical principle: justice. Aristotle claimed that equals shall be treated as equals and therefore all competent patients should be treated as equal regardless of age. Thus, to simply ‘talk’ about autonomy and not legally implement it, is to undermine children’s rights as a whole.
Though adults and children differ, to base lack of competency on a status-based approach is arbitrary and inadequate. Research has found that there is no significant difference in the ability of minors and adults when answering ethical dilemmas. Moreover, the case of Re E concerned a 15-year-old boy who wished to decline blood transfusions due to him being a Jehovah’s Witness. He was deemed by Ward J to have understanding, intelligence and maturity, nevertheless, the court was “far from satisfied that at the age of 15 his will is fully free” and thus his refusal was overridden. When the patient became an adult, he was able to refuse treatment and consequently died, however, it seems trivial to believe that he was incompetent until the day he turned 18. More importantly, though the court’s ruling was considered to be in the child’s best interest it went against the expressed views of a fully intelligent and mature child and required him to forcibly undergo possible ‘distressing and unwanted treatment’.
Can a Gillick competent child equate a competent adult?
The difference between a Gillick competent child and an adult lies in the onus of proof. An adult is presumed competent unless proven otherwise through the Mental Capacity Act 2005. However, to be Gillick competent the child must show maturity by proving the following.
The child must show an ability to understand the impact of his or her decision. This forces the patient to show a complete understanding of the societal, moral and emotional implications of the competent child’s decision is considered by critics as being unfair because it requires mature minors to attain a higher threshold of understanding than most adult who may not even understand the implications but can be autonomous because of their presumed competency.
Furthermore, there must be a complete understanding of the proposed treatment. In order for a child to understand the proposed treatment they must be adequately informed. The GMC guidelines specify that medical professionals “should provide information that is easy to understand and appropriate to their age and maturity” nevertheless case law has proved to show that there is uncertainty about relaying this information on the presupposition that it may be too burdensome on the minor. In the case of Re L a 15-year-old girl was deemed incompetent as the court believed she was not sufficiently aware of the consequences of refusing treatment. Nevertheless, she was not aware because her doctors withheld this information with the belief that it would cause her undue stress thus, impeding her from being considered competent. Andrew Grubb is correct in pointing out the injustice in allowing doctors to manipulate a patient’s capacity. Nevertheless, given the necessity for the proposed treatment to be fully understood it could be deduced that the Gillick competent child is extremely well informed and thus very capable of making a decision.
The failure to inform has a domino effect on a child’s ability to balance arguments for and against the treatment which is another key requirement when establishing Gillick competency. Often this is the most contentious prerequisite as it requires the evaluation of a child’s ability to balance the risk of death or irreparable harm. As seen in Re R and Re W the courts have not deemed it possible because it would be acting against their welfare. However, Priscilla Anderson’s research into children’s ability to consent to surgery, found that children as young as seven can understand their procedures as well as the consequences of not receiving treatment. Moreover, I would argue that there is knowledge gained through suffering. There are children who are more aware of the finality of death because they have been facing it for several years and therefore could be regarded as more competent than many adults who are faced with sudden emergency medical situations. Likewise, there has been cases where a lack of appreciation of life has been demonstrated by an adult and yet they were still deemed competent to refuse medical interaction as was in the case of Re C where the patient stated that he would rather die with two feet than live with one.
Furthermore, the child must show that they are acting in their best interest. In cases of life-extending treatment, often the courts will override the child’s refusal if there is enough evidence by doctors that the child will survive. Nevertheless, there are other factors that must be considered, and which can only be voiced through the child’s voice. For example, the psychological and emotional trauma is extreme for any patient undergoing surgery. Factoring in an unwilling child who has already gone through a multitude of operation for a non-existent guarantee of a high-quality/normal life, could be considered torture for some. An interview conducted by Anderson explored the story of girl on the transplant waiting list who passed away and following her death the doctors found that she had been starving herself by hiding her food. The judiciary risks children dying more painful deaths and/or suffering greater consequences by not prioritising their choice. Furthermore, this raises the question: To what extent should we subject children to continuous burdensome and high-risk procedures in order to satisfy an adult’s perception of what is in the child’s welfare?
Conclusion
English medical law does currently prioritise child welfare over choice however the inconsistencies shown call for a reconsideration of the judicial approach towards competent children. The burden of proof for a Gillick competent child is strenuous and although necessary at times (given the vulnerability of some children), a child that proves his or her competency through the Gillick test has proven to have the necessary skills to consent or refuse treatment. Moreover, this essay has proven that a failure to do this goes against the foundations of biomedical ethics and is a curtailment of children’s rights from an international and national perspective.