I guess I should start with a Happy New Year to you all, and wish you all the best for 2014. I am back in the office after a lovely wee holiday back in Scotland and it is time to buckle down and get back to work. As soon as I arrived into the office today I was handed a brief that I had to compile for counsel and, oh my, it is a big one. So my day is off to a flying start.
While I was back at home my best friend asked me for some help with her essay for university. Now I am no expert, but I didn’t see how I was going to be able to help a medical student with an essay, until she told me that she needed some advice about the law surrounding child law cases in relation to consent and refusal of medical treatment. Well, she certainty came to the right person, and I immediately went ruffling through my child law notes from last year to help her.
This area of law concerning children’s rights in medical cases is somewhat complex and the leading case in this area is Gillick v West Norfolk & Wisbeck Area Health Authority  AC 112. This case concerned a mother who sought a declaration that it would be unlawful for a doctor to prescribe contraceptives to a girl (in this case her daughter) under the age of sixteen without her parent’s consent or knowledge. The declaration was refused and it was held that as long as the child is Gillick competent then she can consent herself. Lord Scarman stated that capacity does not turn on age, but whether the individual has “sufficient understanding and intelligence to enable her to understand what is being proposed.”
This would seem quite simple- child consents to treatment; child allowed treatment, child refuses treatment; child not given treatment, as long as the child in question is Gillick competent. Essentially, the words “simple” and “the law” are never seen in the same sentence and so this little outline is not the case.
For instance, in Re R  4 AII ER 177, a 15 year old girl refused antipsychotic treatment for a mental illness. The child, at the time of refusal, was deemed to be rational, yet the local authority applied for wardship under which the treatment could be administered without the girl’s consent. The girl was deemed incompetent by the High Court judge, and the Court of Appeal upheld this ruling. Lord Donaldson stated that there was a distinct difference between capacity to consent and capacity to refuse treatment. He stated that although consent of either the competent child or parents would suffice, in relation to refusal – only refusal of both would be valid (in this case the local authority were in place of the parents). This decision contradicts the interpretations of Gillick, where it was assumed that the refusal of a competent minor would be equally as valid as a minor’s consent to treatment.
This is just one of the many cases where a child’s refusal of treatment has been overridden by the court, another example is Re W (A Minor) (Medical Treatment: Court’s Jurisdiction)  3 WLR 758.
Therefore, the line is blurred when it comes to determining if a child, who may be Gillick competent, can refuse treatment. However, it must be noted that the court will always act in the best interests of the child.
It can even be the case, where a child is too young to consent to treatment and her parents refuse treatment that the court can overrule the parents’ decision. This recently occurred in Re TM (medical treatment)  EWHC 4103 which concerned a 7 year old child who was born prematurely and had cerebral palsy and other medical and developmental complications. Due to the problems she suffered, she underwent a gastrostomy for the purposes of hydration and nutrition. The first PICC (catheter for these purposes) had to be removed due to infection and the parents became resistant to it happening again and to consequent procedures being performed by the hospital. A without notice application was made to the court to allow a second PICC. The judge granted a declaration that it would in the child’s best interest for a further PICC to be inserted. In this case, the court was able to overrule the decision of parents regarding consent to medical treatment.
Children’s participation in health care decision-making is encouraged; however there is a lack of clarity as to whether competent refusal or the best interests of the child should prevail. This could arguably be extended to the refusal of parents where the child is too young to make an informed decision.
What do you think? Should a competent child be able to refuse medical treatment?
And my best friend just called to tell me that she “hates how law has no clear answer.” And with that, I bid her good luck.
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