Adolescents and informed consent
The project sought to explore how legal ambiguity surrounding child consent affects clinicians (and young people and their families), and to debate the potential impact of various proposals for reform of the law on adolescent consent.
Currently, parents can override competent decisions to refuse treatment made by under 18 year olds. In 2009 the Department of Health issued guidance which questioned whether this was compatible with the Human Rights Act 1998.
The research team held four workshops at which legal, ethical and social science experts joined healthcare professionals from a range of specialties.
1. More research is needed on how decisions about minors who refuse medical treatment are made at a clinical level.
2. Parents can consent on behalf of a young person who lacks competence. The test for competence is vague and the threshold depends on the likely outcome of the decision.
3. The parental power to overrule a young person’s competent decision is subject to legal challenge.
4. The court can provide authority to treat a competent young person in order to protect life (Art 2 HRA) and health (Art 8(2) HRA).
5. A test case is needed, not only as a practical solution when doctors consider it to be in the best interests of young people to receive treatment they refuse, but also to resolve legal ambiguities concerning the tests for competence and best interests.
6. In the mean time, clinicians should be wary of:
- Using the possibility of court authorisation as leverage (to persuade a young person to agree to treatment) – because this may undermine the young person’s autonomy interests.
- Accepting refusals which the court might overrule - because this may not adequately protect children’s welfare. Also this may result in complaints at a later date if the decision adversely affected the young person’s quality or longevity of life.
- Relying too heavily on part of the Mental Capacity Act 2005 definition of capacity to assess the capacity of under 16 year olds. This is only one part of a two part test that was not designed to be used in isolation or in this context. Its use sets a high threshold for competence which might mean that some young people are viewed incompetent to consent, or that different tests are used for consent and refusal.
Dr Emma Cave, School of Law, University of Leeds
Children and Families
Grant amount and start date
E, Cave; Stavrinides, Z (April 2013). Medical Practitioners, Adolescents and Informed Consent Project Final Report. University of Leeds (PDF)
Briefing paper aimed at healthcare practitioners and policy makers
E, Cave (April 2013). Young People who Refuse Life Sustaining Treatment: A Briefing Paper on Current Law and the Need for Reform (PDF)
Zenon Stavrinides, ‘Adolescent Patients' Consent and Refusal to Medical Treatment: an Ethical Quandary in English Law’ (2013) Issue 8 Humanicus.
Emma Cave, ‘Goodbye Gillick? Identifying and Resolving Problems with the Concept of Child Competence’ Legal Studies, advance online publication (2013).
Emma Cave, ‘Adolescent Consent to Medical Treatment’ In Heather Montgomery (Ed), Oxford Bibliographies in Childhood Studies. New York: Oxford University Press (forthcoming in 2013).
Emma Cave, ‘Competence and Authority: Adolescent Treatment Refusals for Physical and Mental Health Conditions’ (2013) 8(2) Contemporary Social Science (forthcoming).
Emma Cave, Julie Wallbank, ‘Minors’ Capacity to Refuse Treatment: A Reply to Gilmore and Herring’ (2012) 20(3) Medical Law Review, 423-449.
Emma Cave, ‘Maximisation of a Minors’ Capacity’ (2011) 4 Child and Family Law Quarterly, 429-450.
Emma Cave, ‘Seen but not Heard: Children in Clinical Trials’ (2010) 18(1) Medical Law Review, 1-27.
Emma Cave, ‘Adolescent Consent and Confidentiality in the UK’ (2009) 16(4) European Journal of Healthcare Law, 309-331.
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