Minors' capacity to refuse treatment: A reply to Gilmore and Herring

Medical Law Review

Volumn 20, Issue 3, 2012, Pages 423-449

  Cave, Emma ^a   Wallbank, Julie ^a  

^a UNIVERSITY OF LEEDS   (United Kingdom)

Author keywords

Consent; Gillick; Minor

Indexed keywords

ADOLESCENT; ARTICLE; COMPREHENSION; HUMAN; JUVENILE; LEGAL ASPECT; TREATMENT REFUSAL; UNITED KINGDOM;

ADOLESCENT; COMPREHENSION; ENGLAND; HUMANS; MINORS; TREATMENT REFUSAL;

EID: 84865573403     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fws003     Document Type: Article

References (51)

1. [1991] 4 All ER 177. Hereafter Re R.
2. [1992] 4 All ER 627. Hereafter Re W.
3. See S Gilmore and J Herring, '"No" is the Hardest Word: Consent and Children's Autonomy' (2011) 23 CFLQ 3.
4. S Elliston, The Best Interests of the Child in Healthcare (Routledge Cavendish 2007) 112.
5. JK Mason and GT Laurie, Mason and McCall Smith's Law and Medical Ethics (8th edn OUP 2011) 74 who argue that: 'The English courts have made a concerted effort to demonstrate their desire to find the balance in these cases and there is little in the jurisprudence of the European Court of Human Rights that would lead them to upset that delicate equilibrium
6. R (Axon) V Secretary of State for Health EWHC 37 (Admin) and R Taylor, 'Reversing the Retreat from Gillick? R (Axon) v Secretary of State for Health' (2007) 19 (1) CFLQ 81 arguing that Axon might lead to a challenge of Re R and Re W.2006
7. Gilmore and Herring, above, n 3, 6.
8. N Lowe and S Juss, 'Medical Treatment - Pragmatism and the Search for Principle' (1993) 56 Mod L R 865.
9. Gilmore and Herring, above, n 3, 7.
10. We return to this point later in the paper as we suggest that there are inherent problems with their analysis.
11. This approach raises questions about professional and ethical practices which we address later when discussing the duty of health care professionals to inform adolescents about their treatment options.
12. A definition we challenge later in the paper
13. Re Wat [84] per Lord Donaldson: 'No minor of whatever age has power by refusing consent to treatment to override a consent to treatment by someone who has parental responsibility for the minor and a fortiori a consent by the court.'
14. Gilmore and Herring, above, n 3, 25: 'Where the child does have the capacity to refuse all treatment then he or she should be treated in the same way as adults.' This implies that neither parents nor the courts should overrule a competent refusal. Elsewhere more limited rights are advocated. See p 15: 'If the child does have the capacity to refuse all treatment then her parents should not be able to override her refusal.' (Our italics
15. As is implied in the final third of the paper which examines the 'ethical support for distinguishing between consent and refusal'. See Gilmore and Herring, above, n 3, 19-25.
16. [1986] AC 112.
17. Gilmore and Herring, above, n 3, 10.
18. [1986] AC 112, [169].
19. [1986] AC 112, [253].
20. [1986] AC 112, [189].
21. [1986] AC 112
22. [174] per Lord Fraser.
23. A Maclean, 'Keyholders and Flak Jackets: The Method in the Madness of Mixed Metaphors' (2008) 3 Linical Ethics 121-121.
24. Gilmore and Herring, Above, n 3, 7 (our emphasis).
25. Re W per Lord Donaldson, [79]: 'W is not in fact refusing all treatment. Her attitude is that she wishes to continue with the treatment which she was receiving when the hearing of this appeal began.' And see [89].
26. Re W [80-81]. Lord Donaldson views the anorexia nervosa itself as preventing her from making a competent refusal. His Lordship questions Thorpe J's assessment of W's competence: '. I do doubt whether Thorpe J was right to conclude that W was of sufficient understanding to make an informed decision. What distinguishes W from [competent minors], and what with all respect I do not think that Thorpe J took sufficiently into account (perhaps because the point did not emerge as clearly before him as it did before us), is that it is a feature of anorexia nervosa that it is capable of destroying the ability to make an informed choice. It creates a compulsion to refuse treatment or only to accept treatment which is likely to be ineffective.'
27. Gilmore and Herring, above, n 3, 11.
28. E Cave, 'Maximisation of Minors' Capacity' (2011) 23(4) CFLQ 431.
29. [1986] AC 112, [253].
30. For example, [189-190], Lord Scarman quotes Lord Nathan with approval: 'I feel that the law on this point is well expressed in the volume on Medical Negligence' (1957) 176: 'It is suggested that the most satisfactory solution of the problem is to rule that an infant who is capable of appreciating fully the nature and consequences of a particular operation or of particular treatment can give an effective consent thereto, and in such cases the consent of the guardian is unnecessary; but that where the infant is without that capacity, any apparent consent by him or her will be a nullity, the sole right to consent being vested in the guardian.'
31. For example, Lord Scarman says at 'a minor's capacity to make his or her own decision depends upon the minor having sufficient understanding and intelligence to make the decision'. And Lord Fraser says at [169]: 'Provided the patient, whether a boy or a girl, is capable of understanding what is proposed, and of expressing his or her own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man to make the examination or give the treatment which he advises.' The emphasis is on understanding what is proposed.188
32. [1986] AC 112, [177] per Lord Scarman.
33. A Bainham, 'The Judge and the Competent Minor' (1992) 108 LQR 194-200.
34. J Harris, 'Consent and End of Life Decisions' (2003) 29 Journal of Medical Ethics 10-12.
35. Mental Capacity Act, ss 2 and 3.2005
36. Gilmore and Herring, Above, n 3, 12.
37. J Loughrey, 'Can You Keep a Secret?' (2008) 20 (3) CFLQ 312
38. E Cave, 'Adolescent Consent and Confidentiality in the UK' (2009) 16 (4) European Journal of Healthcare Law 309.
39. Or consider the example of Abraham Cherrix in the USA who chose herbal remedies over chemotherapy, explored in Cave, above, n 40.
40. Gilmore and Herring, Above, n 3, 10.
41. [2010] EWHC 1549 (Fam).
42. Mental Capacity Act 2005, 3(4).
43. [2010] EWHC 1549 (Fam), at [56].
44. Gilmore and Herring, above, n 3, 11
45. [2010] EWHC 1549 (Fam), [75].
46. Gilmore and Herring, above, n 3, 5.
47. J Coggon, 'Varied and Principled Understandings of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism?' (2007) 15 Health Care Analysis 235.
48. Gilmore and Herring, above, n 3, 22.
49. Gilmore and Herring, above, n 3, 10
50. R Taylor, 'Reversing the Retreat from Gillick? R (Axon) v Secretary of State for Health' (2007) 19(1) CFLQ 81.
51. J Fortin, 'The Gillick Decision - Not Just a HighWater Mark', in S Gilmore, J Herring, R Probert (eds) Landmark Cases in Family Law (Hart Publications, Oxford 2011