Refuse Medical Treatment For Minors

Introduction

The right to consent to medical treatment as well as refuse medical treatment is considered to be one of the essential rights of patients, these rights being rooted in autonomy of the patients. However, in order for such right to be exercisable, the patient should have the capacity for consenting or refusing treatment. Capacity relates to the mental competency of an individual to refuse treatment. In the case of children, the existence of such capacity is a complicated issue because lacking the age of majority, the assumption is made that the child lacks capacity to make decisions. Therefore, it is the adults responsible for the child’s welfare who are considered to have the power to make decisions regarding medical treatment. The principle of beneficence is used in such cases, to ethically justify the making of such decisions on the behalf of the child patient.

In other words, the autonomy of the child may be considered to be overridden by the principle of beneficence and the decision to give the treatment made as against the wishes of the child. At the same time, it may be noted that minors between ages of 16 to 18 years are empowered to consent to their medical treatment as per the provisions of the Family Law Reform Act 1969, specifically, Section 8. However, consent and refusal of treatment are not the same and they have different implications. While Gillick competence can be used to consent to treatment, it may not be used under all circumstances to reduce treatment. As noted by Brazier and Bridge, adolescent autonomy with regard to right to refusal of treatment is a myth and in the real sense, no minor under the age of eighteen has the right to refuse treatment that his doctors or parents think important. The question is whether children should have the right to refuse treatment if they are Gillick competent. This essay critically discusses the Gillick competency principle and the legal, ethical and professional issues involved in context of right to refuse treatment.

Gillick Competency

The seminal case of Gillick vs West Norfolk and Wisbech AHA and the DHSS, led to the formulation of what is called as Gillick competency, which relates to capacity of children to make decisions with respect to medical treatment, as long as such children have the understanding on the conditions that they are giving their consent to. In Gillick case, the court held that minor children may have the capacity to understand the medical conditions of their treatment and also have the ability to discern the moral and ethical aspects of this treatment too, in which case their opinions or desires regarding treatment. The court provided a test for allowing children to make decisions with respect to their treatment, this test being based on the minor child’s understanding of the nature of the medical treatment. In such cases, the parental rights to consent or refuse the medical treatment would be superseded by the child’s right to consent or refuse such treatment. As such, the Gillick test was applicable for the refusal of treatment by child. The reasoning behind the decision was that growing maturity of the child must be taken into consideration for decision making in the context of medical treatment. It may be noted that in cases where the child lacks capacity to make such decisions on their own, parents of the child are in the position to make such decisions in best interest of the child. When the decision is with respect to refusal of treatment, the court may consider the best interests of the child to overrule such decisions. The principle of beneficence may guide the courts in refusing to allow the decisions on refusal of treatment. However, this may go against the principle of autonomy, which is also an important right of the patient.

Right to Refuse Medical Treatment: Autonomy

Autonomy is an important right of an individual, which is rooted in the concept of self-rule or self-governance. In the context of healthcare, the right to autonomy relates to the support for values and preferences of patients with regard to medical treatment. In general, patients are considered to have moral and legal right to respect for their autonomy. Dworkin explains this right in the individual context as follows:

“recognising an individual right of autonomy makes self-creation possible. It allows each of us to be responsible for shaping our lives according to our own coherent or incoherent, but, in any case, distinctive personality.”

The above description of autonomy is moral in nature. The UN Convention on Rights of Child (UNCRC) provides that the opinions and desires of the child must be accorded respect in connection to all matters affecting them and right applies at all times. This can be used to justify the moral connotations of the children’s right to autonomy in cases of medical treatment. However, this does not justify refusal of treatment in all situations.

While the moral contexts of autonomy do create a basis for their application in medical law, it is the legal context of autonomy that is relevant in terms of enforceability of the patient’s refusal of treatment. In legal contexts, autonomy is described in contexts of competency. A person who is competent to deny or consent to treatment, can make legally enforceable decision to refuse treatment. Competency is a legal concept and a person should be able to satisfy the following components of competency in order to be considered legally competent to make decision for refusing medical treatment, these being also applicable to children who are seeking to make decisions to refuse medical treatment:

patient must have the capacity to understand information relating to his condition as well as information relating to options available for medical treatment; patient must understand that he has the specific condition and understand the implications of the condition with respect to his life and the implications of each treatment option he may elects with respect to his life; patient must be able to manipulate the information; and patient must be able to express the wishes with respect to treatment to refusal of the same in a consistent manner.

The above elements of competency of a patient are central to understanding whether or not a patient is in a position to decide to refuse treatment, and these are applicable to all patients, be these children or adults. However, it may also be noted that competence of a patient is an issue that is specific to decisions and in order for being considered competent to make a particular decision, a patient should have the competency in that particular situation. In Re C (refusal of treatment), the court upheld the right of the patient to refuse life-saving amputation because of the patient’s beliefs against such treatment. The court reasoned that as the patient was able to comprehend the information given him by the doctor and was able to consider the risks and benefits of the medical intervention; he was in a position to refuse such treatment as part of exercise of his autonomy.

In medical field, the principle of respect for patient autonomy has become a fundamental ethical principle. In the recent decades, there is more consciousness of the responsibility to respect patient’s right of autonomy in the context of making decisions related to health care. This principle has also found considerable acceptance in legal jurisprudence related to medical law. For instance, in Lane v Candura, it was observed: “the law protects [the patient’s] right to make her decision to accept or reject treatment, whether that decision is wise or unwise.” Similarly, Lord Goff observed in Re F (Mental Patient: Sterilisation): “fundamental principle is now long established, that every person’s body is inviolate.” In holding that a person’s body is inviolate, Lord Goff is also making a case for autonomy of a person. However, it may be noted that autonomy of a child may not be seen in the same way as the autonomy of an adult. As mentioned earlier, autonomy is interlinked with capacity or competency. When a person is competent to make a decision with respect to his treatment, whether these decisions be good or bad decisions, these are to be respected by the medical professionals. This may also be noted from the judgment of Butler-Sloss LJ, in Re MB (Medical Treatment):

“a mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death.”

It may be noted that autonomy for refusing medical treatment is related to mental competency. This may be further clarified by reference to the judgment of Butler-Sloss LJ in Re MB (Medical Treatment), which notes that every person “is presumed to have the capacity to consent to or refuse medical treatment unless and until that presumption is rebutted.” However, the question is whether this be presumption be applied to children as well. It is difficult to relate this presumption to children under all circumstances because, for children, capacity to make decisions is a complex area. After the Gillick decision, the interpretation is that children who are Gillick competent can give consent to as well as refuse treatment. However, after the Gillick decision, authorities indicate that Gillick competency can be used to give consent to treatment, but not to reject treatment. This is despite the Children’s Act 1989 having incorporated the Gillick competence principle that if the child has achieved sufficient understanding to make informed decisions, then their full consent to examination, assessment, or treatment is required. However, Gillick competency does not mean that the child can refuse treatment, even though it may mean that the child can consent to treatment.

One of the reasons why Gillick competency may not be enough to allow children to make decisions to refuse treatment is that children may be susceptible to opinions of adults who have influence over them and such influence may be the reason for children refusing treatment. An example of courts being driven by such concerns for the purpose of refusing to allow Gillick competent children to refuse treatment can be seen in a recent case involving the issue of immunisation of two sisters of ages 11 and 15 years with MMR vaccine. The court held that such immunisation was in the best interests of the welfare of each child. The court did consider Gillick competency of the children, but held that the girls could not be said to be Gillick competent because they were under the influence of their mother who had negative views on immunisation. As this authority indicates, there is a possibility that even if child has the competence to decide matters, such competence may be vitiated because of the possible influence of some adults in the life of the child. Therefore, assessing the competence of the child to make a decision with regard to refusal to treatment is never as easy as assessing the competence of adults.

It may be useful to understand how law treats the concept of refusal of treatment in context of adults, in order to understand how law responds to the same with respect to children. In Re C (Adult: Refusal of Treatment), the patient’s capacity to refuse treatment was explained by the court by Thorpe J in contexts of how the person understands the different aspects of the treatment. Thorpe J defined capacity for refusal of treatment in terms of three levels of understanding: (a) comprehension and retention of information related to health condition and treatment options; (b) believing the information; and (c) ability to weigh the information with regard to other factors for reaching a decision. These factors are as essential for child patients as these are for the adults. However, for patients who are minors, even if these factors are seen, it may not be appropriate to allow them to refuse treatment which may be in their best interest. Therefore, in Re W, the child was diagnosed with Anorexia Nervosa and was refusing treatment. The Court held that even if Gillick competent, the child whose parents had consented to treatment, could not refuse to get that treatment when such treatment was in the best interest of the child. In Re E, a 15 year old leukaemia patient, refused to get blood transfusion, but the court made him a ward of the court by holding that the boy was not Gillick competent as he did not have insight into the process of dying and therefore, could not make such decision.

When it comes to the best interest of the child, doctors in general can apply the best interest option which can be used for giving the parent the right to make decisions on behalf of minor children. Another option is applying the Children’s Act, which can also be used to allow parents to give consent for treatment. Such parental responsibility is sufficient for medical treatment to proceed even if the child did not want medical treatment. The courts are also involved in choosing the decision which best promotes the welfare of the child, as per the provision of the Children Act 1989 which promotes the concept of best interest of children.

In several authorities, the courts have negated a refusal to consent given by the child or the parents of the child, as this was considered to be against the best interests of the children. Generally speaking, such cases involved situations where had the decision for refusal of treatment be allowed, then the children may have died. As this would not be in their best interest, the decision to refuse treatment would have been contrary to the best interest of the children. In this context, Lord Donaldson has noted:

“[The court has the] right and, in appropriate cases, duty to override the decision of the parents or other guardians. If it can override such consents, as it undoubtedly can, I see no reason why it would not be able, and in an appropriate case, willing, to override decisions by ‘Gillick competent’ children.”

Conclusion

While children can have competency to consent to treatment as per Gillick competency rule, the same does not extend to competency of children to refuse treatment. The courts have generally taken a different approach to applying Gillick competency to children refusing medical treatment. This is so as to ensure the best interest of the child whose refusal to consent to treatment may lead to the death of the children refusing treatment. It seems an appropriate approach because even if children are competent to understand their condition and treatment options, they may not be the best judge of whether treatment should be refused because they may be too much under the influence of the parents and their opinions that they may refuse treatment that their parents do not agree with. Moreover, even if Gillick competent, the best interests of the child is paramount consideration and courts can overrule decisions of parents as well as children where such decisions may not comply with the best interest of the children.

List of Cases

F v F [2013] EWHC 2683 (Fam).
Gillick vs West Norfolk and Wisbech AHA and the DHSS CA [1985] 2 WLR 413.
Lane v Candura (1978) NE 2d 376.
R v Blaue (1975) 61 Cr App R 271.
Re C (refusal of treatment) [1994]1WLR 290.
Re E (A Minor) (1990) 9 BMLR 1.
Re F (1990) AC 2.
Re MB (1997) FLR 2 426.
Re R (A Minor) (Wardship: Consent to Medical Treatment) [1992] Fam 11
Re R (Child) 2016 EWCA Civ 1016.
Re T (1993) Fam. 95.
Re W [2005] EWHC 1564 (Fam).

Books

Beauchamp TL and Childress JF, Principles of biomedical ethics (Oxford university press 2001).
Dworkin R, Life’s Dominion: An Argument about Abortion and Euthanasia (Knopf, 1993).
McCarthy J, Donnelly M, Dooley D, Campbell L and Smith D, End of Life Care: Ethics and Law (Cork: Cork University Press 2011).

Journals

Applebaum PS, ‘Assessment of Patients’ Competence to Consent to Treatment’ [2007] 357 (18) N Engl J Med 1834.
Brazier M and Bridge C, ‘Coercion or caring: analyzing adolescent autonomy’ (1996) 16(1) Legal Studies 84.
Devereux JA, Jones DP and Dickenson DL, ‘Can children withhold consent to treatment?’ (1993) 306(6890) Bmj 1459.