Minors

Clearly, when a child is very young, decisions about health care have to be made by others. Parents are given by law the right to care, custody, and control of their young children, and it is their views which will decide whether or not treatment should proceed. However, it should be remembered that children are not possessions and that parents are legally authorized to act only in the best interests of their children. Therefore parental consent to involving children in certain procedures, such as non-therapeutic clinical trials, must be of dubious legal standing.

However, the real dilemmas arise as children begin to mature. The older child may well have opinions about treatment which conflict with those of parents and doctors. The question is whether or not these wishes, rather than those of the parents, should be respected. The age at which a child becomes an adult for legal purposes varies from country to country (in Scotland, for example, the child becomes an adult for these purposes at age 16 (Age of Legal Capacity (Scotland) Act 1991); in England and Wales, partial decision-making powers are given by the Family Law Reform Act 1969. However, even before that age is reached, children begin to be legally entitled to enter into certain transactions without requiring parental authority. These transactions can also include decisions about whether or not to accept health care.

The capacity to make binding decisions is based on the child's maturity and capacity to understand the information about the treatment and also what would happen if the therapy is refused. Lord Scarman, in the Gillick case, put the position in this way: '...I would hold as a matter of law that the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed' (Gillick v. West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 at p. 423 (H.L.)).

Therefore the mature child should be entitled to the same information as an adult and his or her decision should be respected. However, yet again in this situation, there is considerable reluctance in some reported cases to uphold the young person's decision when it does not follow the clinical recommendation ( ENjstgn 1996).

Most commonly, this arises when a child refuses treatment. In strict law, and in line with the ethics of medical treatment, this is anomalous and paternalistic. As Ho.g.g.etL(.198.6). puts it: '.the capacity to consent must logically include the capacity to dissent: if, then, parental capacity is diminished to the extent that the child herself has acquired capacity, the parents should have no power to insist.a duty to provide adequate medical aid does not necessarily import a power to force it upon a competent child who has rejected it'.

Although societies rightly strive to protect children, protection at the expense of respect is a poor compromise. It must be remembered that the age at which that same individual could make unchallengeable choices is essentially arbitrary and varies from one jurisdiction to another. Therefore there is nothing sacrosanct about it, and the child's decision should be tested against understanding rather than chronological age. Generally speaking, it is the doctor who is charged with deciding on the maturity of the child, and it is essential that this judgment is based on the child's actual capacity rather than on whether or not the doctor approves of the decision which the child makes.

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