In the U.K., Children Can't Just Say No

Abstract

Although children in England do not reach majority until least the age of eighteen, the law has for almost twenty-five years been moving toward empowering even quite young children in the arena of health care. As a result, children of sixteen or seventeen, and even some under the age of sixteen, have been treated as adults vis-a-vis medical care. All this may have changed, however, as the result of a recent decision regarding the absence of legal right of a sixteen-year-old suffering from anorexia to refuse one form of medical treatment while consenting to another. As long ago as 1969 the omnibus Family Law Reform Act declared ([unkeyable]8.1) that consent to medical treatment given by a minor of sixteen shall be as effective as it would be he were of full age, and that in such cases consent need not be obtained. Indeed, although the common law position of those under sixteen remained uncertain, section 8.3 of the act appeared to consider that consent by such younger children could also be valid, least in certain cases, such as confidential access to contraception. This view of children's legal rights appeared to have been strengthened in Gillick v. West Norfolk & Wisbech Area Health Authority (1985), where the House of Lords ruling declared that parental responsibility diminishes as the child acquires sufficient understanding to make his own decisions and that at Common Law a child of sufficient intelligence and understanding could consent to treatment, notwithstanding the absence of the parents' This judgment expressly declared that a doctor might provide contraception to a minor under sixteen with or without her parents' consent if the prescription is the bona fide exercise of his clinical judgment as to what is best for his patient's health. As a result, the Department of Health's Guidelines for Ethics Committees (1991) holds that consent cannot override a competent child's refusal of consent. Similarly, since 1984 the British Medical Association's Philosphy & Practice of Medical Ethics (1988) advises that physicians may provide contraception to mentally mature women under sixteen without notification or consent that clinically serves the patient's best interest. Since Gillick, the Children's Act (1989) has emphasized the importance of all parties (including parents, professionals, and local authorities), paying attention to children's views, even the views of the very young (including the pre-school) child. More recently still, the Access to Health Records Act (1990) follows Gillick closely in allowing children under sixteen in principle to gain access to their medical records. Profound doubt has now been cast on this steady development of the legal rights of minors in health care by a recent ruling of the Court of Appeal, Re J (a minor) (medical treatment), in a judgment handed down on 10 July 1992.[1] The Court heard that in 1990 the age of fourteen, J, who had been in the care of local authorities for some six years, was admitted to a residential unit run by a consultant (that is, specialist) psychiatrist for the treatment of anorexia nervosa. In 1991 J had given consent to be fed with a nasogastric tube for a short time, during which treatment her arms were encased in plaster, again with her consent. …