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Consent is No Minor Issue

AUTHOR(S): Tom Hayes, Rebecca Ryan
PRACTICE AREA GROUP: Healthcare
DATE: 25.01.2012

Rebecca Ryan looks at new Law Reform Commission recommendations on healthcare treatment for minors.

The treatment of minors and the lack of legal clarity surrounding some issues of consent may result in a healthcare professional facing serious ethical and legal predicaments.  The recently published Law Reform Commission Report on “Children and the Law: Medical Treatment” has recommended a number of legislative reforms which, if implemented, will provide clarity to patients, parents, guardians and healthcare professionals when treating minors. 

Law Reform Commission Recommendations

The Commission has recommended that those under 16 should not be presumed competent to consent to, or refuse, medical treatment; but that, in exceptional circumstances they may be able to give their consent or refusal, based on an assessment of their maturity and a presumption that their parents or guardians will usually be involved in the decision-making process.

The assessment of whether a person under 16 is sufficiently mature to consent to or refuse medical treatment would have to take account of the following factors: (a) whether he/she has sufficient maturity to understand the information relevant to making the specific decision and to appreciate its potential consequences; (b) whether his/her views are stable and reflect his/her values and beliefs; (c) the nature, purpose and utility of the treatment; (d) the risks and benefits involved in the treatment; and (e) any other specific welfare, protection or public health considerations. 

When treating a patient under the age of 16, a healthcare professional should encourage the patient to inform his/her parents or guardians, consider the patient’s best interests and have due regard to public health concerns.

The Commission has also recommended that 16 and 17 year olds should be presumed to have full capacity to consent to and refuse health care and medical treatment including advice, contraception, surgery and mental health services.  They should also be subject to a functional test, which is “a case by case test of capacity based on whether the person understands the nature and effect of the specific decision being made”.   In the context of a refusal of life sustaining treatment by a person aged 16 or 17, the Commission has recommended that an Application may be made to the High Court to determine the validity of the refusal. 

Finally, the Commission recommends that the Mental Health Act 2001 (the “2001 Act”) should be amended to provide that due account should be taken of the views of minors who receive treatment under the Act, and to provide that a person who is 16 or 17 years of age is presumed to have capacity to consent to and to refuse psychiatric treatment.

Pending the implementation of these recommendations, healthcare professionals must adhere to current ethical and legal guidelines when consenting and treating minor patients.  The following may provide some practical guidance:

Age of Consent/Majority

In Ireland, a person attains the age of majority at 18 years old.  Section 23 of the Non Fatal Offences against the Person Act 1997 (“the 1997 Act”), provides that minors over 16 can consent to medical, surgical and dental treatment, without parental consent/approval. The 1997 Act covers treatment which, in the absence of consent, could constitute a criminal trespass to the person. 

Consenting Patients Under 16

Although not explicitly stated in the Constitution, it is recognised that the family is the ultimate decision-making authority regarding the appropriate medical treatment of a child under the age of 16.  Articles 41.1 and 42 of the Constitution of Ireland recognise the “inalienable right and duty of parents” to provide for their children and to make decisions affecting their religious, moral, intellectual, physical and social welfare. 

Compelling reasons or exceptional circumstances must exist to warrant State intervention.  The leading Irish case in this area is North Western Health Board v W(H), known as the “PKU case”.  In this case, the parents, who were Jehovah’s Witnesses, refused to allow their newborn child undergo a screening test intended to identify metabolic disorders. 

The Supreme Court held that the Courts will only intervene and overrule the parents, when there is a severe threat to a child’s life, health and welfare, and if to do so is in the child’s best interests.  On the facts, the Court found that the parents’ decision-making autonomy prevailed, as it could not reasonably be said that there was a severe threat to the child’s health or welfare. 

In the UK, the “Gillick test”, as set out in Gillick v West Norfolk and Wisbech AHA, states that a minor under 16 years of age may consent to medical treatment, if he/she is mature enough to understand what is involved.  While it is accepted that the “Gillick test” has persuasive value in Ireland, it has not been endorsed here.  Arguably, the supremacy of Articles 41.1 and 42 of the Constitution preclude any application of the “Gillick test” here.

Refusal of Treatment by Patients aged 16 and 17

At present, there is uncertainty surrounding the refusal of medical treatment by a person aged 16 or 17, as the 1997 Act is silent in relation to this and the issue has not been tested in the Courts.   In general terms, where a 16 or 17 year old has refused treatment, parents or guardians can consent to that treatment. 

However, this is not an optimal situation, particularly where a minor patient has the capacity to comprehend the consequences of their decision.  It is worth bearing in mind that the Supreme Court, in the case of re Article 26 and the Adoption (No.2) Bill 1987, recognised that a child enjoys personal constitutional rights under Article 40.3, quite apart from the rights derived from Articles 41 and 42. 

These unenumerated rights could include the rights to dignity, bodily integrity and self-determination.  If in doubt, healthcare professionals should refer the matter to the Courts unless the treatment is urgently required to save the patient’s life, in which case the patient’s best interests prevail.

Consent to Mental Health Treatment

Under the Mental Health Act 2001 (the “2001 Act”), mental health treatment “includes the administration of physical, psychological and other remedies relating to the care and rehabilitation of a patient under medical supervision, intended for the purposes of ameliorating a mental disorder.”

By contrast with the 1997 Act and the position in most other areas of healthcare law, the Mental Health Act 2001 only permits those aged 18 years and over to consent to treatment for the purpose of ameliorating a mental disorder.
 
The Commission has recommended that the 2001 Act be amended to provide that a person who is 16 or 17 years of age should be presumed to have capacity to consent to and to refuse healthcare and medical treatment, including psychiatric treatment.

At present, the 2001 Act, while providing for the involuntary admission of children, is silent on the rights of minors to partake in decisions regarding their mental health. The Commission has recommended that the 2001 Act be amended to provide that healthcare professionals must give children an opportunity to express their views and give those views due weight, in accordance with the child’s age and maturity.

Consent for Contraception

In Ireland, a minor under 16 cannot be prescribed the contraceptive pill or the morning after pill,  as minors under 16 cannot consent to medical treatment. At all times a healthcare professional must be cognisant of their responsibility to act in the patient’s best interest and to preserve patient confidentiality. Should a minor under 16 seek the contraceptive pill or the morning after pill, a doctor should encourage the patient to discuss this with their parents, in order for parental consent to be given.
 
A child under the age of 16 cannot give consent for a test for sexually transmitted diseases, without parental consent.  Under section 2(10) of the Criminal Justice (Forensic Evidence) Act 1990, if a bodily sample is sought from a young person aged 14 to 17, consent must be obtained from the parents or guardians, as well as from the minor. 

Conclusion

This article is intended to provide healthcare practitioners with guidance in relation to some of the relevant issues, however the key point is that there is no one-size-fits-all approach when it comes to the topic of medical consent and minors.  In each instance, the nature of the treatment required and the age of the minor both impact on the legal aspects of any proposed treatment, and as such, each case should be treated individually, with all the relevant factors receiving careful consideration. 

In the case of any doubt when consenting minors to medical treatment, healthcare professionals should consult the Medical Council Guide to Professional Conduct and Ethics, Section D, Consent to Medical Treatment (7th Edition 2009) or seek legal advice from your indemnifying body. 

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