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Essay: Gillick Test for minors / paramountcy principle & disparity with treatment of capacity in adults

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  • Gillick Test for minors / paramountcy principle & disparity with treatment of capacity in adults
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Arguably, both in the case of mature minors and children, English medical law always prioritises welfare over their choices. Patient autonomy, understood here as the right for competent individuals to exercise control over their medical treatment, must include both the right to refuse and to consent to treatment. The former, however, is where we see Gillick competent children and mature minors be stripped of their autonomy, as the court steps in to block any decision that may hinder on welfare. This essay will explore the establishment of the Gillick Test, the position of mature minors who are presumed to be Gillick competence, and the prevalence of the paramountcy principle in medical decision making for children who are able to demonstrate their capacity through satisfying the criteria set out in Gillick. As well as this, some comparison will be made between the position of children and adults to highlight disparities and inconsistencies between the two different standards of capacity and make a point about the unfair treatment of children in English Medical Law.

Gillick: provision of autonomy or a biased test?

One seemingly significant advancement for the promotion of child autonomy and that of young minors primarily comes from Gillick v West Norfolk. The case, often considered a landmark decision, raised the issue of whether in the absent of parental consent, a child was able to access contraceptive advice, and on a wider level, consent to medical treatment. Consequentially, the judgement set to establish where the rights of the parent ends, and where that of a child begins. Lord Fraser established several conditions that ought to be satisfied in order for a doctor to provide contraceptive advice to a minor without the consent of a parent. It is necessary that the doctor must deem the proposed treatment to be in the medical best interests of the minor, and if this requirement is satisfied, the parent’s right to consent on behalf of the child can no longer be exercised. This stance taken by Lord Fraser, arguably, adopts more of a paternalistic approach in regard to children and consent, as the primary focus is on the best interests of the child as opposed to the child’s absolute autonomy. It can even be said that Lord Fraser’s test essentially shifts the paternalistic rights from the parent to the doctor, as he believes that ‘the practicable course is to entrust the doctor with a discretion to act in accordance with his view of what is best in the interest of the girl.’ Lord Scarman’s test, on the other hand, can be said to be more promoting of the rights of children and also more far-reaching, as he places emphasis on the child’s ‘sufficient understanding and intelligence’ , implying that a sufficiently informed and matured child may be able to independently consent to treatment. However, this seemingly liberal stance is somewhat undermined by Lord Scarman’s mention of the child’s ability to make a wise decision. This qualification seems to imply that minors, even when of sufficient understanding, may only have the capacity to consent to treatments that are considered in their best treatments, which is still not absolute autonomy. Although the Gillick test is the foundation used to determine which minors may have capacity to consent, the test appears to be biased ab initio towards a more paternalistic approach, challenging the extent to which it enables minors to exercise genuine autonomy even in spite of their welfare.

Mature Minors: right to consent, no right to refuse

Although English Law attempts to make a distinction between children and mature minors in terms of capacity, arguably, the law still falls short in respecting the choices of mature minors and enabling them to exercise complete autonomy, therefore challenging the claim that ‘it is fine to talk to patient autonomy in the context of mature minors’. Whilst children have to demonstrate that they are Gillick competent, mature minors, similar to adults, are presumed to have competency. Although the Family Reform Act 1969 s 8(1) provides that ‘the consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age’, case law has made it clear that this allowance only deals with consent, and not refusal. In fact, in cases where refusal is dealt with, there has been great reluctance by the judges to find mature minors Gillick competent. This is demonstrated in Re W , whereby the courts exercised its jurisdiction over minors and ordered that a sixteen year-old girl suffering from anorexia be moved to a specialised hospital against her will to receive treatment. The court established that the Family Reform Act 1969 does not extend to the refusal of treatments, and therefore arguably limiting the extent of the autonomy which the act sought to provide. In fact, in Donaldson LJ’s obita dicta in Re R, he went as far as to state that nothing in the act stops doctors from acting solely on the parent’s consent, which can be said to undermine completely the purpose of the act as the idea of concurrent rights proposed cannot co-exist as well as patient autonomy. Indeed, in The Judge And The Competent Minor , Andrew Bainham took the view that Donaldson LJ’s statement ‘flies in the face of the settled interpretation of this provision–that it was intended to confer complete autonomy on a young person of this age and that by implication this must outweigh any parental claim to decide.’ Whilst this apparent restriction of the autonomy rights of mature minors could be justified by the argument that refusal of treatment requires greater mental capacity, it is important to question why in the case of adults, there is no such demand for the demonstration of sufficient mental capacity where refusal is dealt with. Rather, an adult’s refusal is to be accepted regardless of whether it is deemed wise or unwise. If refusal is indeed different from consent in that it requires some form of greater mental capacity, then this ought to be reflected in capacity laws for adults likewise. However, the lack of distinction between a ‘wise’ and ‘unwise’ decision in the Mental Capacity Act 2005 indicates that they are equal in consideration. Therefore, if a mature minor is able to consent to treatment, then there should also be a right to refuse treatment. The absence of the latter clearly demonstrates that even when dealing with mature minors, English Medical law will always prioritise welfare over autonomy.

The Paramountcy Principle

When dealing with children under the age of sixteen, the prevalence of the Paramountcy Principle becomes abundantly clear, even in circumstances where it would result in the undermining of childrens’ choices. The Paramountcy Principle, as laid out under the Children Act 1989 s 1(1) and s 1(3) , establishes how the best interests and welfare of a child ought to be at the heart of decision making. This is best demonstrated in Re R , whereby Donaldson LJ argues that the courts wardship power supersedes that of parents as it is the court that is charged with a duty to protect the welfare of those under 18, thus giving the judges power to override Gillick. In Re R, the judges held that a fifteen-year-old girl suffering from mental health issues lacked the competence to consent or refuse medical treatment, despite being deemed as Gillick competent during her unaffected periods of mental health where she expressed her refusal. It was reasoned that as a result of her mental health, she was rendered incompetent to make her own decision. The courts also established that even in a case where a child was accepted to be Gillick competent, the courts had the power to override his or her decision. As explained by Farquharson LJ and summarised by Andrew Bainham, the ‘court’s duty in wardship was to regard the ward’s welfare as paramount and that its determination of this might not accord with the child’s own view’, and so the outcome of the Gillick Test and Paramountcy principle could be drastically different. One significant issue with this ruling is that it appears to indicate a higher standard of capacity for mentally ill children than adults. The case of Re C highlighted that a mentally ill patient is not necessarily to be treated as lacking capacity simply because of their mental health, as not all mental illnesses completely hinder an individual’s ability to make informed judgements. However, in the case of Re R, it appears that despite her being deemed competent during her stable moments (where she made the decision to refuse), the courts still refused to respect her decision.

Bainham argued that it is important ‘to question whether the law should demand a greater level of appreciation and understanding of the implications of decisions from children than it appears to require of adults who are assumed to have, but not required to demonstrate, emotional or intellectual maturity.’ This challenges the idea presented in Anne Morris’ Gillick 20 Years On: Arrested Development or Growing Pains, which argues that by virtue of age, children lack the ability to assess ‘adequately the impact of their decisions’ and as a result, the avoidance of unnecessary harm and distress ought to outweigh their choices. However, surely if a child is deemed competent, then it ought to be accepted that they have given adequate thought into the impacts of their decision, and so their decision should be respected. The obdurate lack of consistency in attitudes shown towards capacity in children versus in adults only emphasises the court’s commitment to upholding and protecting the welfare and best interest of children, even where it may compromise their autonomy rights as protected under The Human Rights Act 1998 Article 8 and lead to unfair results.

Furthermore, even in cases such as Re X where it appears that the child’s autonomy is being respected, we see that rather, it is essentially paternalism and the welfare of the child operating. Although the child’s mother opposed the termination of her pregnancy, the ruling judge enabled the termination to proceed as ‘X’s expressed wishes at the end of the hearing thus accorded with my assessment of her best interests.’ This further demonstrates how the welfare of the child is at the heart every decision, and if the child is lucky, their personal wish may align with what is in their best interest. This is again reflected in the GMC guideline which provides that ‘parents cannot override the competent consent of a young person to treatment that you consider is in their best interests’ . If the decision is not in the best interest of the child, even if competent, the parents are free to override it. This clearly undermines any idea that a child has autonomy in medical decision making, as their decision can be disregarded if thought not be in their best interest.

Ultimately, English medical law fails to provide autonomy to both mature minors who are assumed to be Gillick competence, and children who may demonstrate Gillick competency. Their autonomy is restricted by the prevalence of welfare and best interest principles, which allow their competently made decisions, particularly refusals, to be overridden if it is not thought to be in their best interest. This has resulted in children being held to unfair standards of capacity in comparison to adults, despite the fact that adults do not have to prove their capacity.

9.1.2019

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