Introduction
1 The Appellant invites the court to uphold the appeal that the Appellant has the right to refuse treatment if competent and that Re W should be overruled as inconsistent with Article 8 of his Convention rights.
2 The case for the Appellant is that:
(1) The Appellant may have the right to refuse treatment due to the flaws in the judicial reasoning in Re W and Re M.
(2) Re W may not be relevant as it was decided before the incorporation of the European Convention of Human Rights (ECHR) into the Human Rights Act 1998 (HRA). Judicial attitudes have shifted to give greater consideration to the child’s Article 8 rights.
Issues
The issues are whether competent children should have the right to refuse treatment and whether Re W should be overruled as inconsistent with Article 8 of the ECHR.
Facts
3 The Appellant, LS, is sixteen. He refuses to have a heart transplant. His parents support a transplant. The Respondent, Z Hospital NHS Trust, seeks to perform the transplant even though the Appellant may be competent. The High Court and the Court of Appeal followed Re M and Re W, and held that the transplant should be performed after considering the Appellant’s best interests.
Submissions
The Appellant may have the right to refuse treatment due to the flaws in the judicial reasoning in Re W and Re M.
(1) Re W and Re M may not be binding.
4 In Re W, the child may be incompetent as her illness may have influenced her to “be in control” by refusing treatment. So, Lord Donaldson’s comment that parental consent can override the refusal of treatment by competent children may be mere obiter. Even if the child was competent, Re W should not be followed because the test for competence lacks clarity and the level of competence needed to refuse treatment is not stated. Hence, Re W may not be binding because the child may be incompetent and it is unacceptable that the test for competence, which will determine the child’s future, is so unclear that children do not know the level of competence needed to attain absolute autonomy to refuse treatment.
5 In Re M, the child may be incompetent because even though she understood that she would die without treatment, she expressed her wish not to die. The vagueness surrounding the child’s competency means that it is unclear whether the refusal of treatment by competent children can be overridden. Even if the child was competent, Re M should not be followed. Unlike Re M, where the child was “overwhelmed” by her sudden deterioration in health, the Appellant has undergone multiple surgeries and still receives treatment. The Appellant’s long medical history shows his deep understanding of his treatment and that his refusal of treatment is not a rash decision made because he was “overwhelmed”. Hence, Re M may not be binding because the child’s competence is questionable and the Appellant’s decision may not be regarded as a rash decision.
(2) Re W and Re M may contradict the judicially superior Gillick decision.
6 Re W and Re M, which are Court of Appeal decisions, employ a paternalistic approach restricting the autonomy of children. The judicially superior Gillick House of Lords decision suggests a more autonomous approach by giving competent minors the right to determine their treatment.
7 Gillick competence states that the minor’s age and outcome should not be considered. Re W contradicts Gillick by ruling that courts are obliged to protect the child until she is eighteen. Supporters of the age-based approach argue that children lack the “past experience” needed to understand the consequences of refusal. While it is true that some children are immature, this is a generalisation which may not apply to all children. Chronically ill children would not lack “past experience” and may have a deeper understanding of their treatments than adults. Furthermore, the mental capabilities of mature minors may be no different from an eighteen-year-old’s, yet their refusal can be overridden. The argument for an age-based approach is unpersuasive as it is entirely possible for mature minors to turn eighteen only to refuse life-saving treatment and die feeling ‘violated’ by the courts’ paternalism. Similarly, even though the Appellant is sixteen, he has a long medical history and would not lack “past experience”. As it is likely that the Appellant would be just as mature as an eighteen-year-old, he should be able to refuse medical treatment.
8 Re M should not be followed because unlike Gillick, the child’s competence was not assessed. Re M contradicted Gillick by employing the outcome-based approach, prioritising the need to preserve the child’s life over her maturity. Re M is an arguably dubious authority because the child was deemed to be intelligent and mature. It is likely that she would be competent, but the lack of legal assessment of the child’s competence shows the desperateness of the courts to deny competent children the right to refusal. This is problematic because it creates legal uncertainty about the test for competence and whether competence matters when overriding the child’s refusal.
9 In this appeal, the court should not follow Re W and Re M as these decisions contradict the judicially superior Gillick judgement by discriminating based on the child’s age and outcome of refusal. Furthermore, Re W and Re M create legal uncertainty about the test of competence. The court should grant the Appellant the right to refuse treatment if mentally competent instead of basing its decision on the outcome of the Appellant’s refusal by justifying that the treatment was in the Appellant’s “best interests”.
Re W should be overruled as inconsistent with Article 8.
(1) Greater weight is now given to Convention rights after the ECHR has been incorporated into the HRA.
10 Historically, courts were not obliged to act compatibly with Convention rights. However, after the incorporation of the ECHR into the HRA, judges are regarded as public authorities who “must” act compatibly with Convention rights. Article 8, which is explicitly relevant to children, suggests that the child’s individual autonomy should be respected and children possess the power to exercise their rights.
11 It may be contended that Article 8(2) allows Article 8 rights to be interfered with for the “protection of health”. In NHS v P, even though the courts considered the child’s Article 8 rights relevant, her rights were dismissed to follow Re W. However, NHS v P should not be applied in this appeal because of their material differences. First, NHS v P was decided in the High Court so it has to follow the judicially superior Re W Court of Appeal decision. In contrast, this appeal is being heard in the Supreme Court. The Supreme Court is not bound to follow the Court of Appeal’s decision in Re W. Second, the child in NHS v P had consented and began treatment. The judge was merely deciding beforehand if the child were to refuse the later treatments. However, the Appellant has explicitly refused treatment from the start. Overriding his clear refusal of treatment may be a more serious interference with his Article 8 rights than in NHS v P.
12 Furthermore, the courts have given greater weight to Article 8 rights under medical law by stating that the right to self-determination is found within Article 8, even for life-and-death decisions. As Article 8 is especially relevant to children and children enjoy the same Convention rights as adults, the rights of children to self-determination should be respected even in cases where children are refusing life-saving treatment.
(2) Courts are departing from the paternalistic approach in Re W.
13 Unlike Re W, which employs the paternalistic approach of treating children as vulnerable objects whose rights should be protected, the incorporation of the ECHR into the HRA allows children to be treated as autonomous individuals with the right to self-determination. In Mabon v Mabon, the courts highlighted Article 8 and stated that the right to self-determination ‘outweighs’ paternalism. This shows that the courts may have departed from the welfare-based approach in Re W to respect the autonomy of children. R (Axon) v Secretary of State for Health focussed on the child’s right to individual autonomy, confirming that Gillick was good law and a welfare-based approach may contradict Gillick. Re W may no longer be relevant as it is inconsistent with the idea of the right to self-determination in Article 8 and Gillick.
14 However, Article 8(2) permits interferences to be justified “for the protection of the rights of others”. Some might argue that parental consent should override their child’s refusal to treatment because of the importance of parents in their child’s development. In Nielsen v Denmark, the dismissal of the child’s Article 8 rights appears to support the idea that parental consent outweighs the child’s autonomy despite the HRA. However, Nielsen may not be applied here because the child was merely twelve years old, so it may be reasonable to prioritise parental consent. It has been suggested that the child’s wishes would carry greater weight if he had been older. The Appellant is sixteen years old, hence his wishes would have more gravity because he may possess greater maturity and understanding. Additionally, Nielsen was decided nearly thirty years ago. As the Convention is a ‘living instrument’ that evolves with societal changes, it is likely that greater weight would be given to the children’s Article 8 rights now. Furthermore, children enjoy the same rights as adults and discrimination is prohibited. Favouring parental rights to deny the child’s right to refusal would undermine the purpose of Article 8.
15 Hence, Re W should be overruled as it may no longer be relevant after the incorporation of the ECHR into the HRA. Courts are departing from the paternalistic approach in Re W and greater weight is being given to the child’s Article 8 rights.
Conclusion
1 The Appellant invites the Court to uphold the appeal for the following
REASONS
1) Re W and Re M should not be followed because there are flaws in the judicial reasoning.
Re W should be overruled because it was decided before the incorporation of the ECHR into the HRA. Judicial attitudes have shifted to give greater consideration to the child’s Article 8 rights.