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Goodbye Gillick? Identifying and resolving problems with the concept of child competence

  • Emma Cave (a1)

Abstract

The landmark decision of Gillick v West Norfolk Area Health Authority was a victory for advocates of adolescent autonomy. It established a test by which the court could measure children's competence with a view to them authorising medical treatment. However, application of the test by clinicians reveals a number of ambiguities which are compounded by subsequent interpretation of Gillick in the law courts. What must be understood by minors in order for them to be deemed competent? At what point in the consent process should competence be assessed? Does competence confer on minors the authority to refuse as well as to accept medical treatment? These are questions which vex clinicians, minors and their families. A growing number of commentators favour application of parts of the Mental Capacity Act 2005 to minors. In this paper, the limitations of this approach are exposed and more radical reform is proposed.

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Corresponding author

Emma Cave, Senior Lecturer in Law, University of Leeds, Liberty Building, School of Law, University of Leeds, Leeds LS29JT, UK. Email: laweggc@leeds.ac.uk

Footnotes

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*

I am grateful to the Nuffield Foundation which supports the ‘Medical Practitioners, Adolescents and Informed Consent’ project 2011–2012, and to the project participants. The Nuffield Foundation is a charitable trust with the aim of advancing social well-being. It funds research and provides expertise, predominantly in social policy and education. It has supported this project, but the views expressed are those of the authors and not necessarily those of the Foundation. More information is available at www.nuffieldfoundation.org. I am also very grateful to the reviewers for their very helpful comments.

Footnotes

References

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Notes

1. [1986] AC 112.

2. Fortin, JThe Gillick decision – not just a high water mark’ in Gilmore, S Herring, J and Probert, R (eds) Landmark Cases in Family Law (Oxford: Hart Publications, 2011).

3. [1986] AC 112 [253].

4. Hart, Hla Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982) p 183.

5. The Medical Practitioners, Adolescents and Informed Consent Project, funded by the Nuffield Foundation. See http://www.law.leeds.ac.uk/research/projects/medical-practitioners-adolescents-and-informed-consent.php (accessed 8 February 2013).

6. Protected by virtue of the Children Act 1989, s 1(1).

7. For example, first on the ‘welfare checklist’ in the Children Act 1989, s 1(3) is the court's requirement to take into account the ascertainable wishes and feelings of the child (considered in the light of his age and understanding). This applies in relation to care proceedings and opposed applications for s 8 orders.

8. DL v A Local Authority [2012] EWCA Civ 253.

9. Her Honour Pearce Nasreen ‘Mental Capacity Act 2005: not the Children Act for grown ups’ [2011] July Fam L 697.

10. Mental Capacity Act 2005, s 1(2).

11. Ibid, s 1(3).

12. Children Act 1989, s 1.

13. Mental Capacity Act 2005, s 4.

14. [2006] Ewhc 37 (Admin).

15. See eg Re Roddy (A Child) (Identification: Restriction on Publication) [2003] Ewhc 2927 (Fam); Mabon v Mabon [2005] EWCA Civ 634.

16. Neatly summarised in Gilmore, S and Herring, J“No” is the hardest word: consent and children's autonomy’ (2011) 23 Child & Fam L Q 3, p 4.

17. [1986] AC 112 [186] per Lord Scarman: ‘[the] parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and maturity’.

18. Murphy, JW(h)ither adolescent autonomy?’ (1992) 14(6) J Soc Welfare & Fam L 529, 531.

19. Re R (A Minor) (Wardship: Consent to Medical Treatment) [1992] Fam 11, [1992] 1 FLR 190, [1991] 4 All ER 177.

20. Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1993] Fam 64, [1993] 1 FLR 1.

21. Department of Health Reference Guide to Consent for Examination or Treatment (2nd edn, 2009), ch 3, para 15.

22. Cave, EAdolescent consent and confidentiality in the Uk’ (2009) 16(4) Eur J Healthcare L 309.

23. Re R (A Minor) (Wardship: Consent to Medical Treatment) [1992] Fam 11, [25] per Lord Donaldson MR.

24. [1998] 2 FLR 810.

25. (1990) 9 Bmlr 1.

26. Brazier, M and Bridge, CCoercion or caring: analysing adolescent autonomy’ (1996) 16 LS 84.

27. [2011] Ewhc 101 (COP), [18].

28. [1986] Ac 112, [186], my italics.

29. Ibid, at [169], my italics.

30. Mental Capacity Act 2005, s 3.

31. Ibid, s 1(3).

32. [1993] Fam 64.

33. Ibid, at [77] per Lord Donaldson MR.

34. Flra 1969, s 8(3). Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.

35. [1993] Fam 64, [86].

36. McFarlane, AMental capacity: one standard for all ages’ [2011] 41 Fam L 479, p 484; ‘… the provision in FLRA 1969, s 8 relates only to giving rather than refusing consent …’.

37. [1993] Fam 64, [88].

38. Cave, E and Wallbank, JMinors' capacity to refuse treatment: a reply to Gilmore and Herring’ (2012) 20(3) Med L Rev 423.

39. [1986] AC 112, [253].

40. Ibid, at [189D].

41. Prout, A and James, AA new paradigm for the sociology of childhood?’ In James, A and Prout, A (eds) Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood (London: Routledge/Falmer, 1990) pp 733.

42. Re L (Medical Treatment: Gillick Competency) [1998] 2 FLR 810.

43. Chester v Afshar [2004] UKHL 41.

44. O'Neill, OChildren's rights and children's lives’ (1998) 98 Ethics 445.

45. Feinberg, JA child's right to an open future’ in Aiken, W and LaFollette, H (eds) Whose Child? Parental Rights, Parental Authority and State Power (Totowa, NJ: Littlefield, Adams, 1980) pp 124153.

46. Brazier, M and Miola, JBye-bye Bolam: a medical litigation revolution?’ (2000) 8 Med L Rev 85, p 94.

47. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

48. Teff, HThe standard of care in medical negligence: moving on from Bolam?’ (1998) 18(3) Oxford J Legal Stud 473.

49. Brazier and Miola, above n 47, p 94.

50. Ibid., p 95.

51. Bolitho v City and Hackney Health Authority [1997] 4 All ER 771.

52. Choudhry, S and Fenwick, HTaking the rights of parents and children seriously: confronting the welfare principle under the Human Rights Act’ (2005) 25 Oxford J Legal Stud 253.

53. Mental Health Act 1983, s 83: ‘… consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being a form of treatment to which ss 57, 58 or 58A applies, if the treatment if given by or under the direction of the responsible medical officer’.

54. Article 8(1): Everyone has the right to respect for his private and family life, his home and his correspondence.

55. R (Axon) v Secretary of State for Health [2006] EWHC 37 (Admin); Mabon v Mabon [2005] EWCA Civ 634.

56. Fortin, J Children's Rights and the Developing Law (Cambridge: Cambridge University Press, 2009) p 113. See also Cave, above n 23.

57. [2006] Ewhc 37 (Admin), [79].

58. Rights of Children and Young Persons (Wales) Measure 2011.

59. I Lewis and C Lenehan (co-chairs) Report of the Children and Young People's Health Outcomes Forum (July 2012).

60. 9th Council of Europe Conference of Health Ministers Child-Friendly Healthcare: Building a Health Future for and with Children (Lisbon, 2011).

61. Article 3(1): In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

62. Article 12(1): States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

63. Eekelaar, JThe interests of the child and the child's wishes: the role of dynamic self-determinism’ (1994) 8 Int'l J L & Fam 42.

64. Savulescu, J and Momeyer, RwShould informed consent be based on rational beliefs?’ (1997) 23 J Med Ethics 282.

65. Mental Capacity Act 2005, s 2(3).

66. See eg Re Roddy (A Child) (Identification: Restriction on Publication) [2003] Ewhc 2927 (Fam).

67. Fortin, JChildren's rights – substance or spin?’ (2006) 36 Fam L 757; a Hall ‘Children's rights, parents' wishes and the state: the medical treatment of children’ (2006) 6 Fam L 317; Cave, above n 23.

68. [2006] Ewhc 37 (Admin), [79]. See discussion in Taylor, RReversing the retreat from Gillick? R (Axon) v Secretary of State for Health ’ (2007) 19 Child & Fam L Q 81.

69. (1988) 11 Ehrr 175.

70. [2005] Ewca Civ 634, [26].

71. See eg Commissioner for Human Rights Who Gets to Decide? Rights to Legal Capacity for Persons with Intellectual and Psychosocial Disabilities (Strasbourg: Council of Europe, 2012) CommDH/IssuePaper (2012)2.

72. See eg National Disability Rights Network Devaluing People with Disabilities: Medical Procedures that Violate Civil Rights (May 2012).

73. New South Wales Law Reform Commission Young People and Consent to Healthcare (Rpt. 119, 2008).

74. Ibid., rec. 4.

75. Ibid.

76. Elliston, S The Best Interests of the Child in Healthcare (London: Routledge Cavendish, 2007) p 112.

77. Age of Legal Capacity (Scotland) Act 1991, s 2(4).

78. Though recently there are signs of change: Chester v Afshar [2004] UKHL 41, [24] where Lord Steyn recognised the role of informed consent in protecting the patient's right to autonomy and dignity.

79. General Medical Council 0–18: Guidance for all Doctors (London: GMC, 2007).

80. Department of Health, above n 22.

81. BMA Consent, Rights and Choices in Health Care for Children and Young People (2007); Children and Young Person Toolkit (2011).

82. See eg Kennedy, IConsent to treatment: the capable person’ in Dyer, C (ed) Doctors, Patients and the Law (Oxford: Oxford University Press, 1992) p 60.

83. Grimwood, TGillick and the consent of minors: contraceptive advice and treatment in New Zealand’ (2010) 40 VUW L Rev 743.

84. New South Wales Law Reform Commission Young People and Consent to Healthcare (Rpt. 119, 2008), para 5.4.

85. Ibid, para 5.4.

86. Teoludzka, A and Bartholemew, TpQueensland general practitioners' applications of the “mature minor” principle: the role of patient age and gender’ (2010) 18(2) J Med L 390.

87. See eg Ashteka, Cs etal ‘How much do junior staff know about common legal situations in paediatrics?’ (2007) 33(5) Child Care Health Dev 631.

88. See eg E Grice ‘Hannah Jones: “I have been in hospital too much”’ The Telegraph, 12 November 2008.

89. Donnelly, M and Kilkelly, UChild-friendly healthcare: delivering on the right to be heard’ (2011) 19(1) Med L Rev 27.

90. Cave, above n 23; Loughrey, JCan you keep a secret?’ (2008) 20(3) Child & Fam L Q 312.

91. Though minors' attitudes to compulsion is more dependent on their relationship with parents and clinicians than the degree of compulsion. See Tan, Joa etal ‘Attitudes of patients with anorexia nervosa to compulsory treatment and coercion’ (2010) 33 Int'l J L & Psychiatry 13.

92. Alderson, P and Montgomery, J Health Care Choices: Making Decisions with Children (London: Institute for Public Policy Research, 1996).

93. Nozick, RCoercion’ in Morgenbesser, S, Suppes, P and White, M (eds) Philosophy, Science, and Method: Essays in Honor of Ernest Nagel (New York: St Martin's Press, 1969) p 440.

94. Thaler, Rt and Sunstein, Cr Nudge: Improving Decisions about Health, Wealth and Happiness (London: Penguin, 2008).

95. See O'Neil, O Autonomy and Trust in Bioethics (Cambridge: Cambridge University Press, 2002) p 97.

96. AC v Manitoba (Director of Child and Family Services) 2009 SCC 30.

97. Ibid, at [4].

98. Ibid, at [87].

99. In support, see Brighouse, HHow should children be heard?’ (2003) Fall Ariz L Rev 691.

100. Archard, D and Skivenes, MBalancing a child's best interests and a child's views’ (2009) 17(1) Int'l J Children's Rights 1.

101. An argument I explored in Cave, EMaximisation of a minors' capacity’ (2011) 4 Child & Fam L Q 42.

102. McFarlane, above n 37; and see Chico, V and Hagger, LThe Mental Capacity Act 2005 and mature minors: a missed opportunity?’ (2011) 33(2) J Soc Welfare & Fam L 157.

103. Mental Capacity Act 2005, s 1(5).

104. Brazier and Bridge, above n 27, pp 85, 91.

105. Ibid, p 109.

106. McFarlane, above n 37, p 484.

107. Ibid, p 485.

108. Ibid, p 484.

109. Ibid, p 484.

110. Ibid, p 484.

111. Ibid, p 484.

112. See discussion in Gilmore and Herring, above n 17, p 12.

113. Chico and Hagger, above n 103, p 165. They recognise that restrictions on minors' autonomy rights would be necessary, p 166.

114. Health Care Consent Act 1996, s 4(2).

115. Ibid, s 15(1).

116. Mental Capacity Act 2005, ss 1(5) and 3(2).

117. Law Comm Report No 231 Mental Incapacity (London, 1995) para 2.52.

118. See eg Sa (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam); LA X v MM and KM [2007] EWHC 2003 (Fam); A LA v A [2010] EWHC 978 (Fam); A LA v Mrs A [2010] EWHC 1549 (Fam).

119. DL v A Local Authority [2012] EWCA Civ 253. And see Sa (a Vulnerable Adult) [2005] EWHC 2942; A Local Authority and Mrs a [2010] EWHC 1549; and L v J [2010] EWHC 2665.

120. [2005] Ewhc 2942 (Fam).

121. Ibid, at [83].

122. [2012] Ewca Civ 253, [53], [64].

123. [2005] Ewhc 2942 (Fam), [37].

124. DL v A Local Authority [2011] EWHC 1122 (Fam), per Theis J [6].

125. Coggon, JVaried and principled understandings of autonomy in English law: justifiable inconsistency or blinkered moralism?’ (2007) 15(3) Healthcare Analysis 235.

126. [2012] Ewca Civ 253, [66].

127. See Commissioner for Human Rights, above n 72.

128. Donnelly, M Healthcare Decision-Making and the Law: Autonomy, Capacity and the Limits of Liberalism (Cambridge: Cambridge University Press, 2010) ch 2.

129. Maclean, S Autonomy, Consent and the Law (London: Routledge-Cavendish, 2009); Beyleveld, D and Brownsword, R Consent in the Law (Oxford: Hart Publishing, 2007); Maclean, A Autonomy, Informed Consent and Medical Law: A Relational Challenge (Cambridge: Cambridge University Press, 2009).

130. See eg Alderson, PCompetent children? Minors' consent to health care treatment and research’ (2007) 65 Soc Sci & Med 2272.

131. McFarlane, above n 37, p 484.

* I am grateful to the Nuffield Foundation which supports the ‘Medical Practitioners, Adolescents and Informed Consent’ project 2011–2012, and to the project participants. The Nuffield Foundation is a charitable trust with the aim of advancing social well-being. It funds research and provides expertise, predominantly in social policy and education. It has supported this project, but the views expressed are those of the authors and not necessarily those of the Foundation. More information is available at www.nuffieldfoundation.org. I am also very grateful to the reviewers for their very helpful comments.

Goodbye Gillick? Identifying and resolving problems with the concept of child competence

  • Emma Cave (a1)

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