Are minors capable of informed consent?


In an article recently published (online-first) in the Journal of Medical Ethics, two UK-based doctors call for a sweeping review of adolescent consent protocols in British hospitals.

According to Dr Joe Brierley and Dr Victor Larcher of Great Ormond Street Hospital for Children, there is a disconnect between the complex case law on adolescent consent to treatment and the actual practice of considering the wishes of a minor.

“…Apparent distinctions between competence and capacity, consent and refusal may be difficult for clinicians to comprehend in their daily practice…The apparent divergence between the articulation of the common law and the daily experience of those providing healthcare to young people is troubling.”

Brierley and Larcher contrast a 2014 case that came before the High Court – An NHS Foundation Trust Hospital v P – with a famous case on adolescent consent from 1985 – Gillick v West Norfolk and Wisbech Area Health. In the former the Court ruled that a depressed yet certifiably capable 17-year-old could not refuse life-saving treatment deemed to be in her “best interest”.  This contrasts with Gillick, where a 16-year-old minor was deemed capable of consenting to the administering of contraceptives by doctors, even without parental consent.

Brierley and Larcher suggest there is a certain inconsistency in the way the law allows adults to make apparently irrational treatment decisions, yet limits what would appear to be more rational decisions by children:

“In adult medicine, sufficient importance is attached to the duty to respect the wishes of competent adults, even if they are held irrationally and run counter to an objective view of their welfare, that those choices will be honoured. Thus, an adult in P’s circumstances could have a refusal of rescue treatment honoured even if the consequences were an unpleasant death from liver failure. But unlike adults, in whom competence is presumed, children have to demonstrate capacity and achieve higher levels of competency than those required for adults. However, appeals to principles of fairness, justice and respect for persons would lead to the conclusion that young person who is competent to make a choice, whether voluntary informed consent or refusal, should have their choice honoured.”

The authors reference a highly influential 2003 paper by University of Manchester bioethicist John Harris, where Harris argues vigorously in favour of respect for adolescent autonomy. 




MORE ON THESE TOPICS | consent, informed consent, law, UK

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