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Adolescents (Legal Principles (Right to life vs autonomy/ Right to private…
Adolescents
Legal Principles
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Lord Donaldson: 2 reasons for requiring consent to medical treatment. 1) 'clinical' reason (it makes treatment easier) 2) 'legal reason' (flak jacket) provides those concerned in treatment with a defence .
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Logical consequence: could force a competent 16yr old, who refuses a termination, to have one. Though Balcombe LJ in Re W 1993 said that "the dilemma is more apparent than real" and can't imagine a case where a court would authorise that.
Inherent Jurisdiction gives the court the power to authorise the use of reasonable force in order to ensure a child receives the treatment in question. Only when it is a therapeutic necessity (otherwise might breach art 3 ECHR)
Use of force: Could be challenged under Art 5 (right to liberty and security). Detention of persons with 'unsound mind' can be justified under 5(1)(e).
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Types of interest that a child might claim: basic, developmental, autonomy (could conflict?)
Joseph Raz has argued that 'a law creates a right if it is based on and expresses the view that someone has an interest which is sufficient grounds for holding another to be subject to a duty'
Academic Critique
Caroline Bridge 1999: Judges should not go through the pretence of a functional test for capacity when the outcome of the young person's decision is not one that they, or probably society, would countenance. The law should openly declare that welfare reigns…and adolescent autonomy is, inevitably, circumscribed.
Andrew Grubb 1999 The court acknowledges that citizens must be allowed to make decisions that others might perceive as harmful to them. That point is the age of majority, which for us is 18… Until that point, however, the protective duty of society permits intervention. If this is the public policy of this country, it would be far better for the courts… simply to say so rather than to obfuscate matters by distorting the legal concept of competence
John Eekelaar 1993 Lord Donaldson's comment about flak jackets was an 'astonishingly narrow view' of the legal function of consent. If consent is a way of respecting autonomy, then under 18s should have the capacity to say no as well as yes to treatment. "is surely rooted in the fundamental civil rights of all citizens that their personal integrity should not be infringed with without their consent or lawful justification". Lord Donaldson's primary concern seems to be to protect doctors from legal action.
John Harris 2003 "The idea that a child (or anyone) might competently consent to a treatment but not be competent to refuse it is palpable nonsense… To understand a proposed treatment well enough to consent to it is to understand the consequences of a refusal"
Sarah Elliston 1996 The law for under 18s means their medical treatment decisions are respected if "they know what is good for them and accept the treatment that is proposed". "Such a situation is both illogical and unjust… it suggests children are in some way less entitled to respect as members of our society by virtue of their status"
Jane Fortin 2001 Practical implications of forcing a fully grown adolescent to have treatment he doesn't want.
Charles Foster and Jose Miola 2015 'Abortion is a rather special type of 'treatment'. It cannot be lumped together with appendectomies.'
Faye Tucker 2016 "As children become adolescents, they get closer to being self-governing agents and, therefore, paternalism ought to be gradually rolled back… Cultivation of a young person's capacity for self-governance provides the best justification of transitional paternalism"
Jane Fortin 2001 (Re use of force) "it might survive an article 5 challenge by turning to article 2 for a solution, when confronted by a teenager refusing life-saving treatment."
C. Smith 1997 ‘we are not prepared to withdraw our protection or to abandon the legal distinction between children and adults. To do so would strike at the very heart of the adult-child relationship which enables adults to locate themselves emointally, as being affectionate, caring , protective, and socially, as being responsible for moulding the next generation of citizens.’
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Statutory Law
Mental Capacity Act 2005 applies to anyone over 16. If a 16/17 yr old lacks capacity, they should be treated in their best interests.
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S8: their consent to medical treatment shall be as effective as it would be if they were an adult (applies to diagnosis and treatment - not organ donation/non-therapeutic research which would be governed by Gillick competency)
Controversial: Does S8 apply to consent only or to refusal as well? But it does only specify consent. So, does it only function to protect doctors?
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