CAN A CHILD CONSENT TO MEDICAL TREATMENT?

“Miserable must the condition of minors be; excluded from society and commerce of the world; deprived of necessaries, education, employment and many advantages; if they could not do binding acts. Great inconvenience must arise to others if they were bound by no act.” Lord Mansfield in Zouch v Parsons (1765) 3 Burr 1794.

It might seem unusual to question a parent’s or guardian’s right to exercise control over his children. Such a right is almost universally and unquestionably accepted as naturally incidental to, and being derived from a parent’s or guardian’s duty to maintain, protect and educate the child. In the realm of medical treatment, it might seem even more peculiar to question the right of a parent or guardian to consent to treatment on the child’s behalf, as minors (persons under the age of 18 years) are generally not considered to have the required mental competence for such consent. Prior to 1985, it was therefore the law that, as a general proposition, the provision of medical treatment to a minor required consent by a parent or guardian. Such consent was required until the child reached the age of majority, which, in Trinidad and Tobago, is 18 years.

In 1985, this general proposition was challenged in the United Kingdom in the landmark case of Gillick v West Norfolk and Wisbech Area Health Authority (1986) AC 112. In that case, the House of Lords — the highest court in English judicial system — decided, by a majority, that a minor could be considered competent and thereby possessing the capacity to consent to medical treatment or examination on his or her own. In fact, the court in that case went as far as to hold that where a child was found to be so competent, a doctor had to follow such child’s instructions as to medical treatment, over and above any contrary views of his parents or guardians.

Their Lordships held that competence, for the purposes of medical treatment, is established if the child achieves sufficient understanding and intelligence to enable him to fully appreciate what his medical practitioner is proposing to be in his best interest and welfare. This issue of whether any given minor possesses such competence is a question of fact and is a determination that has to be made by the attending medical practitioner. In determining a minor’s competence, medical practitioners must give due regard to the child’s capacity to understand the nature of the advice being given, as well as to the mental and emotional state of the child. Where death can result from lack of the proposed medical treatment, the practitioner must be satisfied that the minor also understands the manner of likely death, along with the pain and distress involved.

Minors who satisfy these requirements are now referred to in law as “Gillick competent” minors. The Gillick case, being a decision of the United Kingdom, is not binding on our local courts. In as much as it is a decision of the highest court in the English judicial system, however, it would be of persuasive authority and will, no doubt, be easily followed by our local courts although to date, no case has yet been determined on the issue in our local courts. Clearly, the effect of this landmark decision is to allow minors to access medical treatment and information which, in the opinion of the attending medical practitioner, is considered to be in the best interest and welfare of the minor. As stated earlier, it applies even where the parent refuses to consent. Consequently, the rights of a Gillick competent child over-ride the rights of his parents or guardian. The Gillick decision therefore overthrows absolute parental authority to control a minor, at least in relation to medical treatment.

Furthermore, the Gillick decision entrusts medical practitioners with greater discretionary powers extending beyond strict applications of clinical judgment. It imposes a greater responsibility on them to determine the competence of a minor, since a failure to ensure the proper application of the Gillick test can expose a medical practitioner to serious legal liability. It is a responsibility, the discharge of which must therefore be approached with great caution. The medical practitioner will also owe a duty of confidentiality to a Gillick competent child not to release any medical information to his parent or guardian without his consent.

In fact, the Gillick principle was applied in the case of Re Angela Roddy (A Minor) [2004] E.M.L.R. 8, enabling a minor to make an informed decision as to what medical information should remain private. The Gillick decision has been considered a victory for the rights of children. At the same time, it has disturbed previously well-settled views and approaches to medical treatment of children. More than that, it now exposes the medical profession to circumstances that can be far from ideal. And, if nothing else, it has the potential to exacerbate underlying family tensions over methods of treating children which, ultimately, can impact negatively on a minor’s recovery.

Therefore, the best approach for all concerned would be to attempt to obtain consensus among both parents and children as to a recommended course of treatment. This should apply even where it appears that the child is Gillick competent. It does nothing to undermine the principle of minor self-autonomy merely to have parents concur in a recommended course of treatment that has already been agreed to by a Gillick competent minor. Indeed, where the child refuses to involve a parent in the decision, the medical practitioner should make every effort to persuade the child to do so. Often, a parent may misguidedly seek legal redress simply because there is a feeling of exclusion and a lack of understanding of the nature and effect of certain treatments.

Where this is not possible, and the minor refuses to involve the parent or guardian, or where the parent or guardian refuses to reach a consensus regarding a recommended course of medical treatment, the medical practitioner must then decide whether to apply the Gillick competence test. It is noteworthy, however, that the right of a Gillick competent minor to consent to medical treatment does not include a right to refuse treatment (decided per incuriam in Re W (1992) 4 All ER 627). Therefore, no Gillick competent minor of any age has the power, by refusing to consent to treatment, to override consent by a parent or guardian and a fortiori consent by a court.

It has also been decided that the court, in the exercise of its inherent unlimited jurisdiction over minors, can objectively, in the child’s own best interest, override the wishes of a Gillick competent child who has refused treatment in circumstances which would in all probability lead to the death of the child or to severe permanent injury (although, in reaching its decision, the court is required to be mindful of the minor’s wishes). In the final analysis, the decision in Gillick might perhaps best be regarded, not as an abolition of a parent’s or guardian’s authority over his child, but instead as a recognition and reinforcement of the paramount importance of the welfare of a child and the preservation of life. As it has been said, “In a democracy, dissent is an act of faith. Like medicine, the test of its value is not in its taste but in its effect.” (JW Fulbright).

Wendy Ramkerrysingh, Attorney at Law, LLB (Hons), LEC, LLM