Adolescent autonomy revisited: clinicians need clearer guidance

Abstract

In 1996, Brazier and Bridge raised the question 'is adolescent autonomy truly dead and buried' following judicial decisions which had seemed to reverse the Gillick-inspired trend for greater child autonomy in healthcare. Subsequent decisions by the courts have reinforced the view that those below 18 years in England and Wales remain children with limited rights to refuse treatment compared with adults. This is at variance with the daily experience of those working with young people who increasingly seek to actively involve them in making freely informed decisions about their healthcare, in accordance with the principles enunciated in the UN Convention of the Rights of the Child and the UK Children Acts. We review the derivation of the law in England and Wales in this area, in the light of another recent family court judgement enforcing treatment on a 'competent' child without his or her consent and ask: 'How can the Common Law and the ethical practice of those caring for young people have diverged so far?' Either young people can decide whether to have a recommended treatment, or they cannot. Given Ian McEwan's book, the Children Act, has stimulated wider social debate in this area might this be an opportune moment to seek public policy resolution with regards to healthcare decision making by young people? We argue that events since the Gillick case have underlined the need for a comprehensive review of legal policy and practice in this area. While absolute autonomy and freedom of choice are arguably inconsistent with the protection rights that society has agreed are owed to children, healthcare practitioners need clarity over the circumstances in which society expects that autonomous choices of adolescents can be overridden.

Challenges in managing parental expectations in paediatric care

“…The UK Gillick standard determines that children of an age can consent to medical treatments held to be in their best interests by the professional if they are competent (Gillick v West Norfolk and Wisbech Area Health Authority ; Brierley & Larcher, ), whereas under the Family Reform Act 1987, a young person of over 16 years of age has the right to give consent unless they are clearly not competent (Brierley & Larcher, ; UK Parliament, ). However, parents or others with parental responsibility can consent until a person reaches 18 years of age, after which no‐one can consent for them!…”

“…Neonates and small children are clearly not autonomous individuals; therefore, parents are usually considered as their surrogates. As children develop, in most countries their ability to consent to medical procedures increases, but different jurisdictions take different views on allowing children to refuse medical treatment which someone else consents to (Brierley & Larcher, ). What is clear is that Article 12 of the UNCRC states that children have the right to participate in decision‐making processes that may be relevant in their lives and to influence decisions taken (United Nations ).…”

Giving Children’s Views “Due Weight” in Medical Law

“…Yet to authorities in the UK today, children's views appear to have some weight in surgical decisions, less in medical decisions, little in all other aspects of their lives, and none in the few reported medical-legal court cases. More research evidence is urgently needed to address the current confusions (Brierley and Larcher, 2016). The legal cases may give a misleading picture, however.…”

Consent in children’s intensive care: the voices of the parents of critically ill children and those caring for them

“…Children aged over 16 are presumed to such capacity unless proven otherwise,11 whereas those under 16 years can prove themselves competent if they can demonstrate intellectual maturity, emotional maturity and understanding of the nature of the treatment 12. However, someone with parental responsibility may over-ride anyone under 18-year-old’s decision to refuse a treatment 13…”