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Autonomy in Minor’s Consent BUT Paternalism in their Refusal: Irrational yet Justifiable.Introduction Harris’s statement means that if a child understands enough to give consent to a particular treatment, then she also understands enough to refuse it. 1 This question at hand particularly focuses on ...

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Autonomy in Minor’s Consent BUT Paternalism in their Refusal: Irrational yet Justifiable. Introduction Harris’s statement means that if a child understands enough to give consent to a particular treatment, then she also understands enough to refuse it.1 This question at hand particularly focuses on medical consent law in which, whether a minor should be entitled to the right to refuse medical treatment. To be fair, they shall be entitled as they can consent to it too at the first point. Yet, is it true at all? Thus, in this essay, we shall analyse the related cases and academics’ view to find out the answer. This topic has been greatly debated as there is always a strong tension between the children’s welfare and their best interests. The essay will be structured as follows. Before an in-depth discussion, we shall explain the overview of the law. Then, we will start from the landmark case of Gillick which ruled that the Gillickcompetent child can give consent to medical treatment without parental intervention. Next, we shall see how Lord Donaldson distinguishes minor's consent and refusal to medical treatment in the ‘Retreat’ Cases, in which he opined that the courts and parents have the power to override the minors’ refusal, even though they are Gillick-competent. In Section 4, we will see which approach does the subsequent cases follow: Autonomy or Paternalism? Then, following the enactment of the Human Rights Act 1998, are there any changes in the attitude of the courts when they again deal with such cases? In the last section, referring to the reinforcement of Re W in the latest case of NHS v P, we shall find out whether Lord Donaldson’s paternalism approach is justified and whether there is any further clarification required in this grey area. Section 1: Overview of the Law Notably, the law clearly recognized the competent adult to make a refusal of medical treatment. This can be evidenced in the case of Re C (Adult: Refusal of Treatment)2 and Sidaway v Board of Governors of the Bethlem Royal Hospital3 in which their underlying legal principle is that a competent adult has the right to refuse treatment ‘for reasons which are rational or irrational or for no reasons’. However, the legal situation for children is somewhat different from that of adults. Indeed, the law put them into two different categories: (i) children who are 16-17 years old and (ii) children under 16s. For this essay, we only focus on the England and Northern Ireland (NI) law. In order to consent, a child requires: (i) capacity; (ii) competent; and (ii) voluntariness. 4 The first two requirements are of utmost importance. For 16-17 years old children, s. 8 of the Family Law Reform Act (FLRA) 1969 and s. 4 of the Age of Majority Act (NI) Act 1969 presumed that they can decide their medical treatment just like an adult unless they are incompetent, i.e. fail to fulfill the Mental Capacity Act (MCA) 2005 or MCA (NI) 2016. Whereas, those under 16s must satisfy the Gillickcompetency test5. Since they can consent, how about to refuse? Children Act 1989 and Children Act (NI) Order 1995 clearly gives the Gillick-competent minors statutory right to refuse medical treatment BUT we shall see in the cases below that their refusal can nonetheless be overridden by inherent jurisdiction.

1 John Harris, ‘Consent and end of life decisions’ (2003) 29 Journal of Medical Ethics 10-15,12. 2 [1994] 1 All ER 819 (QBD). 3 [1885] AC 871. 4 Jonathan Herring, Medical Law and Ethics, (6th edn, Oxford University Press 2016) 198. 5 To be discussed in the next section.

Section 2: Gillick v West Norfolk and Wisbech6 Gillick is the landmark case in medical consent law as it deals with whether a minor under 16s can consent to medical treatment without parental involvement. This is disagreed by Lord Templeman and Lord Brandon who argued that sex is not what a girl under 16s needs to practice. However, Lord Scarman, Lord Bridge, and Lord Fraser had developed a legal competency test as they agreed that a minor under 16s can give consent on their behalf as long as he/she can demonstrate ‘sufficient understanding and intelligence’ of the proposed procedure.7 Such a minor is termed as ‘Gillickcompetent child’. Besides developing a competency test, the highlight of this case is the judgement made by Lord Scarman, especially, regards to the status of parental rights to Gillick-competent children. He commented that parental right to decide whether their child will or will not have medical treatment ‘terminates’ as long as the child gains sufficient understanding and intelligence.8 In other words, the Gillick-competent child has the right to consent or refuse medical treatment on their own behalf. This is greatly supported by those who fight for child’s autonomy, as it would be irrational to allow a Gillick-competent child to agree but prevent them from disagreeing. As per Eekelaar, ‘without choices’, this is merely giving them duties but not rights.9 However, we shall see in the next section how Lord Donaldson ruled differently as opposed to Gillick’s decision. Section 3: The ‘Retreat’ Cases Re R (A Minor) (Wardship: Consent to Treatment)10 and Re W (A Minor) (Medical Treatment)11 are socalled ‘retreat’ cases as Gillick only deals with whether the minor(s) have the right to consent without parent’s knowledge, but Re R and Re W deal with whether minor(s) have the right to refuse medical treatment on his/her own behalf. In the first part, we shall discuss briefly the case facts and case decisions. In Re R, the court concluded that R was not a Gillick competent child due to her ‘fluctuating competence’.12 This is not a wrong decision as she did lack the necessary maturity and understanding to make the decision herself under MCA 2005. Nonetheless, the highlight of this case is the obiter judgement made by Lord Donaldson, in which he states that no minors [by whatever age] can have the power to refuse consent to treatment.13 This, in other words, means that even if R is deemed as Gillick-competent child, she still has no power to veto treatment and the court would override her refusal due to the application of the best interests test.14 Whereas, in Re W, the refusal by a 16 years old minor to be transferred to a specialist unit for treatment had also been overridden by the judges. In this case, Lord Donaldson did not qualify the courts’ right to override the mature minor but Balcombe LJ and Nolan LJ attempted to confine the courts’ and parents’ power to override the competent minor’s refusal to cases in which the treatment is 6 [1986] AC 112. 7 Dr Clayton Ó Néill, Incapacity Notes. 8 Ibid. 188-189. 9 John Eekelar, ‘The Importance of Thinking that Children have Rights’ (1992) 6 International Journal of Law & the Family 221, 227. 10 [1992] Fam 11. 11 [1993] Fam 64. 12 Re R (n 10) 20. 13 Ibid. 84. 14 Dr Clayton Ó Néill (n 7).

necessary to prevent death or severe permanent injury. 15 From both cases, it can be argued Lord Donaldson’s paternalism approach applies to all minor(s) under 18, regardless of their competency. Section 3.1: Lord Donaldson’s distinction between consent to and refusal of? Clearly, in the ‘retreat’ cases, Lord Donaldson strongly disagreed with Lord Scarman’s judgement about parental rights and held the view that Gillick-competent children can only consent to medical treatment, but not refuse it. In this subsection, we shall see how he is ‘gloss-adding’ to Gillick and how different scholars respond to his judgement. In Re R’s obiter, Lord Donaldson first argued that Gillick does not consider the existence of ‘concurrent powers’ of consent. In supporting this, he introduced a ‘two keyholders’ approach, i.e. consent can be lawfully given by a competent minor OR those who have parental responsibility on that minor.16 Immediately in Re W, he mentioned that he regretted the ‘two keyholders’ analogy and changed it to ‘flak jacket’ analogy because the keys can both lock and unlock.17 The new analogy provides that a doctor only requires one legal authorization as protection from potential litigation. 18 Criticized by Eekelaar, among the two purposes of consent, this analogy only intends to protect the doctor from litigation but fails to respect the child's right to autonomy. 19 In regards to this point, Bainham had commented that the ‘concurrent powers’ is not workable as it will put the doctors in a difficult situation to choose between two conflicting decisions, i.e. either accept the minor’s refusal or the parent’s overridden.20 And of course, the doctors will usually give less importance to the minors’ wishes as they lack experience in making important decisions. Hence, he argued that the existence of ‘concurrent powers’ is unsatisfactory as it attempts to replace the Gillick-competency test and does not give full weight to the minor’s wishes.21 On the other hand, Gilmore and Herring commented that this principle could be possible due to different standards of competence for different ‘types’ of refusal.22 In simple terms, if a child refuses only certain treatment, they might have the competence to consent and refuse, but if he/she refuses all treatment, the child could be deemed as a lack of competence. The worse scenario is that when a child is refusing one particular life-saving treatment, it can be deemed as refusing all treatment. Thus, he/she is not Gillick-competent minor and ‘concurrent powers’ should come into picture in which her refusal can be effectively overridden.23 Next, Lord Donaldson tried to ‘distort’ Lord Scarman’s judgement and came out with a conclusion that the wider ‘right to determine’ is far different from the limited ‘right to consent’.24 In simple words, parents can give consent while minors refuse but they cannot determine that the child should

15 Emily Jackson, ‘Medical Law Text, Cases, and Materials’ (4th edn, Oxford University Press, 2016) 308. 16 Re R (n 10) 68 17 Re W (n 11) 77-78. 18 Herring (n 3) 202 19 John Eekelaar, ‘White Coats or Flat Jackets? Children and the Courts Again’ (1993) 109 Law Quarterly Review 182-7. 20 Andrew Bainham, ‘The Judge and the Competent Minor’ (1992) 108 LQR 194, 198. 21 Ibid. 22 Stephen Gilmore and Jonathan Herring, ‘Children’s refusal of medical treatment: Could Re W be distinguished?’ (2011) 41 Family Law 715-7. 23 Ibid. 8-15 24 Ibid. 22-23

not be treated, i.e. they cannot refuse while the minor consent to the treatment.25 As such, Lord Donaldson seems to retain parental rights purposely to override minor’s refusal and yet Kennedy described it as ‘driving a coach and horse through Gillick’.26 Nonetheless, Douglas argued that there is no difference between the ‘right to determine’ and the ‘right to consent’.27 He criticised that the courts only focus on overriding a child's refusal without careful consideration of what is actually in their best interest. But, as mentioned by Lowe and Juss, the doctor is always acting in the patient’s best interest and thus it is definitely no wrong for the court to be reluctant to allow a minor [of whatever age] to be able to veto treatment designed for his or her benefit, in particular refusal of life-saving treatment.28 In brief, Gillick is heading towards autonomy but the ‘retreat’ cases are paternalism. One might say that the distinction is pointless and Re R and Re W shall not be deemed as a ‘threat’ to Gillick as Lord Donaldson’s judgement is merely obiter dicta. Yet, we can see from the subsequent cases that the judges indeed prefer the paternalistic approach rather than the autonomy approach when they are dealing with such cases. Section 4: Other Minor’s Refusal Cases: Proving of Paternalistic. Indeed, there are not many minor’s refusal treatment cases reaching the court as they will eventually change their minds and consent to the treatment.29 And thus, we shall analyse the following limited cases and see what is the real attitude of the courts and how the judges ignored or manipulated legal test in order to make those Gillick-competent child ‘incompetent’ and then override their refusal. First, the case of Hannah Jones, a 13 years old girl who refused heart transplant due to her battle with leukemia but changed her mind atlas to accept the treatment. To be noted here, there is an approximately 5% risk for the operation to be carried out and the anti-rejection drugs would weaken her immune system which will then leave her vulnerable to a recurrence of leukaemia. 30 Eventually, this case was not brought to the court and thus it is assumed that the Child Protection Officer had concluded that Hannah was competent and that accepting her refusal was in her best interest. Prima facie, one might say that she successfully won her right to refuse. But, the author shall say that, in any event, if her case is brought to the court, the judge will nonetheless override her decision. To support this statement, we shall see Re M (Medical Treatment: Consent)31. Re M shares a very similar case fact with Hannah Jones. In this case, Johnson J recognised M’s competence but ignored it and went on to override her refusal given the reason that her sudden deterioration was far different from Hannah who had been ill since she was five.32 Hence, it can be argued that neither Gillick nor Re W decisions had been followed as Johnson J did not even consider 25 Ibid. 26 Ian Kennedy, ‘Consent to Treatment: The Capable Person’ in Clare Dyer (ed), Doctors, Patients and the Law (Blackwell Scientific Publications 1992) 60. 27 Gillian Douglas, ‘The Retreat from Gillick’ (1992) 55(4) MLR 569, 575. 28 Nigel Lowe and Satvinder Juss, ‘Medical Treatment-Pragmatism and the Search for Principle (1993) 56 Modern Law Review 865-72. 29 Emma Cave, ‘Young People Who Refuse Life Sustaining Treatment’ (Nuffield Foundation, University of Leeds 2011-2013) 3. 30 Birch, Jessica, Alice, ‘Mature Minors and the Refusal of Medical Treatment: A Misuse of Gillick’, Durham theses, Durham University, Available at http://etheses.dur.ac.uk/12354/, assessed at 28 March 2020. 20. 31 [1999] 2 FLR 1097. 32 Ibid. 1100.

the minor’s competence. Commented by Birch, such ignorance is intended by the courts as it is always less controversial to override an incompetent minor rather than the competent one. 33 In short, Re M had caused great confusion in medical consent law as it intends to give a meaning that Gillickcompetent test is not required in minor’s refusal treatment cases. Yet, this is not the end, the situation is even worse in the following cases: Re E (A Minor) (Wardship: Medical Treatment)34 and Re L (Medical Treatment: Gillick Competence)35. Both Re E and Re L involve mature minors who sought to refuse life-saving blood transfusions due to their religious belief, i.e. Jehovah’s Witness. Judges in both cases recognised their mature and intelligence but still deemed them as ‘Gillick-incompetent children’, given the reason they lack ‘actual’ understanding of the nature of their deaths.36 This is heavily criticised as they had never been provided with such information and competence does not even require an actual understanding.37 Not only the minors, it would also be difficult for the adults to obtain an actual understanding of certain information, in which they might fail to satisfy the competency test as well.38 As such, we should note that the courts are indeed avoiding ruling based on Lord Donaldson’s judgement in Re W but manipulated Gillick-competency tests for their ‘paternalistic advantage’.39 Section 5: Human Rights Act (HRA) 1998 and Child’s Right to Autonomy. There has been a big turning point since the incorporation of the ECHR into UK law through the enactment of HRA 1998. In this section, we shall especially examine the Article 8 rights under the Convention (right to respect for private and family life) and whether minors' Article 8 should be respected by doctors and the courts. Prima facie, after the enactment, the UK courts are indeed moving towards a much more autonomous approach. This can be evidenced in the case of R (Axon) v Secretary of State for Health40 where Silber J affirmed that parents’ Articles 8 rights should be extinguished from a Gillick-competent child.41 It seems supporting Gillick's decision as to why the parents still retain parental power under Article 8 to override their competent child’s decisions. Nonetheless, this idea has been quickly denied by Taylor, saved for two reasons: (i) Gillick deals with child’s rights but not Article 8’s rights, and (ii) ‘Family life’ is never extinguished from Gillick-competent childs as they are still considered as dependent on their families.42 But, this has been counter-argued by Mattern who pointed out that European law is always precedence over national law and thus upholding child’s Article 8 rights has a direct effect in protecting their right to autonomy. Second, the child's dependency level on family will decrease when their level of understanding and maturity increases.43

33 Birch, Jessica, Alice (n 30). 34 [1993] 1 FLR 386. 35 [1998] 2 FLR 810. 36 Ibid. 813 37 Birch, Jessica, Alice (n 30). 41. 38 Andrew Bainham (n 24). 200. 39 Emma Cave, ‘Adolescent consent and confidentiality in the UK’ (2009) 16(4) European Journal of Health Law 309, 316. 40 [2006] EWHC 37. 41 Ibid. 580 42 Rachel Taylor, ‘Reversing the Retreat from Gillick? R (Axon) v Secretary of State for Health’ (2007) 19 CFLQ 81, 87. 43 Eli Mattern, ‘A Child’s Lack of Autonomy in Medical Treatment: A Myth or Just Part of the ‘Procedure’? Aug, 24,2011, assessed on 31st March 2020.

Notably, Axon did prove that a child's rights of autonomy is important but this is not the case where a child is dealing with a life or death situation and the UK Courts have yet to allow a minor to refuse life-saving treatment. As per Cave argued, no child can be deemed as Gillick-competent in this situation as the standard has been set too high. Perhaps, it is time to discuss about the recent case of Re P (Medical Treatment: Best Interests) 44 and NHS Foundation Hospital v P45. In Re P, a nearly 17-year-old Jehovah’s Witness refused a blood transfusion. Again, ignoring the minor’s competence, Johnson J ruled that the treatment would be in P’s best interests due to the judiciary’s duty to ‘preserve’ minors until they reach the age of majority (18 years old). 46 Yet, Johnson J neither mentioned about Gillick, MCA test nor any rights under ECHR. Whereas, in the latter case, Baker J reinforced Lord Donaldson’s judgement in Re W in which he recognised the patient’s capacity under MCA 2005, but it would still be lawful to give antidote treatment to the minor. Besides, he clearly mentioned two important points in this case. First, the court must have the child’s welfare as its paramount consideration and second, the children’s rights under the Articles of the ECHR can always be outweighed by Article 2, right to life, by the court.47 Hence, we shall say that in minor’s refusal treatment cases, the courts have no intention to move away from the paternalism approach. Section 6: So, Still Paternalistic Approach? Say, Re W has been reinforced in the latest case. Question arises as to: Is Lord Donaldson’s paternalistic approach correct and legitimate to be followed by the subsequent future cases? In this section, we shall first talk about some academics’ view of paternalism and then go on to discuss whether further clarification is required in this area. In fact, there are many scholars who greatly criticised Lord Donaldson’s paternalistic approach. For example, Kennedy argued that minor’s right to consent and refusal are simply twin aspects of a single right to self-determination, Lord Donaldson’s failure to accept the minor’s power to refuse is same as failure to observe the power to consent medical treatment.48 Besides, Elliston also mentioned that Lord Donaldson’s ‘gloss’ means that the childrens’ medical decisions will be respected only if ‘they know what is good for them’, in which she said this is both illogical and unjust as it suggests that the children are less entitled to full respect as members of our society. 49 On the other hand, some scholars are in support of it. For example, Ross who argued that children lack life experience to make some ‘important’ decisions which related to their lives, especially refusal to medical treatment.50. Despite the above, the author at most agrees with Be...