Medical Practitioners, Adolescents and Informed Consent
The Medical Practitioners, Adolescents and Informed Consent 2011-2013 project, funded by the Nuffield Foundation, set out to clarify the current legal position as to when a young person can consent to and refuse medical treatment, and to suggest ways forward.
Currently, parents can override competent decisions to refuse treatment made by under 18 year olds. In 2009 the Department of Health issued guidance which questioned whether this was compatible with the Human Rights Act 1998.
The research team held four workshops at which legal, ethical and social science experts joined healthcare professionals from a range of specialties.
1. More research is needed on how decisions about minors who refuse medical treatment are made at a clinical level.
2. Parents can consent on behalf of a young person who lacks competence. The test for competence is vague and the threshold depends on the likely outcome of the decision.
3. The parental power to overrule a young person’s competent decision is subject to legal challenge.
4. The court can provide authority to treat a competent young person in order to protect life (Art 2 HRA) and health (Art 8(2) HRA).
5. A test case is needed, not only as a practical solution when doctors consider it to be in the best interests of young people to receive treatment they refuse, but also to resolve legal ambiguities concerning the tests for competence and best interests.
6. In the mean time, clinicians should be wary of:
- Using the possibility of court authorisation as leverage (to persuade a young person to agree to treatment) – because this may undermine the young person’s autonomy interests.
- Accepting refusals which the court might overrule - because this may not adequately protect children’s welfare. Also this may result in complaints at a later date if the decision adversely affected the young person’s quality or longevity of life.
- Relying too heavily on part of the Mental Capacity Act 2005 definition of capacity to assess the capacity of under 16 year olds. This is only one part of a two part test that was not designed to be used in isolation or in this context. Its use sets a high threshold for competence which might mean that some young people are viewed incompetent to consent, or that different tests are used for consent and refusal.
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