Mature Teenagers: What makes them “mature” and should they be allowed to consent to medical treatment?
The Law Reform Commission’s recent report on “Children and the Law: Medical Treatment” published on 25 July 2011 has sought welcomed clarification on the existing law on consent to medical treatment for children under the age of 18 years and has also provided a draft Bill.
The report is aimed at:
1. Clarifying the existing law on consent to and refusals of treatment by 16 and 17 year olds;
2. Ensuring that mature minors have their views fully taken into account when they seek medical treatment; and
3. Providing clarity to parents, guardians and health care professionals when treating minors.
The report recognises certain rights and principles arising under the Constitution and International Human Rights Conventions, in particular, the family as a fundamental unit of society; limitation of the State’s intervention in medical treatment to exceptional circumstances; and the need to take into account the rights and best interests of the child.
Among the recommendations are the following:
1. 16 and 17 year olds should be presumed to have full capacity to consent to and refuse health care and medical treatment including advice, over the counter medicine, surgery, access to contraception and mental health services;
2. Under 16 year olds should not be presumed competent to consent to, or refuse medical treatment but in exceptional circumstances they may be able to give their consent or refusal based on an assessment of their maturity and a presumption that their parents or guardians will usually be involved;
3. Where any person under 18 refuses life-sustaining treatment, an application to the High Court would be required to decide on the validity of any such refusal;
4. The Mental Health Act 2001 should be amended to make specific provision for people under 18 who receive treatment under the Act;
5. A detailed statutory Code of Practice should be published to provide guidance on the application of the Commission’s recommendations and the Minister for Children and Youth Affairs should establish a broad-based Working Group to advise on its content.
Consent
At present in Ireland, there is no statutory guidance for healthcare professionals on the treatment of children and young people. However, by virtue of section 23 of the Non Fatal Offences against the Persons Act 1997 children aged 16 and 17 as able to consent to surgical, medical or dental treatment including procedures necessary for diagnosis, and ancillary procedures e.g. a general anaesthetic. There is no statutory provision for minors to refuse treatment, and no statutory guidance for treating children aged 15 and under.
There has been much debate over the "mature" teenager’s capacity to consent to treatment particularly in cases involving the prescription of contraceptives, the treatment of sexually transmitted diseases, drug abuse and mental health issues.
The landmark English case of Gillick v West Norfolk and Wisbech Health Authority [1985] 2 All ER 402 (UK House of Lords) considered the rights and entitlements of parents concerning their teenage children and the mental capacity of those children particularly in regards to a healthcare professional prescribing contraceptives to an under 16 year old. Lord Fraser set out five guidelines now known as the “Fraser Guidelines” which if followed by a prescribing health professional, they could lawfully provide contraceptives to an under 16 year old without parental consent or even knowledge. The five guidelines to be considered are as follows:
1. Did the young person understand the health professional’s advice?;
2. The health professional cannot persuade the person to inform his or her parents or allow the doctor to inform the parents that he or she is seeking contraceptive advice;
3. The young person is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment;
4. Unless he or she receives contraceptive advice or treatment, the young person’s physical or mental health or both are likely to suffer;
5. The young person’s best interests require the health professional to give contraceptive advice, treatment or both without parental consent.
The Department of Health in England has incorporated these guidelines into its own guidelines produced in 1986 and updated in 2004 and although the Gillick case was confined to contraceptive treatment, the “Fraser Guidelines” have become a template for a wider ranging “mature minor” rule in English law focusing on the test of mental capacity often called “Gillick competence”.
The “Fraser Guidelines” have been viewed as persuasive guidance for healthcare professionals in Ireland however the Commission recommends the adoption of wider guidelines focusing on maturity, capacity and best interests in broader health care decisions settings, not simply limited to the prescription of contraceptive medication.
Accordingly, the Commission recommended that in assessing the maturity for a person under 16 years, health professionals would need to consider:
1. Whether the patient has sufficient maturity to understand the information relevant to making the specific decision and to appreciate its potential consequences;
2. Whether the patient's views are stable and reflect his or her values and beliefs;
3. The nature, purpose and utility of treatment;
4. The risks and benefits involved in the treatment; and
5. Any other specific welfare, protection or public health considerations.
Currently, the capacity of a 16 or 17 year old to make a healthcare decision involving a refusal of life sustaining treatment is limited, and generally an application to the High Court is made to consider the validity of the refusal. The Commission recommends that this be incorporated into the legislation for persons under 18 years of age. If the Commission’s recommendations are implemented, a healthcare decision of a 16 or 17 year old will only be interfered with by the Courts in circumstances where there is a refusal of life sustaining treatment.
In the case of North Western Health Board v HW and CW [2001] IESC 90, the Supreme Court declined to intervene to override the refusal of the parents to give their consent to allow a doctor to carry out the ‘heel prick’ PKU blood test on their baby boy because it was not clearly evident that the refusal threatened his life or immediate health. The Supreme Court reaffirmed that the pre-Constitution parens patriae jurisdiction concerning children had, in effect, been subsumed under the Courts’ inherent jurisdiction under the Constitution to vindicate and protect rights where necessary.
This case highlights the prevalence of parents’ involvement in a child’s healthcare decision however if the Commission’s recommendations are implemented, a healthcare decision of a 16 or 17 year old will only be interfered with by the Courts in circumstances where there is a refusal of life sustaining treatment and not by the child’s parents.
Mental Health
Specifically in the context of psychiatric treatment, the Mental Health Act 2001 is silent on the right of children and teenagers to partake in decisions regarding their health. For example, section 25 of the Mental Health Act 2001 which provides for the involuntary admission of children does not contain any safeguards which would ensure that the child’s interests are represented. The Commission recommends age-appropriate facilities for children and young people suffering from mental illness and furthermore that the protections which apply to adults under the Act should also apply to children and young people.
Confidentiality
The Commission recommends that when treating persons under 18, health care professionals must ensure respect for confidentiality, subject to any specific statutory obligations to disclose medical records, and have regard to the rights of parents and guardians to access relevant information, and that this information should be given where it would be in the best interests of the person under 18.
The Commission’s recommendations have come at an important time when society is developing and maturity is evolving resulting in teenagers having the capacity to make judgments about their health and wellbeing. The recommendations will provide welcomed guidance for healthcare professionals involved in daily health care settings with teenagers on thorny issues such as contraception, drug abuse and psychiatric treatment all underlined with the principle of confidentiality.
Ciaran O’Rorke