The law relating to children and consent to medical treatment has traditionally raised many difficult questions, for example, teenagers' access to sexual health advice and contraception without their parents’ knowledge and their right to make decisions about their treatment when they are seriously ill. Healthcare professionals did not have any clear guidelines to follow when treating minors (under 18) which has led to inconsistent professional practice and has also discouraged teenagers from seeking medical advice where they were unsure about confidentiality.
In July 2011, the Law Reform Commission (“LRC”) published its report on Children and the Law: Medical Treatment (the “Report”), dealing with children’s rights in relation to medical treatment. It clarifies the existing law under the Non-Fatal Offences Against the Person Act 1997, where consent given by a 16 or 17 year old is a defence in any criminal prosecution for assault against a medical practitioner.
Among the 20 recommendations made in the Report are: (a) that 16 and 17 year olds should be presumed to have full capacity to consent to medical treatment; (b) that under 16 year olds should only be presumed competent to consent to or refuse medical treatment in exceptional circumstances; (c) that where any person under 18 refuses life-sustaining medical treatment, an application must be made to the High Court to decide on the validity of the refusal; (d) that when treating persons under 18, healthcare professionals must ensure respect for confidentiality; and (e) that a detailed Code of Practice should be published to provide guidance on the application of the LRC’s recommendations.
The Report contains guidelines on when persons under 16 should be considered to have the capacity to consent to or refuse medical treatment. These guidelines are similar to the English test of “Gillick competence” which provides for the concept of a “mature minor”. The LRC recommends that when treating persons under 16, healthcare professionals should consider whether the patient has “sufficient maturity” to understand the information relevant to making their decision; whether the patient’s views are a “stable and true reflection of his core values”; the “nature, purpose and utility of the treatment”; and any other “welfare, protection or public health considerations”.
The Report signifies an important advancement for both healthcare professionals and young patients. It recognises an increasing maturity and understanding of medical issues in young people, and also provides clear assurances to professionals treating young people. To date there has not been any indication of when these legislative proposals will be considered by the Government. However, currently 70% of the LRC’s proposals have led on to reform which is promising.