The ability of minors to consent to medical treatment has long weighed on the minds of health care professionals in Ireland. A recent report published by the Law Reform Commission (“the LRC”) entitled Children and The Law: Medical Treatment (“the Report”) recommends a number of changes to clarify the law on medical treatment for those under the age of 18 and includes a draft Health (Children and Consent to Health Treatment) Bill and an Outline Scheme of a Mental Health Bill to implement these recommendations. The LRC has stressed, however, that its proposals do not support a further reduction in the age of majority, which was previously reduced to 18 in 1985.
The Report recommends that this legislation includes, as a primary consideration, the best interests of the child, assessed objectively by reference to the rights of the child.
The Report seeks to:
- clarify existing law that 16 and 17 year olds can consent to medical treatment;
- ensure that children under 16 have their views fully taken into account when seeking treatment; and
- provide clarity and assistance to health care professionals, parents and guardians.
While section 23 of the Non-Fatal Offences Against the Person Act, 1997 stated that consent given by a 16 or 17 year old to medical treatment was a defence in any criminal prosecution for assault against a medical professional, it did not create a general presumption that children of 16 or 17 could consent to, or refuse, medical treatment. The LRC’s recommendation is that legislation should clearly provide that, in general, a young person between 16 and 18 years has a rebuttable presumption of capacity to consent to, and refuse, health care treatment. The person concerned would be treated as if they were of full age. Where the young person exercised this right, it would not be necessary, except in cases of life-sustaining treatment, to consult their parent or guardian.
Where life-sustaining treatment is concerned, the LRC restates its position set out in its 2006 and 2009 report on Advance Care Directives that the law should operate on the basis of a presumption in favour of life. Consequently, the LRC recommends that, as with adults, where an individual under 18 refuses life-sustaining treatment, an application should be made to the High Court to adjudicate on the refusal. The High Court could, if appropriate, order treatment on the basis that it was necessary to save life and was in the best interests of the young person. The Report states that Advance Care Directives, generally, should not be denied to those under 18 with capacity thereby allowing them an opportunity to engage fully in health care planning.
A key focus of the Report is the need for the child’s voice to be heard and respected. The Report says that active participation by children in the exercise of their rights becomes more and more important as the child grows and matures. This is articulated as being highly beneficial, enhancing their communication and development skills and improving the relationship between children and adults. Therefore, the LRC has recommended that when treating children, health care professionals must give them an opportunity to expr
ess their views and give these views due weight in accordance with the child’s age and maturity. The LRC states that regardless of the age of consent, there is always a need to respect confidentiality. This is of added importance for young persons in the context of general health concerns and anxieties which they may be reluctant to discuss with a doctor or other health care professional. When treating such persons, health care professionals must also have regard to the rights of parents and guardians to access to relevant health information and provide this information where it is in the best interest of the child.
The LRC notes that in the cases of Gillick in the UK and Manitoba in Canada, the courts in other jurisdictions have advanced the idea of the ‘mature minor’. Taking these into account, the LRC recommends that a statutory test be developed to determine maturity. This would focus on: (a) whether young people (aged 16 and 17) are able to understand the relevant information and appreciate its potential consequences; (b) whether their views are stable and a true reflection of their core values and beliefs; (c) the nature, purpose and utility of the treatment; (d) the risks and benefits involved and; (e) any other specific welfare, protection or public health considerations. Parents or guardians should be involved in the decision making process and the minor should be encouraged and advised to involve and communicate with them. The Report states that it is only in “exceptional” circumstances that, having regard to an objective assessment of both the rights and the best interests of the person under 16, that treatment would be provided to those under 16 without the knowledge or consent of parents or guardians.
The LRC also states the need to broaden the definition of “health care” and “medical treatment” by including preventative aspects such as health promotion, the provision of advice, information and counselling. The Report also recommends that a broader range of health care professionals be brought within the definition of health care and medical treatment. Importantly, the LRC recommends that there be no differentiation between physical and mental health.
Significantly for health care providers, the LRC recommends that a defence in respect of potential civil liability should be included for those who are treating persons under the age of 18. This defence would apply where, acting in good faith and exercising due diligence, the health care provider made a decision to provide, or withhold, medical treatment in respect of a child or a young person under 18 years of age.
The LRC has also proposed an amendment to the Mental Health Act 2001 to include specific provisions for persons under the age of 18 based on the general principles already recommended in the Report. These include that children and young people, admitted under the Act:
- should be accommodated in an environment that is suitable for their age;
- may only be admitted under the Act if such an admission is in their best interests, objectively assessed by reference to their rights;
- should receive the least intrusive and restrictive treatment possible, in the least restrictive environment possible and for the shortest possible period in accordance with an individualised care plan.
In addition, the Report recommends that while the District Court should continue to make the initial decision on admission of children and young people as involuntary patients, a Mental Health Tribunal (with an age appropriate focus) should review the admission rather than the Court.