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CONSULTATION PAPER

CHILDREN AND THE LAW: medical treatment

(LRC CP 59-2009)

© Copyright

Law Reform Commission

FIRST PUBLISHED

December 2009

ISSN 1393-3140

LAW REFORM COMMISSION’S ROLE

The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 150 documents (Consultation Papers and Reports) containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have led to reforming legislation.

The Commission’s role is carried out primarily under a Programme of Law Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in December 2007 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. Since 2006, the Commission’s role includes two other areas of activity, Statute Law Restatement and the Legislation Directory.

Statute Law Restatement involves the administrative consolidation of all amendments to an Act into a single text, making legislation more accessible. Under the Statute Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on as evidence of the law in question. The Legislation Directory - previously called the Chronological Tables of the Statutes - is a searchable annotated guide to legislative changes. After the Commission took over responsibility for this important resource, it decided to change the name to Legislation Directory to indicate its function more clearly.

Membership

The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners.

The Commissioners at present are:

President:

The Hon Mrs Justice Catherine McGuinness

Former Judge of the Supreme Court

Full-time Commissioner:

Patricia T. Rickard-Clarke, Solicitor

Part-time Commissioner:

Professor Finbarr McAuley

Part-time Commissioner:

Marian Shanley, Solicitor

Part-time Commissioner:

Donal O’Donnell, Senior Counsel

Law Reform Research Staff

Director of Research:

Raymond Byrne BCL, LLM (NUI)

Barrister-at-Law

Legal Researchers:

Chris Campbell B Corp Law, LLB Diop Sa Gh (NUI)

Siobhan Drislane BCL, LLM (NUI)

Gemma Ní Chaoimh BCL, LLM (NUI)

Bríd Nic Suibhne BA, LLB (NUI), LLM (TCD), Diop sa Gh (NUI)

Jane O‘Grady BCL, LLB (NUI), LPC (College of Law)

Gerard Sadlier BCL (NUI)

Joseph Spooner BCL (Law with French Law) (NUI), BCL (Oxon) Dip. Fr and Eur Law (Paris II)

Ciara Staunton BCL, LLM (NUI), Diop sa Gh (NUI)

Statute Law Restatement

Project Manager for Restatement:

Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor

Legal Researchers:

John P Byrne BCL, LLM, PhD (NUI), Barrister-at-Law

Catriona Moloney BCL (NUI), LLM (Public Law)

Legislat ion Directory

Project Manager for Legislation Directory:

Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law

Legal Researchers:

Margaret Devaney LLB, LLM (TCD)

Rachel Kemp BCL (Law and German), LLM (NUI)

Administration Staff

Head of Administration and Development:

Brian Glynn

Executive Officers:

Deirdre Bell

Simon Fallon

Darina Moran

Peter Trainor

Legal Information Manager:

Conor Kennedy BA, H Dip LIS

Cataloguer:

Eithne Boland BA (Hons), HDip Ed, HDip LIS

Clerical Officers:

Ann Browne

Ann Byrne

Liam Dargan

Sabrina Kelly

Principal legal researcher for this consultation paper

Bríd Nic Suibhne BA, LLB (NUI), LLM (TCD), Diop Sa Gh (NUI)

CONTACT DETAILS

Further information can be obtained from:

Head of Administration and Development

Law Reform Commission

35-39 Shelbourne Road

Ballsbridge

Dublin 4

Telephone:

+353 1 637 7600

Fax:

+353 1 637 7601

Email:

[email protected]

Website:

www.lawreform.ie

ACKNOWLEDGEMENTS

The Commission would like to express special thanks to all the participants who contributed to the Consultation Day on 26^th August 2009.

The Commission would like to thank the following people who provided valuable assistance:

Niall Behan, Irish Family Planning Association

Bríd Clarke, former Chief Executive Officer of the Mental Health Commission

Fiona Crowley, Amnesty International Ireland

Meghan Doherty, Irish Family Planning Association

Sonia Donnelly, Irish Family Planning Association

Mary Forde, Amnesty International Ireland

Craig Hodges, Headstrong

Sinead Kearney, Partner BCM Hanby Wallace

Mary Keyes, Mental Health Commission

Emily Logan, Ombudsman for Children

Anna Lally, Spunout

Sophie Magennis, Ombudsman for Children’s Office

Karen McAuley, Ombudsman for Children’s Office

Bernard McDonald, Ombudsman for Children’s Office

Kevin Mills, Health Services/ Health Service Executive West

Colm O Gorman, Amnesty International Ireland

Stephanie O Keefe, Crisis Pregnancy Agency

Caroline Spillane, Crisis Pregnancy Agency

Carmel Stewart, Senior Counsel

Full responsibility for this publication lies, however with the Commission.

TABLE OF CONTENTS

Table of Legislation xi

Table of Cases xv

TABLE OF LEGISLATION

TABLE OF CASES

Introduction

ABackground to this Project

1. This Consultation Paper forms part of the Commission’s Third Programme of Law Reform 2008-2014¹ and involves examination of the law concerning medical treatment as it applies to children, that is, persons under the age of 18.

2. The project involves a continuation of the Commission’s long-standing work on reform of the law concerning children. This has included the Commission’s 1983 Report on the Age of Majority² in which the Commission recommended that the general age of majority – the age at which a person is regarded as an adult for many purposes - should be reduced from 21 to 18. This was implemented in the Age of Majority Act 1985. While the Commission discusses in this Consultation Paper whether persons under the age of 18 may be regarded as being capable of consenting to, or refusing, medical treatment, the proposals made do not involve a general reduction in the age of majority.

3. Because this project involves an examination of capacity to consent to, and to refuse, medical treatment, it also complements the Commission’s more recent work on the law concerning mental capacity as it applies to persons over 18 years of age. This work culminated in the Commission’s 2006 Report on Vulnerable Adults and the Law³ and the 2009 Report on Bioethics: Advance Care Directives.⁴ The Commission anticipates that this work will be incorporated into the Government’s proposed Mental Capacity Bill, in respect of which the Scheme of a Mental Capacity Bill 2008 was published in September 2008.⁵

4. The Commission now turns to provide a brief overview of the Consultation Paper.

BOutline of this Consultation Paper

5. In Chapter 1, the Commission examines the rights of children of relevance to this project. These include the rights of children recognised under the Constitution of Ireland and under international Conventions and other similar documents. The Chapter begins with an explanation of the terminology used throughout the Consultation Paper to refer to children of different ages. The Commission examines the rights of the child under the Constitution, and then focuses on these rights in a medical context. The Commission also examines the rights of the child under international law, particularly under the 1989 United Nations Convention on the Rights of the Child. The chapter concludes with a focus on the voice of the child and contains findings from a consultation carried out by the Commission with children and young people. This was carried out with the invaluable assistance of the Ombudsman for Children’s Office.

6. In Chapter 2, the Commission discusses the recognition that a child develops on gradual basis towards being an adult, or from being a minor to achieving the age of majority. The Chapter contains an account of the law relating to minority status and highlights the importance of reviewing different ages of consent in line with societal developments and the evolving capacity of children and adolescents. The Chapter then discusses the guiding principles which underpin the creation of different age limits and ages of consent for different purposes. The Commission also discusses the historical development of ages of majority up to the enactment of the Age of Majority Act 1985. This also includes a description of the legal rights and responsibilities of those under 18 years in current law.

7. In Chapter 3, the Commission discusses the extent to which it is possible to define the term “medical treatment” and associated wider terms such as “health care” in the specific context of treatment involving persons under 18 years of age. As the Commission notes in this chapter, there is currently no single all-purpose definition of these terms, reflecting their potentially wide-ranging scope of application and the ongoing use and development of new technologies and procedures in health care and medical practice. The Commission discusses the different uses of the term “medical treatment” currently in use in Irish law and also developments that have occurred in this respect in other countries. The chapter also explores the medical concerns of Irish children and young people in order to consider the types of treatments which are most important to them and their continuing development. The Commission then discusses how the issue of consent to medical treatment has arisen in many countries in the specific context of the provision of contraceptive advice and treatment to improve sexual health. The Commission completes this analysis with a number of general proposals on consent to treatment.

8. In Chapter 4, the Commission discusses the current legal situation in relation to children and consent to medical treatment. The chapter begins by examining the relevant position under Irish law, including the relevance of section 23 of the Non-Fatal Offences Against the Person Act 1997, which deals with consent to treatment by 16 and 17-year-olds. The Chapter concludes with the Commission’s provisional recommendations on this area.

9. In Chapter 5, the Commission turns to examine refusal of medical treatment. The Commission examines Irish law on refusal of medical treatment, on which much of the material is limited to refusal by an adult. The Commission then addresses the issues raised by refusal of medical treatment by a person under 18, including a comparative analysis of the position in other countries. The Commission completes this chapter with proposals for reform, and also addresses the question of advance care directives for persons under 18 years of age.

10. In Chapter 6, the Commission discusses medical services and legislation in relation to children and young people with mental health problems. The Commission reviews the literature on the prevalence of mental health problems among children and adolescents in Ireland. The Commission then examines current service provision and the impact of the Mental Health Act 2001 on patients under the age of 18. The chapter concludes with the Commission’s provisional recommendations for reform.

11. Chapter 7 contains a summary of the provisional recommendations made in the Consultation Paper.

12. The Appendix comprises a map indicating some key steps in the analysis of capacity to consent to and refuse health care and medical treatment for persons under 18.

13. This Consultation Paper is intended to form the basis of discussion and therefore all the recommendations made are provisional in nature. The Commission will make its final recommendations on the subject of children and medical treatment following further consideration of the issues and further consultation with interested parties. Submissions on the provisional recommendations included in this Consultation Paper are welcome. To enable the Commission to proceed with the preparation of its final Report, those who wish to do so are requested to make their submissions in writing by post to the Commission or by email to [email protected] by 31 March 2010.

CHAPTER 1RIGHTS OF THE CHILD

AIntroduction

1. This Chapter discusses the rights of the child. Part B briefly explains the terminology used throughout the Consultation Paper to refer to children of different ages. Part C examines the rights of the child under the Constitution. Part D looks at the personal rights of children in a medical context. Part E contains a discussion of the rights of the child under international law, particularly under the Convention on the Rights of the Child 1989. Part F concludes with a focus on the voice of the child and contains findings from a consultation carried out by the Commission with children and young people.

BTerminology

2. A child is defined as a person under 18 years of age.¹ There are numerous words and labels however which arise during a discussion on the rights and capacities of children, for example, infant, child, teenager, minor, mature minor, adolescent, young person and so on. The Children Act 1908 used the term ‘infant’, which has been replaced by the term ’child’ in more recent legislation, such as the Child Care Act 1991. The term ‘young person’ is frequently used in common discourse to differentiate between a child and an older adolescent. The term is also in use in statutory form, in the Protection of Young Persons Employment Act 1996. For the purposes of this consultation paper, the terms ‘children’ and ‘young people’ shall be used to distinguish older adolescents from young children. The terms children and young people are used in other countries to recognise the different capacities of, for example, a 6 year old and a 16 year old. Various law reform bodies which have examined issues of age and status have also used this terminology.²

3. It is difficult to define precisely the age groups of children that the term child or young person should apply. Issues of capacity, maturity, understanding, appreciation and experience cannot be resolved by reference to a fixed age. Generally speaking, the Commission has used the term child in relation to a person aged up to 16 years of age, and the term young person to describe a person aged 16 years or over. These age distinctions are, however, intended to be used in a flexible manner, to accommodate particular cases and circumstances. Furthermore, this terminology applies only to the particular issue under review, namely the age of consent to medical treatment.

CRights of the Child under the Constitution

4. The Constitution is the fundamental law of the State. It is the primary source of principles, rights and ideals against which all legislation and case law must be measured. Any assessment of children’s rights and responsibilities must be carried out in light of the constitutional protection of the family and the strong emphasis on the family unit and parental rights enshrined in Articles 41 and 42 of the Constitution.³

5. Articles 41 and 42 set out the irrefutable constitutional position of the family as:

“the natural primary and fundamental unit group of Society and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”

Article 42 deals with the relationship between State and family and also sets out the position of the child within the family:

“In exceptional cases, where parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”

6. A significant line of cases have centred on the applicable test in cases of failure of parental duty. ⁴ The non-interventionist stance which has developed from Article 42 has become a focal point for debate and dissatisfaction with the seemingly impenetrable position of the marital family. The rights of the family are exercised by parents, as head of the protected and autonomous family unit. As Article 42 provides the sole express reference to the rights of the child in the Constitution, this creates an assumption of correlation between the rights and wishes of the parent, and those of the child.⁵ The absence of express constitutional rights for children has been viewed as confirmation of such an assumption, and various calls have been made to improve the position of the child in the Constitution.

7. Looking beyond Article 42, however, every child has a broad set of personal and unremunerated rights protected by Article 40.3.⁶ Several cases have focused on the scope of rights held by children, in particular G v An Bord Uachtala 1980⁷. To quote Walsh J:

“The Child’s natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience................. The child’s natural right to life and all that flows from that right are independent of any right of the parent as such”⁸

O Higgins CJ stated that:

“The Child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and realising his or her full personality and dignity as a human being. The rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State”⁹

8. This is an explicit acknowledgment that children are beneficiaries of a wide range of personal rights, just as adults are. A child has a right to privacy, bodily integrity, good health, dignity and self-determination, and the State has a duty to respect and as far as practicable, vindicate such rights. It is clear that a child has personal rights under the Constitution however the Constitution’s view of the child has been likened to a Kantian or Lockean view of the child as a being who has not yet attained reason and as such is not capable of self-determination.¹⁰ This position is at odds with the developing notion of parental responsibility as opposed to parental rights, and the growing international awareness of children as autonomous holders of rights.¹¹

9. The constitutional rights of children and young people arose in a case concerning a 17 year old’s right to travel, which was heard in the High Court in May 2007.¹² The 17 year old female, Ms D, sought a number of orders to set aside a Care Order, in so far as the Care Order restricted her right to travel. Ms D intended to travel to England with the purpose of terminating her pregnancy, but had been prevented from doing so by the Health Service Executive (HSE).

10. Mc Kenchie J held that there was no statutory or constitutional impediment which would prevent Ms D from travelling to the United Kingdom for the purposes of terminating her pregnancy, if she so wishes. The crux of the case was the right to travel. The fact that the purpose of travel was to terminate a pregnancy did not convert the case into one of abortion case. Moreover, the right to travel, as constitutionally guaranteed, takes precedence over any exercise of rights conferred on the unborn within Article 40.3.3 of the Constitution.¹³

11. Mc Kechnie J stated that Ms D was not an irresponsible child, but a person of maturity, courage, dignity and integrity. In relation to the rights of the child:

“It is imperative to recognise that children are born with rights and those rights continue right throughout childhood into teenage years and become unaffected in their entirety by the parental relationship on reaching majority.”

12. Although these rights are originally exercised on behalf of children, usually by their parents, the rights remain the rights of the child and commensurate with the progressive development and maturity of such a child. Mc Kechnie J referred to the various age thresholds set out by the law to allow for the gradual assumption of rights and responsibilities during childhood and adolescence.

“...age, short of majority, is not the conclusive test or threshold but it is important in its own right and becomes increasingly so as full status appears more imminent.”

13. Although parental rights are clearly much stronger then the rights of the HSE in relation to a child in care; Mc Kechnie J, referring to judgments by Lord Denning in Hewer v Bryant1970¹⁴ and Lord Scarman in Gillick¹⁵, suggested that a conflict in relation to the rights of the parent and the rights of the child would not have led to a different conclusion in the present case. Ms D was exercising her own constitutional rights and assuming her own constitutional responsibilities.

14. This judgement, although largely concerned with the constitutional right to travel is of general importance for the rights of the child. The judgment provides a clear affirmation of the personal rights held by children under the Constitution. The reference to the Hewer and Gillick cases indicate an awareness of the evolving capacity of children, and the legal capacity of a child to exercise his or her constitutional right as he or she grows older and matures.

DChildren’s Rights in the Context of Medical Law

15. A constitutional right to the protection of one’s health has been identified by the Supreme Court.¹⁶ Personal rights of bodily integrity, autonomy, dignity and privacy must be respected in the medical sphere. Such rights are not curtailed or limited by age or minor status. Binchy writing on the constitutional right to dignity, has stressed that the Constitution ascribes equal worth to every human being, regardless of his or her age or physical or mental capacity.¹⁷

16. There is little judicial authority on the rights of a child in a medical context and the courts have yet to address the question of whether a child’s personal rights, and capacity to make a decision, could take precedence over a parent’s decision. The case of North Western Health Board v HW¹⁸, referred to below, provides a detailed assessment of the constitutional rights of parents to make medical decisions on behalf of their children, but is not directly applicable to a discussion of a child’s capacity to make medical decisions. The child at the centre of the case was very young and the dispute was in effect, between the child’s parents and the State.

17. The case of North Western Health Board v HW was based on the refusal of parents to consent to a diagnostic test on behalf of their young child. The Supreme Court ruled that the welfare of a child is best served by deferring health care decisions to a child’s parents and the court could only intervene in exceptional circumstances.¹⁹ Although the medical test in question was held to be in the child’s best interests, this factor alone was not sufficient to establish parental failure. In the words of Murray J:

“The failure of the parental duty which would justify and compel intervention by the State must be exceptional indeed”²⁰

18. Denham J referred briefly to the rights of the child stating:

“The rights of the parents in exercising their responsibility are not absolute; the child has personal constitutional rights. The child has rights both as part of the unit of the family and as an individual.”²¹

19. A point to note is that the dispute centred on a diagnostic test, as opposed to a specific treatment which would improve the child’s health. The courts have yet to explore any circumstances involving a dispute between a child and parent regarding a medical decision. The capacity of the child to consent to medical treatment would be a vital factor in any such case. Consent is a fundamental cornerstone of medical law, and is an expression of respect for personal rights of autonomy and self-determination.

    Autonomy and Informed Consent

20. The notion of individual autonomy is based on the autonomous person who is a self-determining agent, with responsibility for one’s own actions and decisions.

“Over himself, over his own mind and body, the individual is sovereign.”²²

21. Autonomy, based on the idea that our decisions and actions are ours alone, is the basis for consent, and refusal. Respect for autonomy encompasses respect and recognition for the decisions that each person makes in valuing and defining his or her life²³. Dworkin maintains that there is something special about the role of autonomy in relation to health care and medical decisions. A doctor cares for the health of the body however the care of the body is intrinsically linked with our identity as persons.²⁴ A classic expression of the law’s respect for the autonomy of the individual is found in the statement by Cardozo J:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without the patient’s consent commits an assault”²⁵

22. The requirement of consent is an expression of respect for individual autonomy and has been endorsed as an essential pre-requisite to any medical treatment by common law, and the principles developed through medical ethics and human rights. ²⁶ The Supreme Court has stated that:

“The requirement of consent to medical treatment is an aspect of a person’s right to bodily integrity under Article 40.3 of the Constitution”.²⁷

23. Autonomy is based on respect for the individual’s decisions, whether they are deemed to be right or wrong, positive or negative. The right to self-determination encompasses both the right to consent and the right to refuse medical treatment. It is the act of decision making which demands respect, not the consequence.

24. The prerequisite factor of capacity underpins the notion of consent and acts as a limit to the right of autonomy.²⁸ In brief, capacity to give a legally effective consent is dependent upon capacity to understand the issue at hand and reach a decision.²⁹

25. Much of the legal protection concerning the right of autonomy presumes that the patient is an adult with full mental capabilities. There is however, a growing awareness that members of society who have been deemed as lacking in capacity have recognised rights which are worthy of respect and protection. There has been an implicit rejection of the traditional protectionist approach to capacity and a move towards an inclusive scheme based on the dignity of the human being and an emphasis on autonomy and empowerment.³⁰ Rights of privacy, bodily integrity, dignity and freedom from inhuman and degrading treatment are not diminished by a finding of legal incapacity.³¹ Those deemed to be lacking in capacity have legally enforceable rights under the Constitution and the European Convention on Human Rights.³²

26. The right to be informed is a central aspect of the right to consent to medical treatment. A person may lack the capacity to make a particular decision but he or she may have an important contribution to make to the decision-making process and has a right to ensure that his or her contribution is taken into account in medical decisions which affect his or her health.³³

27. This is particularly important for children. Children may not have the capacity to consent to medical treatment, but they have a right to express their opinions and to be informed about their medical condition and treatment. It is not always suitable to inform children, particularly those at a very young age, of all the pertaining facts. A child’s right to personal information, however, should not be disregarded simply because he or she lacks the legal capacity to make decisions regarding medical treatment.

“It can be argued that it is overly simplistic to view the duty to disclose as being directed towards the person who has legal capacity to consent and not to include the actual person within the ambit of the duty”.³⁴

28. The Law Society of Ireland’s Law Reform Committee has highlighted the importance of recognising the different stages of maturity and development throughout childhood:

“The consultation of children recognises their importance and personal autonomy, and can promote their decision-making capacities without saddling them with the final responsibility for decisions they should not have to have the responsibility of making”³⁵

29. Although a child may lack capacity to consent to treatment, informing the child and obtaining consent from the child is considered to be best practice by many health professionals. A relationship built on consent and understanding is essential to respect the autonomy of children and their right to bodily integrity.³⁶

30. The issue of informed consent in such a context has not been discussed in any detail before the courts, but was briefly referred to in the case of Quinn v The Southern Eastern Health Board.³⁷ O’ Caoimh J held that consent given by a 14 year old girl to a neurological procedure was not informed, due to the fact that neither the girl nor her parents had been told of the risks associated with the procedure. The fact that the patient was not advised appropriately of the consequences of the procedure seemed to be a determining factor. This indicates that the plaintiff, as a 14 year old, had a right to be informed.³⁸

31. The issue in N. McK v Information Commissioner³⁹ was the applicable test under the Freedom of Information Act 1997 regarding a parent’s access to the personal information of his child. The applicant was a widower who had been separated from his wife and was joint guardian of his daughter, along with his sister in law, with whom his daughter lived. Following an allegation that he had sexually abused his daughter, Mr Mc K was granted supervised access to his daughter.

32. Mr Mc K sought access to his daughter’s medical records. According to regulations, a minor’s personal information may be released to the minor’s parent or guardian, where it is in the minor’s best interests. The Information Commissioner, in agreement with an earlier decision made by a hospital, refused the applicant’s request on the grounds that it was not in the best interests of his daughter. The applicant successfully appealed the decision of the Information Commissioner to the High Court, where Quirke J relied on the Supreme Court decision in North Western Health Board v HW 2001 and held that there is a presumption of parental entitlement to a child’s personal information. The approach taken by the Information Commissioner, that the applicant should show that access to the information was in the child’s best interests, was incorrect. The Supreme Court affirmed the decision of the High Court and stated that the Information Commissioner should have approached the request for information by acknowledging that the applicant was entitled to the information, before considering any evidence which could rebut the presumption of parental entitlement to a child’s personal information.⁴⁰

33. By the time the case reached the Supreme Court, the minor in question was almost 18 years of age. There was, however, no reference to the minor’s wishes or to the fact that the minor was, under section 23 of the Non-Fatal Offences Against the Person Act 1997, capable of consenting to medical treatment in her own right.⁴¹ The single judgment, delivered by Denham J, referred to the age of the minor and stated that her views are “now very relevant”. There was no further discussion, as the matter reverted to the Information Commissioner to reconsider the request in light of the Supreme Court judgment.

34. The Information Commissioner reconsidered the matter and reached the conclusion that the presumption of parental entitlement to a child’s information was rebutted by direct evidence put forward by the applicant’s daughter, Ms Mc K. The Commissioner had regard to the age and maturity of Ms Mc K and the cogent reasons she advanced in relation to her views.⁴² The Commissioner also referred to section 23 of the Non-Fatal Offences Against the Person Act 1997 as recognition by the Oireachtas that minors aged 16 years of age have the capacity to determine what is in their best interests in the context of medical treatment. The decision of the Information Commissioner has not been appealed to the High Court.

ERights of the Child under International Law

35. A large body of international human rights law exists today which can be used to influence the progression of human rights ideals into concrete principles of domestic law. When examining various national and international human rights instruments, one can identify a discernable emphasis on the rights of the child.⁴³ These legal instruments recognise the dependency and vulnerability of children, but also acknowledge that children’s rights are a self standing matter and not a consequence or a derivative of the rights of their parents. Children as human beings are entitled to more than a minimum level of care and protection provided by their families. They are also entitled to participate in decisions involving their own futures. The process of securing rights and entitlements for children all over the world has been largely due to international human rights instruments which have recognised children as individual rights holders in addition to rights held collectively by a family unit.

(1)Convention on the Rights of the Child 1989

36. The UN Convention on the Rights of the Child 1989 is the most highly ratified human rights instrument in international law. The Convention covers a range of civil, political, economic, social and cultural rights and is a comprehensive declaration of the indivisibility of human rights. The actual number of substantive rights contained in the Convention makes it the longest United Nations human rights treaty in force.⁴⁴ The rights can be condensed into four categories: the participation of children in decisions affecting their future, the protection of children against discrimination, neglect and exploitation, the prevention of harm to children and the provision of assistance for their basic needs. The inclusion of social welfare rights shows the need for States to do more than protect children physically.

37. The Convention strives to achieve a balance between participation and protection, by treating children as dependants, reliant on the protection of adults whilst simultaneously acknowledging their right to participate in decisions affecting them.⁴⁵ Article 5 of the Convention reads:

“State Parties shall respect the responsibilities, rights and duties of parents... to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.”

38. Article 5 clearly respects the right and responsibility of parents to direct and guide their children, however this parental responsibility must be balanced with the rights of the child, by delivering guidance and direction in a child-centred manner. Parents and others have the responsibility to continually adjust the levels of support and guidance they offer to a child, effectively enabling children to participate more in the realisation of their rights. A General Comment issued by the Committee on the Rights of the Child in 2005 stated that parents and others should be encouraged to offer guidance in ways that enhance young children’s capacities to exercise their rights, including their right to participation and freedom of thought, conscience and religion.⁴⁶

39. Article 12 outlines children’s evolving capacity to exercise their rights and can be viewed as a compliment to Article 5:

“State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all manners affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”

40. Article 12 draws attention to the daily life of children and the decisions which affect them. A young child’s rights will naturally be exercised by his or her parents, but as the child grows and matures the active participation by the child in the exercise of his or her rights becomes more and more important. As children evolve and grow, so too do their concerns, and the number and consequences of their decisions increase and diversify as they grow closer to reaching 18 years of age.⁴⁷ Participation by children is highly beneficial, as it enhances their communication and development skills and adds to the relationship between children and adults.

41. The relationship between the Article 3(1) and Article 12 of the Convention has attracted considerable debate. One of the guiding principles of interpretation of the Convention on the Rights of the Child is the principle of the best interests of the child, stated in Article 3 (1):

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.⁴⁸

42. The principle has gained broad acceptance, is used in various other international instruments, and features prominently in debates and discourse on children’s rights. It is important to note that an assessment of the best interests of a child should be informed by the views of the child, in accordance with Article 12 of the Convention. Furthermore, the interpretation of best interests should be carried out from a holistic viewpoint, encompassing emotional as well as physical well-being.

43. On the surface the principle of best interests seems relatively self explanatory however this apparent simplicity is in direct contrast with the myriad of meanings attributed to it, as different commentators attempt to define what the interests of children are and what best serves their interests in different situations. Problems of indeterminacy and issues of cultural relativity are often associated with Article 3. Decisions on what course of action is in a child’s best interests can be indeterminate, speculative and individualised.⁴⁹

44. In relation to cultural relativity, Van Buren commentated that the principle could become a fulcrum for regression rather than progression if States adopt a culturally relativist approach to defend their actions.⁵⁰ Open ended principles are at risk of being utilised in the defence of certain cultural practices which are harmful to children. Other commentators have viewed the principle of best interests as a way of ensuring greater openness and sensitivity to different cultural contexts in the implementation of human rights standards.⁵¹ Moreover, the Convention itself provides signposts as to how the principle should be applied to identify what is in the best interests of the child.⁵² General Comments issued by the Committee on the Rights of the Child also provide guidance to assist in the interpretation of individual articles.⁵³

45. Eekelaar has argued that a theory of ‘dynamic self-determinism’ which applies the best interests principle in a way which allows the child to determine what those interests are, resolves any potential tension between articles 3 and 12. The theory involves a reconstruction of the best interests principle, in that the perception of child’s best interests should be formed in accordance with objective analysis and dynamic self-determinism. An objective analysis involves drawing on objective factors which indicate which conditions are deemed to be in the child’s best interests, for example a prediction that the consequences of a child’s non attendance at school will be adverse, or a belief that a child is better off living with her mother than with her father and a nanny.⁵⁴ Such ‘objective’ decisions are largely dependent on social consensus, where such consensus exists. The outcomes of these decisions are dependent on a range of variables, such as the personality of the child, the circumstances of the case and so on.

46. The additional element of dynamic self-determinism supplements the judgement of a child’s best interests. This involves placing the child in a secure environment, but exposing the child to a range of influences, allowing the child to draw on these influences in such a way that the child himself or herself contributes to the outcome, creating space for self-development. The process is dynamic because it acknowledges that the best course for a child cannot always be realised at the time of the decision, and may need to be revised as the child grows up. For example, in a custody case, the directions in which the child’s relationships may grow are left open, but a welfare professional can monitor changes in the family dynamics and assess the child’s wishes and reaction to certain developments. Such an approach reflects the reality of family relationships and an appreciation that following parental separation, children are at risk of losing contact with a parent and that parent’s kin network.

47. Children’s decisions may, however, be contrary to their own interests, as desires and interests do not always correspond. Drawing on the thinking of Raz, Eekelaar states that if the child’s self interest would be threatened by following self-determinism, it should be disapplied because the very purpose of dynamic self-determinism is to bring a child to the threshold of adulthood with maximum opportunities to form and pursue life-goals which reflect as closely as possible an autonomous choice. This leaves open the question of what exactly self-interest is and who defines it. Eekellar promotes a narrow definition of self-interest, in terms of physical or mental well-being and integrity. Such a definition is, however, open to personal interpretation.

48. It is important to remember that Article 12 is concerned with rights of participation, not rights of control.⁵⁵ Any attempt to assess what course of action is in the best interests of the child must be informed by the views of the child, however the child is not granted the final say on what is in his or her best interests. Dynamic self-determinism does not simply state that decisions are delegated to the child – rather, the theory aims to establish the most propitious environment for the child to develop his or her personality. Unless the child is competent there is no question of the child’s opinion being determinative. Furthermore, a child’s decision could be deemed incompetent if it reflects a feeling which is so seriously unstable or where there is such grave disjunction between it and others held by the individual that to give effect to the decision risks serious conflict within the individual at a later stage. Freeman has espoused this view, calling for less emphasis on knowledge and understanding and more emphasis on how the decision of a child or a young person furthers their well being and corresponds with their system of values.⁵⁶

49. The General Comment on the Right of the Child to Be Heard issued by the Committee on the Rights of the Child in 2009 referred to the complementary interaction between Articles 3 and 12 of the Convention.⁵⁷ Article 3 establishes the objective of achieving the best interests of the child and Article 12 provides the methodology for hearing the child. There can be no correct application of Article 3 if the components of Article 12 are not respected. Article 3 in turn reinforces the functionality of Article 12, facilitating the essential role of children in all decisions which affect them.

50. Article 12 is particularly relevant in the health care setting where increased participation and understanding by patients is closely associated with positive treatment results. Article 24 of the Convention deals specifically with rights of the child in the context of health care:

“State Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. State parties shall strive to ensure that no child is deprived of his or her right of access to such health care services”

51. Article 12 focuses on consultation and consideration of the child’s opinion rather than direct or immediate implementation. The implications of Article 12 are that children have the right to be listened to by health professionals during consultation, investigation and treatment, even where the law does not require their legal consent. The General Comment on the Right of the Child to be Heard, clearly stated that Article 12 must be allocated a place of respect and deference within the medical arena:

“The realisation of the provisions of the Convention requires respect for the child’s right to express his or her views and to participate in promoting the healthy development and well-being of children. This applies to individual health-care decisions, as well as to children’s involvement in the development of health policy and services.”⁵⁸

52. The Committee on the Rights of the Child is a body of independent experts that monitors implementation of the Convention on the Rights of the Child 1989. In 2006, the Committee considered Ireland’s second report on implementation of the Convention on the Rights of the Child.⁵⁹ The Committee expressed concern that some of its previous recommendations had not been addressed, particularly those related to the status of the child as a rights-holder and the adoption of a child rights-based approach in policies and practices. In relation to Article 12 of the Convention, the Committee recommended that Ireland strengthen its efforts to ensure that children have the right to express their views in all matters effecting them and to have their views given due weight, in particular in families, educational institutions, the health sector and in communities.⁶⁰ Furthermore, children should be provided with the opportunity to be heard in judicial and administrative proceedings affecting them. In respect of health and health services, the Committee expressed concern over the lack of a comprehensive legal framework and the absence of statutory guidelines safeguarding the quality of and access to health care services as stipulated in Article 24 of the Convention.⁶¹

(2)European Convention on Human Rights 1950

53. The European Convention on Human Rights (ECHR) does not refer specifically to children but Article 1 states that the rights and freedoms outlined shall apply to everyone. Moreover, Article 14 prohibits discrimination in the enjoyment of Convention rights on various grounds, including age.⁶²

54. In 1979, the Parliamentary Assembly of the Council of Europe recommended drafting of a European Charter on the Rights of the Child. In 1990, the suggestion was omitted from proposals listed to promote children’s rights⁶³, perhaps as a recognition that it would achieve little more than mirroring the Convention on the Rights of the Child 1989. The focus on children, particularly their right to be heard under Article 12 of the Convention on the Rights of the Child, led to the adoption of the European Convention on the Exercise of Children’s Rights by the Council of Europe in 1996. The Convention on the Exercise of Children’s Rights 1996 states that the rights and best interests of children should be promoted. The Convention provides a mechanism for a child to participate in family law proceedings and emphasises that children should have an opportunity to exercise their rights.⁶⁴ Article 1(1) sets out the aim of the Convention:

“in the best interests of children, to promote their rights, to grant them procedural rights and to facilitate the exercise of these rights by ensuring that children are, themselves or through other persons or bodies, informed and allowed to participate in proceedings affecting them before a judicial authority”.

55. Regardless of the absence of a specific protocol on children’s rights, the European Court of Human Rights (ECtHR) has made considerable progress in upholding the rights of the child by using innovative methods of interpretation and drawing on some of the provisions of the Convention of the Rights of the Child.⁶⁵ Many of the Articles of the ECHR are expressed in broad terms, allowing for expansive interpretation. Article 8, for example protects the right to private life and has been relied on in numerous cases concerning family and child law. It is clear that the approach of the ECtHR to the definition of family life is, much wider than the Irish courts’ interpretations of Article 41 and offers greater opportunity to protect all family members, including children.⁶⁶ The ECtHR has stressed the right of the child to be heard in proceedings affecting him or her.

56. The status afforded to the voice of the child has been significantly enhanced by the Council of Europe Regulation on the recognition of judgments in family proceedings, Brussels II bis 2002.⁶⁷ The revised regulation provides that a court order will not be recognised in another EU member State if it was given without hearing the voice of the child. This requirement has strengthened the right of the child to be heard in family law proceedings and has made a significant difference to the status granted to the voice of the child in Irish courts.⁶⁸

57. Article 24 of the Charter of Fundamental Rights of the European Union, which forms part of EC law under the Lisbon Treaty recognises the rights of children to express their views and have their views considered in accordance with their age and maturity, in line with Article 12 of the Convention on the Rights of the Child 1989. The provision also states that the best interests of the child must be a primary concern, again drawing on the Convention on the Rights of the Child 1989.

58. Respect for the voice of the child in a medical context can be found in Article 6 of the Council of Europe 1997 Convention on Human Rights and Biomedicine. The Convention is an expression of the need to preserve human dignity, rights and freedoms from the misuse of biological and medical advances.⁶⁹ Article 6 provides for a representative to give consent where a minor does not have capacity, and states that the opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.

FVoice of the Child

59. In the Third Programme of Law Reform, the Commission stated its commitment to ensuring that the consultation process in relation to the project on Children and the Law would include mechanisms for obtaining the views of young persons. The Commission also stated that it would liaise with the Ombudsman for Children.⁷⁰

60. In order to obtain the views of children and young people, the Commission held a consultation day in the Office of the Ombudsman for Children. The aim of the consultation was to discuss various aspects of the law in relation to children and gain a practical insight into issues of consent and health care. At the outset, the participants made the point that the issues at hand were complex, but trying to get clarity was in everyone’s best interests - children, young people, their parents and the medical profession.

61. The following paragraphs are a summary of the main points made by children and young people in response to key questions.

62. Voice of the Young Patient

63. The participants were very clear on the importance of explaining things to the child or young person, regardless of age:

“Clear explanation and information should be given in a manner appropriate to the child or young person. You should be treated as an individual and not talked over or sent out of the room. Try and strike a balance between the doctor, parent and child.”

64. Confidentiality

65. Confidentiality is a significant concern for children and young people:

“Confidentiality should be respected regardless of age...although maybe it could be overridden if it was in the best interests of the patient. A person of 13 years and over should be guaranteed confidentiality.....a person of 16 years and over should be guaranteed confidentiality......but it really depends on the situation, the health issue and the maturity of the person. Like a mental health condition might be really serious and the person would need help from their parents as well as a doctor.”

“Parental guidance is important for people under 16, like they might think they know it all but they don’t because they don’t really have much life experience”

“Consensus that parents want to know what’s wrong - what’s more important a parent knowing about their child’s health or having an embarrassing conversation?”

“But what if lack of confidentiality stops a person from seeking medical advice? It depends on the sensitivity of the issue – if it’s a sexual or mental health issue, there should be full confidentiality because the person might have feelings of guilt or shame and would want their confidentiality respected. Possible option - to have confidentiality respected and tell parents at a later stage when your ready to do so. So you could go to the doctor, get the information, think about it and then make a decision with your parents. Severity and type of illness is very relevant-like swine flu has implications for other people. So many exceptions and variety in different cases-might be better to leave the doctor with flexibility?”

“Need a balance between parents, child and doctor- not all the responsibility on the child –should be something in place where doctor might encourage a child to speak to an adult or their parents without breaking confidentiality-encourage discussion.”

66. Independence and Responsibility

Do you or would you like to visit the doctor on your own? Would you like to take more responsibility for your health care?

67. Provision of information was held to be highly significant:

“Access to support and information is very important. There should be an option to visit attend medical services on your own, just for information. You could then have time to think about it and talk to your parents in your own time. Depending on the severity of the medical problem, may be the doctor could contact the parents or encourage the patient to tell his or her parents-but a doctor shouldn’t make you tell your parents. If things were discussed more openly in general, it would be easier to ask your parents about things-but it’s idealistic to expect parents to talk about things, the reality is they don’t.”

“Practical considerations-money? Parents pay for the doctor so there is a limit to how independent young people can be. Personal experience is important, for example a child with diabetes needs to have control over their own body and deal with their illness. Your body - therefore you know your own needs. Actively responsible regarding your own knowledge and information, you have to keep yourself informed. Important to seek professional advice about something-and balance that against what’s personally best for you.”

“Would allowing children more responsibility have a negative effect on the relationship with their parents? It depends on the nature of the relationship between the parent and child, is it good or bad, or is there trust and communication there? Lots of children and young people are afraid or embarrassed to talk to their parents but feel much better when they do, parents can reassure them and support them.

68. Refusal – The Case of Hannah Jones⁷¹

69. The participants talked about the teenager Hannah Jones and her initial decision to refuse a heart transplant-followed by a change of mind some months later:

“This case is exceptional - she had years of experience dealing with illness. Her parents gave her the option to decide - good to see that her parents well involved but she made the final call. Her story makes an abstract issue very real - makes you understand that she wanted to die with dignity. Her experiences added to her understanding - did her age really matter? Or should she just be looked upon as a person?”

70. Age - as an indication of competence to consent to medical treatment. How important are different ages? Do different people mature at different ages? Is personal experience and knowledge more important than years?

71. There was a general consensus that age and maturity are different:

“Age is important, but personal experience and maturity are also important. Age is a factor in an assessment of maturity for the majority of people but it depends on how you grew up and your experience......a combination of age and maturity is needed to take certain issues into account. Factors such as the nature and seriousness of the medical decision, the personal experience of the patient, how informed the patient is, the time the patient has had to reflect on the decision, are all relevant. The opinion of someone who has a medical condition and is in hospital a lot should be taken more seriously”

“Age is an important guideline of someone’s maturity –but you have to look at the person and be realistic. Like just because the age of consent to sex is 17 – doesn’t mean everyone will wait until they’re 17”

1. When the participants began to think about an assessment of maturity in the context of medical treatment, they immediately began to draw up guidelines to assist in such an assessment:

• What is the nature of the medical decision?

• How serious is it?

• Does the patient understand the implications of the decision - both long and short term implications?

• Is the patient an informed patient?

• Does the patient’s decision concur with professional medical opinion on the issue?

• Is the treatment in the patient’s best interests (using a holistic interpretation of best interests, including happiness)?

73. Do you have any opinions on what age you should be able to consent to medical treatment?

74. The participants had varying views on the weight which should be attached to age and maturity, but agreed that competency to consent should be based on both age and maturity.

“There shouldn’t be a cut off age because a cut age does exactly that - cuts people off. Consent to medical treatment should be assessed on the best interests of the patient. Need a combination of age and maturity. Difficult professional decisions – so the professionals need guidelines. Parents will be affected by their children’s health and decisions - but they don’t own their children.”

“12? 13? 16 as a flexible guide? 12 for girls and 13 for boys because girls mature faster - but would this raise equality issues? A person of any age should be able to get information but not everyone should be able to make treatment decisions. Involvement for everyone -informed consent - understanding is more important than a strict age rule. No age, it should be on a case by case basis like the mature minor rule. But is it unreasonable to put a burden on someone who’s very young? Maybe 16 - parents could have an opinion but the 16 year old could make the decision. What about 14 – if it was an informed decision, maybe weigh up child’s and parents opinions -what if the young person’s decision appears to lead to the wrong implications or consequences? The right to make health care decisions could be waived-if the responsibility was too much.”

There was a consensus among most of the group that when drafting the law the focus should be on young people - older teens:

“Like a child aged 9 or 10 is not capable of going to the doctor on their own, but might need access to a doctor for advice, like for example mental health issues - the parents in question could be the cause of the problem. But young children need guidance - they might be just attention seeking. Maybe a teacher could bring the child to the doctor?”

“Maturity and understanding are more relevant than age-it’s not right to use age to decide if a child or a young person can consent, no real difference between a young person who is 12 one day and 13 the next.”

There’s a reason why the law is vague - it’s too difficult to set in stone.”

1. At the end of the consultation day, the participants were asked to draw up some key points to aid the Commission in their work:

• It depends.....group couldn’t decide if age or maturity was more important, depends on a specific case and a specific individual. Varying views regarding a cut-off age – consent should be based on age and or maturity.

• Doctors should be given guidelines regarding maturity and decision making. Informed consent is really important - and you should be able to voice your opinion, even if you can’t consent.

• Best interests of the child or young person is important - a holistic best interests though, not just medical.

• Confidentiality should be respected - but related to the situation. Take cultural context into account - if a person is very shy for example, they might have limited communication with parents so confidentiality would be very important to them.

• Promote developments of other supports for young people, if there was more access to information certain issues wouldn’t be taboo and confidentiality wouldn’t be such a big issue.

• It’s essential to inform young people, even those below the age of consent. Growing up is much easier if you are informed, there’s a gradual assumption of responsibility. Too much responsibility at once is a lot of pressure - be careful about placing too much responsibility on young people.

76. The consultation was extremely helpful and provided the Commission with a direct insight into the practical issues that matter to children and young people in relation to health care. The issue of confidentiality was extremely important to the participants, as was the option of having someone to talk to for advice and support. The importance of treating children and young people as individuals was also raised by a number of participants. The cost of services was emphasised as a significant deterrent and barrier to the access of services.

77. In relation to the age of consent to medical treatment, the group found it difficult to reach a conclusion on the issue. Generally speaking, 16 was seen as an age where most young people would be competent to consent to medical treatment, however the participants made it clear that any age based rule would have to be flexible and take the maturity of particular individuals into account.

78. Other consultations carried out with children and young people, mainly in a hospital setting, found that children want to be involved in the consultation process.⁷² The process of consultation, of voicing their opinion and being involved was more important for many children than the act of decision making. In general, children wanted to make decisions in partnership with their parents and doctors.

“The findings indicate that the issue of decision-making should be seen as being a continuum rather than on an ‘all or nothing’ basis. It should also be viewed as a process that is dependent on the type of decision, child, parents and health professional’s opinions, and the situational context.”

79. The provision of information is very important to children and young people in hospital as it helps them to prepare for different tests and treatments and thus reduces worry and fear of the unknown. Studies have shown that when children are informed about their condition and treatment, they are more willing to co-operate and in general, show less upset and recover well.⁷³

80. Parents can both help and hinder children in relation to provision of information and the child’s level of participation in the decision-making process. Parents are often seen as a gateway to information, managing what and how their children are told about their illness and treatment. Some parents play a key role in ensuring that their children are informed and prepared, whilst others actively constrain the level of information available to a child. Children who actively seek information can also be discouraged by difficulty in understanding medical terminology, and a lack of time or willingness on the part of a medical professional to explain things to them.

81. As mentioned above, a simple all or nothing approach is not appropriate in the context of children’s consultation and participation in health care decisions. Referring to Article 12 of the Convention on the Rights of the Child, giving children a voice in matters which affect them does not entail giving them the sole responsibility for all decisions. A research study carried out in 2006 for the Office of the Minister for Children concluded that:

“The findings indicate that decision-making for children is a complex process that evolves over time and that may be shared or contested with parents and health professionals depending on the type of decision. It suggests a pragmatic approach, which recognises that children need protection while at the same time allowing flexibility for the child’s emerging knowledge and self-determination.”⁷⁴

CHAPTER 2Development of a minority status

1. This chapter contains an account of the law relating to minority status and highlights the importance of reviewing different ages of consent in line with societal developments and the evolving capacity of children and adolescents. Part B begins with an overview of the guiding principles which underpin the creation of different age limits and ages of consent. The historical background and development of the age of majority is outlined in Part C. The legal rights and responsibilities granted before majority status is attained are outlined in Part D.

AGuiding Principles on Age Limits

1. Age limits are set out for the protection of children, to shield them from engaging in damaging behaviour and to prevent them from a level of decision-making which may be beyond their understanding and maturity. An age limit or an age of consent represents a legal boundary between protection of the child and recognition of the capacity of the child to undertake certain actions or make certain decisions. This is not to infer that the child has reached the age of majority, or is considered an adult. Upon reaching a particular age limit or age of consent the child is still a child and is entitled to the rights and protection which flow from such status.

2. Modern societies do not condense the distinctions between a child and an adult into a single rite of passage. Instead, the boundary between adulthood and childhood is marked by numerous junctures which enable the child to develop, and gradually accumulate the maturity and skills to make decisions as an adult. The gradual development and maturing process of assuming adulthood is reflected by legal punctuations where rights are assumed and responsibilities granted.

3. The differing ages of responsibility and entitlement which apply to different activities are complex and may seem irrational. Thus:

• A ten year old is deemed capable of committing murder or rape, but must reach 12 before being deemed capable of committing theft.¹

• A 14 year old can, subject to significant restrictions, begin to earn a livelihood.²

• A 16 year old may engage in full time employment and obtain a licence to drive a motorcycle but must reach 17 years of age in order to drive a car.³

• A person must be 18 years of age in order to vote or be a member of a jury.⁴

• A person must be 21 years of age in order to be elected to the Dail.⁵

5. To a certain degree, the complexity can be viewed as a reflection of the fact that growing up in Ireland today is in itself a complex process, in which multiple dimensions of the transition from childhood to adulthood must be provided for.⁶ The law reflects a progressive approach to the transition from child to adult, from incapacity to capacity, by incrementally granting legal rights and responsibilities to a child over the course of childhood and adolescence.

6. This can be viewed as part of the ‘evolving and enabling’ approach advocated by the Convention on the Rights of the Child 1989. Article 5 of the Convention reads:

“State Parties shall respect the responsibilities, rights and duties of parents….to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.”

7. Article 5 contains the principle that parents and others have the responsibility to continually adjust the levels of support and guidance they offer to a child, effectively enabling children to participate more in the realisation of their rights. These adjustments take account of a child’s interests and wishes as well as a child’s capacity for autonomous decision making and comprehension of what is in his or her best interests. A General Comment issued by the Committee on the Rights of the Child in 2005 emphasised the process of maturation and learning whereby children progressively acquire knowledge, competencies and understanding, and highlighted the importance of the enabling approach, stating that respect for young children’s evolving capacities is crucial for the realisation of their rights.⁷

“The more the child himself or herself knows, has experienced and understands, the more the parent, legal guardian or other persons legally responsible for the child have to transform direction and guidance into reminders and advice and later to an exchange on an equal footing. This transformation will not take place at a fixed point in a child’s development, but will steadily increase as the child is encouraged to contribute her or his views.”⁸

8. The Committee has stressed that the level of protection needed by the developing child at different stages changes over time, and parents and others have the responsibility to continually adjust the levels of support and guidance offered to a child. This point was echoed in the recommendation of the Joint Committee on Child Protection:

“the different ages of maturity and consent be reviewed, and kept under continuing review, in order to ensure consistency and coherence, and to ensure that sufficient recognition is given to the dawning maturity of children at appropriate ages”⁹

9. In general terms, therefore, the Commission concludes that three guiding principles can be applied to the creation and maintenance of different age limits that define the boundary between childhood and adulthood for specific purposes. First, legal age limits must strive to achieve a balance between the need to protect children and the importance of enabling them to exercise their own rights. Second, regular review ensures that age limits are in line with social realities and correlate with modern research regarding the cognitive and decision-making abilities of children. Third, review of age limits will also enhance consistency and reduce complexity and criticism of the various age limits in force.

BDevelopment of Minority Status

10. Section 2 of the Age of Majority Act 1985 currently defines a minor, for many, though not all legal purposes, as a person under the age of 18 years who is not or has not been married.¹⁰ Minority is a status which was recognised by the common law and goes back to the earliest times.¹¹ Traditionally, limitations have been placed on the legal capacity of a minor to protect the minor against his or her inexperience and improvidence.¹²

“Infants have various privileges, and various disabilities: but their very disabilities are privileges: in order to secure them from hurting themselves by their own improvident acts”¹³

11. The age of majority marks the cessation of minority status. Under Irish law, the age of majority is reached when a person turns 18 years of age, or in case he marries before attaining that age, upon his marriage.¹⁴ The occasion is noted in different ways and at different ages by various societies worldwide. The age at which the transition from minority to majority status takes place reflects the culture and laws of a particular society.

12. The change from minority to majority status can be viewed as a transition from childhood to adulthood, which is marked by the absorption of legal rights and responsibilities. When a child is recognised as an adult in the eyes of the law, he or she is deemed to have reached a level of maturity where protections such as age limits are no longer appropriate.

(i)Historical Background

13. Although the pre-Norman Brehon Laws recognised a form of legal protection for children, the concept of a fixed age at which a child would attain maturity was apparently not known to them. In general, a son had no power to make a binding contract during the life of his father and while he was a member of his father’s household.¹⁵ Following the Norman invasion of Ireland, English laws and systems of organisation were gradually imposed. Several hundred years passed before the English common law system, supplemented by statute law, effectively became law throughout Ireland.

14. The English Latey Committee Report on the Age of Majority traced the historical development of the common law age of majority back to the 9^th century.¹⁶ 15 years was the general age of majority in Britain and Northern Europe during the 9^th, 10^th and 11^th centuries. The Norman Conquest led to a greater emphasis on military power and the mounted knight. By the time of the Magna Carta the age for those in knight service had been raised to 21 years, possibly related to the ability to hold a heavy suit of armour whilst wielding a weapon¹⁷. The threshold of 21 years as a boundary between child and adulthood was well established under the feudal system of the Middle Ages, where 21 was the age of majority for holding land under military tenure. The Tenures Abolition Act 1660 ended the system of military tenure and 21 became the age of full capacity for socage tenure (tenure of land by services other than knight service).¹⁸

15. As years passed the age of 21 became firmly established as the age of majority. Minors could however partake in certain events and make certain decisions before reaching 21 years.¹⁹ A male aged 12 years of age could take an oath of allegiance and reached the age of legal discretion at 14 years upon which he could choose his guardian or marry. At 21 years he had reached full age and could aliene his lands, goods and chattels.²⁰ A female aged 7 years of age could be betrothed or given in marriage, was entitled to a dowry at 9 years of age and was considered mature enough to consent to marry at 12 years of age. Like a male, she reached the age of legal discretion at 14 years and attained majority status at 21 years of age. It is clear that much of the historical background and development of the law regarding the age of majority and the threshold of 21 years was derived from ownership and legal rights over land.

16. Throughout the 1960’s and 1970’s the law relating to majority status was the subject of considerable assessment. A consensus developed in common law jurisdictions in favour of lowering the age of majority from 21 years to, in most cases, 18 years. The Report of the English Latey Committee proved influential, particularly its review of the history of the age of majority and the statement that:

“there is nothing particularly god-given about the age of twenty-one as such”.²¹

(ii)Council of Europe Resolution on the Lowering of the Age of Full Legal Capacity

17. In 1970 the Council of Europe’s Committee on Legal Co-operation established a committee to consider the question of full legal capacity. The Committee felt that new considerations of a biological, family and social character had demonstrated the need to review the age at which a person acquired full legal capacity.²² Young people were maturing earlier than before due to improving conditions of hygiene and nutrition, and a longer term of compulsory schooling. They were acquainted with social, economic and political problems and playing an important role in society. Following this analysis, a 1972 Committee of Ministers Resolution recommended that Member States should lower the age of majority to below 21 years, and if deemed advisable, fix the age at 18 years.²³ The Resolution acknowledged the fact that young people were equipped with the necessary information and education to meet the exigencies of life. Lowering the age of majority would encourage a sense of responsibility in young people and achieve greater unity among member states. Regarding Member States who wished to retain an age of majority above 18 years, the Committee recommended that governments consider granting certain minors capacity to carry out everyday transactions and act independently in appropriate fields.

18. In 1983, the Commission published a Report on the Law Relating to the Age of Majority, the Age for Marriage and some Connected Subjects recommending that the age of majority be lowered to 18 years.²⁴ The 1983 Report largely followed the provisional recommendations made in the Commission’s Working Paper on the Age of Majority the Age for Marriage and some Connected Subjects²⁵. Later that year, the Oireachtas Joint Committee on Legislation endorsed the Commission’s recommendations stating:

“A reduction in the age of majority will go some way to erase obsolete laws which do not reflect the ever growing consciousness that our young people with their sense of initiative, enterprise and adaptability are our true wealth.”²⁶

(iii)Change in Irish Law on Age of Majority

19. Following the Commission’s 1983 Report and its endorsement by the Oireachtas Joint Committee on Legislation, the Age of Majority Act 1985reduced the age of majority from 21 to 18 years.²⁷ It is notable that a child is defined as a person under 18 years of age for the purposes of the Child Care Act 1991, the Children Act 2001 and the Guardianship of Infants Act 1964. 18 years is the age used in respect of matters of custody, access, maintenance, social welfare and taxation. The Convention on the Rights of the Child 1989 defines a child as “every human being below the age of 18 years unless under the law applicable to the child majority is achieved earlier.”

20. A person’s 18^th birthday clearly marks an important watershed and signals the end of the special protections granted under minor status. As outlined above, however, the transition from a child to an adult is not an instant occurrence and the distinction between an adolescent and an adult is not demarcated by a single rite of passage.

(iv)Different Ages of Capacity in Irish Law

21. The Commission’s 1977 Working Paper on the Law Relating to the Age of Majority, the Age for Marriage and some Connected Subjects contains a study of the various relationships between age and the law, from 5 years of age up to 35 years of age.²⁸ There are a broad range of legal provisions which are directed at children and the gradual assumption of adult rights and responsibilities. These provisions cover a range of activities such as employment, education, vehicle driving licences, criminal responsibility and consumption of alcohol and tobacco. It is interesting to study how the different ages connected to different activities and legislative provisions have changed over the years, in response to changing circumstances and attitudes. For example, under the Children Act 1908it was an offence to give intoxicating liquor to a child under 5 years of age.²⁹ The Mines and Quarries Act 1965 stated that a child under the leaving school age of 15 years could not be employed at a mine. A male, upon reaching the age of 18 could qualify for unemployment assistance in accordance with the provisions of the Unemployment Assistance Act 1933³⁰.

CRights and Responsibilities of Minors

22. Current employment legislation states that a child over the age of 13 years can undertake certain types of employment of a cultural, artistic sporting and advertising nature.³¹ Such employment is authorised by Ministerial Regulations and cannot interfere with school attendance or the safety and development of the child. In relation to other types of employment, the Protection of Young Persons Employment Act 1996 sets 14 as the minimum age for employment and is based on a graduated scheme which allow older children to work an increasing number of hours provided that the work does not interfere with their health, development or education.³²

23. A person’s 16^th birthday is a significant point in the progression from minor to majority status. Traditionally, a 16 year old reached a significant measure of independence upon his or her 16^th birthday. The Children Act 1908 defined a child as a person under the age of 15 years of age and a young person as a person between the ages of 14 and 16³³. Under the Social Welfare (Supplementary Welfare Allowances) Act 1975a man had to maintain his children until they reached the age of 16.³⁴ Under the Marriages Act 1972 a 16 year old could marry. Under the Health Acts 1947 to 1970, a person aged 16 and over was treated as an adult. These provisions have been amended in line with changes to modern society however the traditional threshold of 16 as a indication of independence has been retained. For example, a 16 year old has finished compulsory education and can engage in full time employment. Under road traffic legislation, a 16 year old can drive certain types of vehicles such as motorcycles, tractors and mopeds and a 17 year old can drive most vehicles.³⁵

24. The Protection of Young Persons Employment Act 1996 defines a child as a person under 16 and defines a young person as a 16 or 17 year old.³⁶ For the purposes of compulsory education, under the Education (Welfare) Act 2000, a child is defined as a person between 6 and 16 years old. This is in line with the 1994 Directive on the Protection of Young People at Work which defines a child as any young person less than 15 years of age or subject to compulsory full time schooling.³⁷ In a similar vein, the Child Abduction and Enforcement of Custody Orders Act 1991 which gave domestic effect to the Hague Convention on the Civil Aspects of International Child Abduction ceases to apply when a child reaches the age of 16.³⁸

25. A motion for a resolution was presented to the Parliamentary Assembly of the Council of Europe to lower the voting age to 16.³⁹ The motion called for an investigation on the advantages and drawbacks of engaging and securing young people’s participation in the democratic process by lowering of the voting age to 16 in all member countries of the council of Europe.

26. In the context of health care, the age of 16 has been accepted as an important watershed in various jurisdictions and has been largely accepted as the age of consent to medical treatment. Section 23 of the Non-Fatal Offences Act 1997 discussed in chapter 4 states that a 16 year old may consent to medical treatment⁴⁰, and as mentioned above the Health Acts 1947 to 1970, treated persons aged 16 and over as adults. Article 4(1) of the European Communities (Clinical Trials on Medicinal Products for Human Use) (Amendment) Regulations 2004 state that an adult is a person who has attained the age of 16 years⁴¹.

27. Aside from reaching the age of 16 and 18, another important watershed for children in Irish law is the age at which they can be held responsible for criminal actions. There is a discernable difference in approach between criminal and civil responsibility, with the law imposing criminal responsibility on a child from a young age whilst simultaneously withholding civil responsibility. Commentary on the 1985 UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) suggests there should be a close relationship between the age of criminal responsibility and the age where civil and social responsibilities are granted.⁴² A General Comment adopted by the Committee on the Rights of the Child identifies 12 as the minimum age of criminal responsibility and promotes a higher age.⁴³

28. Under common law the age of criminal responsibility in Ireland was set at 7 years of age, based on a conclusive presumption that children under seven were doli incapax (incapable of crime) because they could not form the requisite mens rea. Children aged between 7 and 14 years of age were covered by a rebuttable presumption, which could be rebutted by showing that the child in question knew the difference between right and wrong. The age of criminal responsibility has undergone substantial change in recent years.⁴⁴ Section 52 of the Children Act 2001 introduced provisions to raise the age of criminal responsibility to 12 years. However, section 52 of the 2001 Act was not commenced and it was ultimately amended by section 129 of the Criminal Justice Act 2006which introduced a dual approach to the age of criminal responsibility. As amended, the 2001 Act contains a general rule that children under 12 years of age cannot be charged with an offence. An exception however exists in relation to murder and rape offences, in respect of which criminal responsibility now applies from 10 years of age. In England, the age of criminal responsibility for all offences is set at 10 years of age under the Children and Young Persons Act 1933, as amended.⁴⁵ This has been criticised, as most European countries have adopted higher ages of criminal responsibility.⁴⁶

    Reviewing Ages of Consent

29. This chapter provided an overview of the law relating to minority status and places the present law within its historical context. As the 1983 Report of the Oireachtas Joint Committee Report on Age of Majority stated:

“A sense of the past may help us to understand the present but it should not determine our capacity to respond to new needs or to meet new challenges”⁴⁷

Society is continually evolving and the law must respond to such change by keeping the ages of consent under review and adapting to new developments and conditions. This point was echoed in 2006 by the Oireachtas Joint Committee on Child Protection, in its call to keep ages of consent under review and to acknowledge the capabilities of children by granting them legal capacity over different elements of their lives.⁴⁸

CHAPTER 3A Definition of medical treatment to meet the medical concerns of children and adolescents

AIntroduction

1. This chapter begins with a discussion of the extent to which it is possible to define the term “medical treatment” and associated wider terms such as “health care.” At present, there is no single all-purpose definition of these terms. This reflects their potentially wide-ranging scope of application and the ongoing use and development of new technologies and procedures in health care and medical practice. In Part B, the Commission discusses the different uses of the term “medical treatment” in Irish law and developments that have occurred in this respect in other countries. Part C explores the medical concerns of Irish children and young people in order to consider the types of treatments which are most important to them and their continuing development. In Part D, the Commission discusses how the issue of consent to medical treatment has arisen in many countries in the specific context of the provision of contraceptive advice and treatment to improve sexual health. The Commission discusses this with a view to setting out a number of general proposals on consent to treatment in Part E.

BDefining Health Care and Medical Treatment

(1)Ireland

2. At present, there is no explicit statutory definition of what constitutes medical treatment or wider terms such as health care. The various Health Acts refer to medical services, dental services, in-patient and out-patient services but do not offer definitions as to the precise meaning of medical treatment or health care. ¹ The absence of a single description of such terms is understandable because health care and medical treatment move at a rapid pace, encompassing new and improving technologies and procedures. Health care and medical practice, supported by new technology offers patients more hope of successful treatment and recovery than ever before.²

3. The Health Insurance Act 1994 contains a definition of “health services” for the specific purpose of the regulation of health insurance:

health services means “medical, surgical, diagnostic, nursing, dental, chiropody, chiropractic, eye therapy, occupational therapy, physiotherapy, or speech therapy services or treatment or services or treatment provided in connection therewith, or similar services or treatment.”³

4. Section 23(2) of the Non-Fatal Offences Against the Person Act 1997, which provides a defence to a charge of assault where a person aged 16 consents to medical treatment, states:

“In this section ‘surgical medical or dental treatment’ includes any procedure undertaken for the purposes of diagnosis, and this section applies to any procedure (including, in particular the administration of an anaesthetic) which is ancillary to any treatment as it applies to that treatment.”

5. The Law Society of Ireland’s Law Reform Committee suggested that the definition in section 23 includes exploratory acts for the purposes of diagnosis, as well as treatment. Furthermore, the inclusion of anaesthesia under the term ‘procedure’ suggests that procedure is intended to cover more than examination and non-invasive actions.⁴

6. The Child Care Act 1991seems to envisage a distinction between examination and treatment. Section 13(7) of the 1991 Act states that the court may give directions with respect to “the medical or psychiatric examination, treatment or assessment of the child”. The Law Society’s Law Reform Committee has recommended that the distinction between examination and treatment should be clarified in legislation, with examination defined as non-invasive, and invasive exploratory acts for the purpose of diagnosis included in the definition of treatment.⁵

7. Various law reform agencies in other countries have grappled with the question of how to define medical treatment. Generally speaking, most of the literature available from these bodies focuses on creating a broad definition of medical treatment ensuring that children have access to the types of medical care and treatment that they need.

(2)England

8. Section 8 of the English Family Law Reform Act 1969, which can be viewed as the statutory analogue for section 23 of the Non-Fatal Offences Against the Person Act 1997 states that “surgical, medical or dental treatment” includes any procedure undertaken for the purposes of diagnosis, and applies to any procedure (including, in particular, the administration of anaesthetic) which is ancillary to any treatment as it applies to that treatment.

9. The English Children Act 1989refers to medical and psychiatric examination and treatment but does not define these terms. The various pieces of legislation dealing with health care, medical practitioners, health insurance and so on contain different definitions in line with the different purposes of each Act⁶. For example, the Health And Social Care Act 2008 defines health care as “all forms of health care provided for individuals, whether relating to physical or mental health and also includes procedures that are similar to forms of medical or surgical care but are not provided in connection with a medical condition.”⁷

(3)Australia

10. The definition of medical treatment in the context of minor’s ability to consent to medical treatment has been addressed by the Law Reform Commission of Western Australia, the Queensland Law Reform Commission and more recently, in 2008 the New South Wales Law Reform Commission.

(i)Western Australia

11. In its 1988 discussion paper on Medical Treatment for Minors, the Western Australia Law Reform Commission defined medical treatment broadly, including services performed by health care professionals who are not doctors in the traditional sense, but carry out health procedures which are now viewed as routine and essential.⁸

(ii)South Australia

12. The Consent to Medical Treatment and Palliative Care Act 1995 provides a statutory framework to deal with issues of consent by adults and young people. Medical treatment is defined as “treatment or procedures administrated or carried out in the course of medical or surgical practice or by a dentist in the course of dental practice and includes the prescription or supply of drugs.⁹”

(iii)Queensland

13. In 1996 the Queensland Law Reform Commission published a report on minor’s consent to medical treatment, including a proposed legislative scheme. The proposed scheme divided children into groups based on age, enabling children to progressively make more and more decisions regarding their health and medical treatment.¹⁰

14. In the 1995 discussion paper that preceded the Report, the Queensland Commission discussed the issue of how to define medical treatment and requested comments on a suitable definition of ‘treatment’ and ‘health care provider’.¹¹ The discussion paper relied on broad definitions of the terms of medical procedure, treatment and health care provider. Upon consideration of the submissions received, the Queensland Commission decided that the term ‘treatment’ was too narrow, as the term is usually associated with procedures carried out by medical practitioners and dentists. The broader term ‘health care’ was favoured to cover the care provided to young people by the range of different practitioners recognised as in the business of improving the health of others. The Report set out the following definition:

“Health care of a young person is any assessment, care, treatment, service or procedure to maintain, diagnose or treat the young person’s physical or mental condition”.¹²

15. Regarding the term ’health care provider’ the Queensland Commission was anxious to ensure that a broad range of health care providers would be covered under the proposed legislative scheme.

“The doctor-patient relationship is not the only professional relationship concerned with addressing significant health related problems or concerns. Health care by nurses, dentists, counsellors, psychologists and numerous other health care providers also play an important role in ensuring the physical and psychological health and well-being of people”¹³

16. Furthermore, there are serious consequences of unsuitable or inappropriate care, regardless of whether the care is provided by a traditional or non-traditional health care provider. A broad definition of health care provider was adopted:

“For the purposes of this Report a ‘healthcare provider’ will be defined as a person who provides healthcare in the practice of a profession or in the ordinary course of business.”¹⁴

(iv)New South Wales

17. In 2004 the New South Wales Law Reform Commission published an issues paper on Minors Consent to Medical Treatment, which outlined the difficulty of creating a concrete definition of medical treatment; namely the difficulty of reaching a definition which does not exclude the broad range of alternative health services which are not traditionally recognised as medical services, but are beneficial to a person’s health and well-being.¹⁵ Initially, the New South Wales Commission adopted a narrow interpretation of medical treatment as a starting point for further debate and public consultation.

18. In the subsequent 2008 report Young People and Consent to Health Care the New South Wales Commission significantly broadened the definitions used, basing the proposed legislative scheme on the key terms of health practitioner, health service and health registration.¹⁶ Essentially, the Commission’s definition of medical treatment covers almost every service provided by a registered health professional.

19. A health service is defined as a service provided by a health practitioner, as a public or private service. An inclusive list follows, covering medical, dental, mental health, pharmaceutical and community health services. Alternative health care services are also included, as are any other services prescribed by regulation as a health service for the purposes of the legislation. Including a list in the definition was viewed as the most favourable option because it covers specific services but is not overly restrictive, as there are no definite limitations or exclusions. Predictive genetic testing and palliative care are included as a medical health service however the New South Wales Commission explicitly stated that the ordinary meanings of ‘medical treatment’ and ‘palliative care’ are not broad enough to include the withdrawal of life-sustaining treatment. Furthermore, end-of-life decisions were outside the New South Wales Commission’s terms of reference.

20. The definition of a health practitioner is confined to practitioners registered under a health registration act. Unregistered practitioners are largely unregulated and do not undergo standardised training. Under the proposed scheme, practitioners are given significant responsibility to assess the competence and capacity of a minor, and the New South Wales Commission felt it would not be appropriate to bestow such responsibility upon unregistered practitioners.¹⁷

(4)Canada

21. Several of the law reform agencies in Canada have also examined the issue of minor’s consent to medical treatment. In 1975 the issue of the age of consent to medical, surgical and dental treatment was discussed at the Conference of Commissioners on Uniformity of Legislation in Canada. An Act entitled Medical Consent of Minors was adopted, which defined medical treatment as:

    1. “Surgical and dental treatment,

    2. Any procedure undertaken for the purpose of diagnosis

    3. Any procedure undertaken for the purpose for preventing any disease or ailment

    4. Any procedure undertaken for the purpose of preventing pregnancy

    5. And any procedure that is ancillary to any treatment as it applies to that treatment.”

22. A number of provinces and territories throughout the country have defined terms such as ‘health care’ and ‘treatment’ in various pieces of legislation, primarily dealing with substitute consent to medical treatment. The definitions in general tend to be broad, covering diagnostic and cosmetic procedures. For example:

(i)Alberta

23. The Alberta Law Reform Institute published a background paper Consent of Minors to Medical Treatment and a report Consent of Minors to Healthcare in 1975.¹⁸ The Commission decided to use the term health care, defined as “treatment by a qualified medical or dental practitioner in the course of his practise, and includes mental and surgical care, prevention and diagnosis of disease or ailment, the administration of anaesthetics, procedures for the purpose of preventing pregnancy, and treatment given by any person pursuant to directions given in the course of practice by a qualified medical or dental practitioner, but does not include surgical sterilization.”¹⁹

(ii)Prince Edward Island

24. The Consent to Treatment and Health Care Directives Act 1988 defines treatment as “a procedure or set of procedures that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of treatment or group of associated treatments²⁰”

(iii)Manitoba

25. The Health Care Directives Act 1992defines treatment as “anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health related purpose and includes a course of treatment.”²¹

(iv)British Columbia

26. Section 17 of the Infants Act 1996 provides for the consent of an infant to medical treatment and defines healthcare as “anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of healthcare”.

27. The Health Care (Consent) and Care Facility (Admission) Act 1996creates a distinction between major and minor health care. Health care is defined as “anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other purpose related to health.”

Major health care means “(a) major surgery (b) any treatment involving a general anaesthetic (c) major diagnostic or investigative procedures (d) any health care designated by regulation as major health care.

Minor health care means “any health care that is not major health care, and includes (a) routine tests to determine if health care is necessary, and (b) routine dental treatments that prevents or treats a condition or injury caused by disease or trauma, for example

1. cavity fillings and extractions done with or without local anaesthetic and

2. oral hygiene inspections.”

(v)Ontario

28. The Health Care Consent Act 1996defines treatment as “anything done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health related purpose, and includes a course of treatment, plan of treatment or community treatment plan²²” The definition excludes the assessment or examination of a person to determine the general nature of the person’s condition, and other non-invasive acts such as taking a person’s health history.

(vi)Yukon

The Decision Making, Support and Protection to Adults Act 2003defines health care as “anything done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of healthcare but does not include anything designated by the regulations as not constituting healthcare.”²³

(5)Conclusions

29. For the purposes of this Consultation Paper, the aim of the Commission is to establish an inclusive and workable definition of medical treatment, in the context of access to health care by children and young people. The definition contained in section 23 of the Non-Fatal Offences Against the Person Act 1997 could act as a guide for a future definition, as could the definition of health services used in the Health Insurance Act 1994. The broader definitions from other countries could also serve as guides. In this respect, the Commission provisionally recommends that, in the context of determining the scope of consent to medical care and treatment, a broad definition of health care and treatment should be used that encompasses diagnosis and treatment, and invites submissions on the precise form of this definition.

30. The Commission provisionally recommends that, in the context of determining the scope of consent to medical care and treatment, a broad definition of health care and medical treatment should be used to encompass diagnosis and treatment and invites submissions on the precise form of this definition.

CHealth Care and Medical Concerns of Irish Children

31. In order to reach a relevant and practical definition of medical treatment, it is useful to observe the medical concerns of Irish children in order to assess the types of treatment which are most important to them and their continuing development.

32. Adult health problems, mental and physical, can stem from childhood experiences. A high standard of children’s health care is of the utmost importance and prioritising the health of children is an investment in the future. Article 24(1) of the 1989 UN Convention of the Rights of the Child provides:

“State Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health.”²⁴

(1)General Health

33. The health and well being of children is a priority in Ireland. 40% of all submissions received as part of the public consultation preceding the creation of the State’s National Children’s Strategy focused on children’s health and well being.²⁵ The submissions reflected an equal focus on mental and physical health, and an awareness of how the child is being treated, and should be treated, in the health care setting.

34. There are a range of reports and policy documents available on children’s health covering alcohol and drug use, obesity, exercise, smoking, sexual health and mental health. Generally speaking, Irish children and young people are healthy and reports on children’s health have shown considerable improvement in recent decades. The most recent report from the Health Behaviour in School Aged Children project (HSBC) published in 2009, studied the health and wellbeing of 11, 13, and 15 year olds in Ireland, England, Scotland and Wales. The percentage of young people who reported having good or excellent health was highest in Ireland, at a total of 88.4%, with older age groups reporting slightly lower levels of perceived health and life satisfaction.²⁶

35. However certain indicators show the health of Irish children as lagging behind other jurisdictions, and improvements have not been as sustained as one would have hoped. Conditions such as cystic fibrosis, spina bifida and downs syndrome are high amongst Irish children.²⁷ Cancer in childhood is rare by contrast with its prevalence in adulthood, yet it is one of the most frequent causes of non-traumatic deaths in children in Ireland. Overall incidence of childhood cancer is comparable to European findings albeit slightly higher, however survival rates are also above the EU average²⁸. A 2008 report on the State of the Nations Children looked at chronic health conditions and hospitalisation and found that the total number of hospital discharges amongst children aged 1-17 years increased by 8,733 between 2003 and 2007, with a total of 144,703 hospital discharges in 2007.²⁹

36. The National Disability Survey 2006 estimated that 11% of people with a disability are in the 0-17 age group, a relatively high statistic when one considers that this age group accounts for one quarter of the total population.³⁰ 75% of children with a disability have an intellectual and learning difficulty. In general, most people with learning, intellectual or speech difficulties acquired the disability in childhood. 13% of people with a mobility or dexterity disability had also acquired the disability from birth. The 2008 State of the Nations Children Report found that in 2007, the number of children registered as having an intellectual disability was 7,802.³¹ The number of children registered as having a physical and/or sensory disability was 8,373.³²

(2)Mental Health³³

37. The World Health Organisation has highlighted mental health as a vitally important public health issue which affects hundreds of millions of people worldwide.³⁴

“Mental health is a most important, maybe the most important, public health issue, which even the poorest society must afford to promote, to protect and to invest in.³⁵”

38. The World Health Organisation has estimated that one in four families has at least one member with a mental disorder at any point in time³⁶. Mental health problems are increasing, with one in five people in Europe expected to develop a depression during their lifetime.

39. The extent of mental health problems amongst Irish children and young people is a growing concern. There is no single method of assessing mental illness amongst children but different surveys and research studies suggest that mental illness is increasing amongst children and young people in Ireland. Studies have shown that 18% of the child population under the age of 16 will experience significant mental health problems at some stage, whilst a much smaller proportion, approximately 3-4% will suffer from a psychiatric disorder such as anorexia or an obsessive compulsive disorder³⁷.

40. A study carried out in 2006 in the south east of Ireland revealed significant numbers of children and young people dealing with mental health problems.³⁸ Young children under 5 years of age were found to be suffering from anxiety, social phobias and obsessive compulsive disorders, with 14.98% of this group qualifying as having one psychological disorder³⁹. The study estimated that 18.53% of 6-11 year olds and 21.11% of 12-18 year olds met the criteria for at least one psychological disorder⁴⁰.A number of children had suicidal thoughts and had formulated a suicide plan⁴¹ and a significant number had attempted suicide, 5% in the past year. There appears to be a consensus that the overall prevalence rate for child and adolescent mental health problems has been rising in nearly all developed countries⁴².

41. Over one-third of submissions received during the consultation for the National Children’s Strategy dealt with mental health concerns, in particular the need for improved provision of psychiatric and counselling services for children and adolescents.⁴³ Dáil na nÓg chose to focus on the issue of mental health as one of two key themes in 2008, and held debates on issues such as bullying, suicide, and drug and alcohol abuse.⁴⁴ The Ombudsman for Children has also expressed concern over the prevalence of mental health problems amongst children.

42. The 2008 report on the State of the Nations Children provides a snapshot of Irish children’s health and standard of living. Irish children and young people are prone to early use and abuse of tobacco, alcohol and drugs. Alcohol abuse by children and adults remains a serious issue of concern in Ireland. A range of different studies and surveys have pointed to the high levels of alcohol consumed by Irish children and young people, particularly in comparison to their European counterparts. The State of the Nations Children report for example, revealed that 20.4% of children aged between 10 and 17 years of age reported being drunk in the last 30 days, a figure which placed Ireland 2^nd highest in a table of other countries in terms of children’s alcohol consumption.⁴⁵ The 2009 report of the European School Survey Project on Alcohol and other Drugs (ESPAD) found that 78% of Irish students had drunk alcohol in the past 12 months, which was similar to the average ESPAD student. Irish students however were intoxicated more often, with 47% stating that they had been intoxicated in the past 12 months.⁴⁶

43. As regards smoking, it is clear that the majority of smokers begin smoking in their youth. A survey of adult smokers revealed that 53% had started smoking before the age of 15⁴⁷. There has been a considerable fall in the numbers of students smoking, evidenced by the 2007 ESPAD report⁴⁸ however tobacco use remains an issue of concern, particularly for teenage girls⁴⁹.

44. Looking at drug use amongst children and adolescents, 16% of children have reported using cannabis during their lifetime, with usage rates highest amongst 15-17 year olds⁵⁰. A more recent report has confirmed these statistics, with a finding that 15.7% of children aged 9-17 have reported using cannabis at least once in their lifetime⁵¹. Research carried out in inner-city Dublin found that drug use was initiated on average at 12 and 13 years of age, an indication of the link between drug use and socio-economic factors.⁵² The 2007 ESPAD report found that lifetime use of cannabis (20%) and other substances (10%) by Irish students was average compared to students from other countries however use of inhalants in Ireland (15%) was more prevalent than other countries.⁵³ A lack of a child focused approach to inform policy on drug usage means that although children are prosecuted for drugs offences, there is no specialist counselling and treatment service for children with drug addiction problems.⁵⁴

(3)Voice of the Child in the Health Care Setting

45. Children who suffer from a disease, a chronic illness or a disability, are sometimes viewed differently by their peers. In many ways they are different:

“In the context of healthcare the reality is that children do not go through the same transitions at the same time.⁵⁵”

46. From a young age, they are thrust into the medical domain and undergo a steep learning curve. Children adapt to a routine of hospitals, doctor’s appointments, treatment and medicine. They become familiar and adept at dealing with the health problems and constraints they face on a daily basis. Research has shown how experience of illness enables children to develop the understanding and maturity to take responsibility for their health and to make health care decisions⁵⁶.

47. Such personal experiences add greatly to the evolving capacities of children and can place them ahead of their peers in terms of maturity, responsible thinking and decision making. This must be taken into account when treating children and considering health care and treatment options. As discussed in chapter one⁵⁷, Article 12 of the the UN Convention of the Rights of the Child provides:

“State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”

48. For children dealing with considerable and permanent health problems, this right takes on an added significance and it is of the utmost importance that these children are fully involved in the management of their medical care. Submissions received during the public consultation on the National Children’s Strategy focused on the experience of the child in hospital, and the need to create a partnership approach encompassing health care professionals, children and parents.

49. Article 7 of the UN Convention on the Rights of Persons with Disabilities emphasises the importance of Article 12 of the Convention on the Rights of the Child in the context of children with disabilities:

“State Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realise that right.”

50. Bearing in mind the requirements of Articles 12 and 24(1) of the UN Convention of the Rights of the Child 1989, the Commission acknowledges that the right of children to be heard in matters affecting them takes on an added importance when dealing with serious and/or long term health concerns and has provisionally concluded that this should form a guiding principle in its analysis of this area of law.

51. The Commission provisionally recommends that, in recognition of Article 12 of the 1989 UN Convention on the Rights of the Child, a child who is capable of forming his or her own views has the right to express those views freely in all matters affecting him or her and that the views of the child should be given due weight in accordance with his or her age and maturity.

(4)Adolescent Health Concerns

52. Much of the literature on the medical concerns of children is focused on adolescence - a stage of life which is open to various definitions and interpretations. Indeed adolescence can be viewed as a phase rather than a specific age or period in time. The World Health Organisation defines adolescence as a distinct developmental period in the age group of 10-19 year olds.⁵⁸ Regardless of exact definition, it is sufficient to state that all children and young people under the age of 18 will undergo a period of adolescent change and development. This period of change and development is critical, as beliefs and behaviours developed in adolescence can be maintained throughout adulthood and can have a permanent impression on a person’s health.

53. The importance of the adolescent phase in a health context is well recognised and documented. In 2003, the UN Committee on the Rights of the Child issued a General Comment on Adolescent Health and Development in the Context of the Convention on the Rights of the Child⁵⁹. The Comment defined adolescence as:

“a period characterised by rapid physical, cognitive and social changes, including sexual and reproductive maturation; the gradual building up of the capacity to assume adult behaviours and roles involving new responsibilities requiring new knowledge and skills.”⁶⁰

54. The Committee noted that State parties have not given sufficient attention to the specific concerns of adolescents as rights holders and to the promotion of their health and development.⁶¹ Adolescents need to be recognised as active rights holders who have the capacity to become full and responsible citizens, given the proper guidance and direction. The right to express their views freely and have them taken into account under Article 12 of the Convention on the Rights of the Child is fundamental in realising the rights of adolescent’s to health and development.⁶²

55. The World Health Organization has focused on adolescent health needs and challenges, stating that adolescents today face more challenges than previous generations.⁶³ Adolescents are vulnerable to sexually transmitted infections, unplanned pregnancies, alcohol and drug abuse, eating disorders, and mental health problems particularly those who live in countries where adolescents are not viewed as a priority group in terms of health care provision.⁶⁴ Lifestyle decisions made during adolescence can greatly impact on health and mortality in later years. Binge drinking, regular drug use, poor eating habits, lack of exercise, low self esteem and stress are all risk factors which can be associated with an adolescent lifestyle.

56. The 2006 report by the Expert Group on Mental Health Policy, A Vision for Change emphasised that adolescence is a key stage of psychological development:

“It is a time of increased risk of poor mental health with anxiety, depression, psychosis, eating disorders, and substance misuse becoming more prevalent, as well as an increasing risk of deliberate self harm and suicidal behaviour⁶⁵”

57. There is a lack of designated facilities for adolescents within the medical setting⁶⁶. This was reflected in the range of submissions received during the consultation for the National Children’s Strategy, which consistently called for dedicated health services for adolescents – “the forgotten population”.⁶⁷ Adolescents are routinely placed in wards with children or elderly adults. These wards do not cater for the needs of adolescents which are different from those of both children and adults⁶⁸. Many adolescents, particularly those with chronic illnesses, have assumed a degree of responsibility for their own health care and treatment, which must be respected within the hospital environment. Adolescents need to be supported during the transition from paediatric to adult services, and encouraged to manage their own illness.⁶⁹ Numerous submissions put forward during the public consultation for the National Children’s Strategy highlighted this issue, and called for flexibility in hospital rules regarding adolescent patients, advocating improved levels of confidentiality and privacy.

58. Confidentiality is extremely important to adolescents⁷⁰. Paragraph 11 of the Comment on Adolescent Health and Development in the Context of the Convention on the Rights of the Child⁷¹ builds on Article 16 of the Convention of the Rights of the Child, which protects young people’s rights to privacy.⁷² Paragraph 11 states that:

“Health-care providers have an obligation to keep confidential medical information concerning adolescents, bearing in mind the basic principles of the Convention. Such information may only be disclosed with the consent of the adolescent, or in the same situations applying to the violation of an adult’s confidentiality. Adolescents deemed mature enough to receive counselling without the presence of a parent or other person are entitled to privacy and may request confidential services, including treatment.”⁷³

59. Furthermore, States should enact laws or regulations which stipulate that advice given to adolescents is confidential, in order to enable them to make an informed consent.⁷⁴ Such laws and regulations should specify an appropriate age for this process, or refer to the evolving capacities of the child. The Comment also states that training should be provided for health personnel on the rights of adolescents to privacy, confidentiality, to information about planned treatment, and their right to give informed consent to treatment⁷⁵.

60. The 2009 Guide to Professional Conduct and Ethics issued by the Medical Council of Ireland states that confidentiality is a fundamental principle of medical ethics, central to the trust between patients and doctors. Thus, when treating children and young people, health care professionals should remember their duties of confidentiality, subject to parental rights of access to medical records which may arise by law.⁷⁶ This indicates that there is no guarantee of confidentiality. It is not clear in this respect what age group the guidance is referring to. Presumably young people aged 16-18, who are entitled by law to consent to medical treatment would have their confidentiality respected.

    Mental Health⁷⁷

61. Adolescence, a time of rapid development, is a typical time for the onset of a variety of mental disorders which can have long-lasting implications⁷⁸. Adolescents from all social classes and backgrounds can develop a mental health disorder however certain adolescents are more at risk due to factors such as parental mental illness, family breakdown, abuse, learning disability, bereavement and substance abuse⁷⁹. Adolescents sometimes face a clash of personalities in their home and familial environment which can lead to disruptive behaviour and the development of mental health problems. Disruptive and problematic behaviour, however, can be the product of misunderstanding and hostility rather than an inherent mental health issue.

62. The National Economic and Social Forum published a report on Mental Health and Social Inclusion in 2007, stating that young people were a huge demographic group, vulnerable to mental ill-health and suicide. The report highlighted the need for urgent action, as early intervention and support can make a difference. The report also referred to the current barriers of access to services for young people, which can be overcome⁸⁰.

    Sexual Health

63. The link between adolescence and sexual health is well documented. The World Health Organisation has highlighted the issue on numerous occasions, referring to adolescent sexual health as one of the most important health-care issues of the twenty-first century.⁸¹

64. It is important to note that, while not all adolescents are sexually active, there has been a rise in sexual activity among young people in Ireland. It is difficult to access precise statistics regarding sexual activity amongst young people however there are indications that a substantial proportion of the adolescent population in Ireland are sexually active. Furthermore, there seems to have been a drop in the age of first time intercourse. Statistics used by the Irish Family Planning Association indicate that between 20 and 50% of young people in Ireland report having sexual intercourse before the age of 17⁸², the legal age of consent.⁸³

65. Statistics vary according to geographical location and socioeconomic circumstances, however the Irish Family Planning Association feel that similar levels of sexual activity are evident across the country, and young people face similar concerns, regardless of geographic location. A study published in 2003 found that 12% of college students had sexual intercourse before the age of 16. An earlier study carried out amongst youths in Cork city revealed that 22% of females and 32% of males had intercourse before the age of 16. A survey carried out in 1997 revealed that 21% of 15-18 year olds in Galway city and county have had intercourse⁸⁴. Another survey, also conducted in 1997 found that half of the participants surveyed, aged 17-20 years of age, had intercourse before the age of 16⁸⁵. A research report published in 2007 indicated that a third of 16 year old school goers may be sexually active⁸⁶.

66. Regardless of the exact figures, it is clear that a significant number of Irish adolescents are sexually active from a young age. The legal age of consent does not appear to be used as a guide or benchmark by young people contemplating initial sexual intercourse⁸⁷. This is partially recognised by the Criminal Law (Sexual Offences) Act 2006, and the requirement that the consent of the Director of Public Prosecutions is needed to prosecute those engaging in sexual intercourse before the age of consent.⁸⁸ Several agencies and interest groups have denounced the criminalisation of consensual sexual activity between adolescents under the age of 17, and feel that the sexual abuse of minors should be criminalised in a separate piece of legislation⁸⁹.

67. The average age of initial sexual intercourse has fallen sharply in several parts of the industrialised world such as England, Germany, France Finland, Denmark and the United States, with Ireland also witnessing this downward trend⁹⁰. The Crisis Pregnancy Agency has carried out a substantial body of research on adolescent sexual activity, stating that:

“Adolescents are negotiating sexual encounters and sexual intimacies at an increasingly young age, with a greater burden of individual decision making resting with the young person”⁹¹.

68. The most recent HSBC report contained a section on sexual health behaviours, although Irish participants were not included. The findings from England, Scotland and Wales indicate that between 28.8-35.6% of 15 year olds reported having had sex.⁹² Factors such as family affluence did not have any significant impact on statistics.

69. Early age of sexual activity has been linked to non-use of contraception⁹³. Young people are less likely to use contraception regularly, often making their first visit to a health care professional or sexual health service at a time of crisis.⁹⁴ A survey carried out by the Crisis Pregnancy Agency published in 2004, revealed that teenage participants were uneasy about using health services and used various strategies to have their needs for contraception met⁹⁵. A considerable proportion of participants in the survey experienced limited access to accurate and reliable information about contraception in general, which reflected a lack of trust in those around them not to reveal information to their parents⁹⁶. Young women revealed significant difficulties in accessing the contraceptive pill, and were uncertain at what age they could be prescribed contraception without parental knowledge or consent, with some participants lying about their age and the reason why they wished to be prescribed a contraceptive pill. Confidentiality and anonymity were key concerns, particularly for those living in rural areas⁹⁷.

70. The teenage pregnancy rate in Ireland remained relatively stable between 1991 and 2005, reaching a high of 25.7 per 1,000 females aged 15-19 in 1991.⁹⁸ The majority of teenagers who fall pregnant are aged 17-19, with few aged below 15.⁹⁹ Geographical variations can be observed, however the lack of statistics on teenage fertility and pregnancies makes it difficult to draw comparisons with other countries or pinpoint particular areas of concern¹⁰⁰.

71. There is broad consensus internationally that young people must have access to clear information on sexual health.¹⁰¹ The ineffective and piecemeal approach to sex education in Ireland, both inside and outside the school system has been documented¹⁰². There are serious gaps in young people’s knowledge regarding sexual health.¹⁰³ Research has indicated that communication with parents can help delay the age of first intercourse and increase the use of contraception. However it seems that most young people do not discuss sex with their parents or guardians, and rely on friends and the media for information¹⁰⁴. The lack of accurate and appropriate information and advice for young people is particularly alarming when one considers the consistent rise of sexually transmitted infections in Ireland, representing an increase of 298% from 1989 to 2000.¹⁰⁵

72. Paragraph 28 of the Comment on Adolescent Health and Development in the Context of the Convention on the Rights of the Child clearly states that adolescents must receive adequate and specific information on sexual and reproductive health, regardless of whether or not their parents consent¹⁰⁶. The Committee on the Rights of the Child specifically recommends that States play a pro-active role in the prevention of STD’s and early teenage pregnancies by implementing programmes which include access to contraception and family planning¹⁰⁷.

73. It its evaluation of Ireland’s implementation of the Convention on the Rights of the Child, the UN Committee on the Rights of the Child raised concerns in relation to sexual health of children and young people and their access to information. The Committee noted that the minimum legal age for consulting a doctor without parental consent was 16 years, and questioned where children and young people below the age of 16, who had sexual or drugs-related problems could go to talk to a doctor or a psychologist without informing their parents. The question seems to have been avoided, as the Irish delegation could not give a satisfactory answer.¹⁰⁸ The Committee expressed concern at the poor access to education and health services.

DThe Mature Minor – Access to Medical Advice and Treatment

74. The issue of the capacity of a person under the age of 18 to consent to medical treatment has arisen in many countries in the specific context of the provision of contraceptive advice and medical treatment to prevent pregnancy. This has given rise to litigation (such as the Gillick¹⁰⁹ case in England) and legislation, to set out the extent of the capacity of a person under the age of consent in criminal law to medical treatment in that context.¹¹⁰

(a)Availability of contraception

75. UNICEF has concluded that achieving a reduction in the teenage birth rate is based on improving accessibility to contraception and appropriate sex education, which enables teenagers to make informed and educated decisions.¹¹¹ As mentioned above, young people have limited access to clear and appropriate information and sex education.

76. It is difficult to gauge the precise nature or type of access that Irish children have to contraception. Health care professionals are, in essence, caught in a legal vacuum because the age of consent in criminal law for sexual intercourse is 17 years. They are thus uncertain regarding the interaction between the legal age of consent, the age of consent to medical treatment, ethical principles of confidentiality and their responsibility to act in the best interests of the patient. The Irish Family Planning Association has highlighted the uncertainty and reluctance on behalf of doctors to deal with minors who request sexual and reproductive advice and treatment. There are no guidelines on how a health care professional should advise and care for an adolescent seeking contraceptive treatment and advice. Such ambiguity has an adverse effect on young people who are reluctant to seek treatment and are putting their health at risk by engaging in unsafe sexual practices. The Crisis Pregnancy Agency confirmed the difficulties young people face in obtaining advice and treatment.

77. Condoms are available via vending machines and shops, and young people aged 16 years of age can consent to medical treatment, which presumably covers prescriptive contraceptives. Section 23(1) of the Non-Fatal Offences Against the Person Act 1997 states:

“The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his or her person, shall be as effective as it would be if he or she were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his or her parent or guardian”

78. Section 23 and its implications are discussed in detail in Chapter 4¹¹². For present purposes, it is sufficient to state that a 16 year old may consent to medical treatment. However the Irish Family Planning Association has stated that some doctors are reluctant to prescribe contraceptives to anyone under the age of 17, and there have been incidents where a doctor has breached the confidentiality of the patient in question by informing the patient’s parents. There have also been situations where a health care professional has reported the incident to the Gardai Síochána or the Health Service Executive as a potential criminal act. The provision of contraceptives to a person under 17 years of age, however, is not illegal. Under section 4 of the Health (Family Planning) (Amendment) Act 1992, contraceptives may be sold to a person if they are named in a prescription, in writing, by a registered medical practitioner.¹¹³

79. The legal position of doctors regarding the prescription of contraceptives to females aged below 16 or 17 years of age has never been challenged¹¹⁴. The law in this area is particularly unclear, as section 23 of the 1997 Act does not explicitly prohibit children under the age of 16 from consenting to medical treatment. It is probable that doctors, using their discretion in the best interests of the patient, prescribe contraceptives to females aged below 16 years of age. There have been reports of doctors facing increasing requests from females under the age of 16 for the morning-after pill or the contraceptive pill¹¹⁵.

80. Contraception is regulated by prescription and constitutes a form of medical treatment, but is more often considered as a social issue rather than a medical or legal concern. The social ramifications and public scrutiny of any legislation or regulation regarding contraception, particularly to those aged less than 17 years of age, is obvious. Any scheme to regulate children’s access to contraceptive treatment must seek to occupy a middle ground position, which does not condone early sexual activity whilst ensuring that young people have access to necessary medical treatment.

(b)The development of “mature minor” rules

81. The development and operation of mature minor rules in England, Scotland, Australia, Canada and New Zealand are discussed in detail in Chapter 4, as the present discussion is focused on sexual and reproductive health¹¹⁶.

(i)UK: The Gillick case and the mature minor rule

82. The decision of the House of Lords in Gillick v West Norfolk and Wisbeck Health Authority 1986¹¹⁷ has been described as the most significant of the 20^th century on the legal relationship between parents and children.¹¹⁸ It greatly influenced the expansion of the mature minor rule, which has been developed in Australia, New Zealand and Canada.

83. The case arose as a response to a circular issued by the English Department of Health and Social Security which stated that a doctor would not be acting unlawfully if he or she, acting in good faith, prescribed contraceptives to a girl under the age of 16 to protect her from the harmful effects of sexual intercourse. The claimant was a mother of 5 daughters under the age of 16 who sought assurances from her local health authority that her daughters would not receive contraceptive advice without her consent. She also sought a declaration that the advice contained in the circular was unlawful as it breached her parental rights. The claimant argued that the circular advised doctors to commit an offence by encouraging unlawful intercourse with a girl under the age of 16, contrary to sections 6 and 28 of the English Sexual Offences Act 1956. The claimant lost at first instance but was successful in the English Court of Appeal. The case was then brought before the House of Lords.¹¹⁹ By a majority of 3-2, the House of Lords found in favour of the health authority and rejected the argument that children under 16 years of age could not consent to medical advice or treatment.

84. The complexity involved in prescribing contraception to a minor who is not deemed old enough, in the eyes of the law, to consent to sexual intercourse, was discussed by the House of Lords. The majority judges rejected the submission that a doctor who provided contraceptive advice and treatment to a girl under 16 would be committing a criminal offence by aiding and abetting the commission of unlawful sexual intercourse. Lord Fraser focused on the intention of the doctor – if the doctor’s intention was to act in the best interests of the patient in question, the doctor would not be committing a crime. Moreover, if doctors were criminalised for prescribing contraception, parents who consent to contraceptive treatment on behalf of their daughters could be faced with the accusation of criminal wrongdoing. Lord Fraser also referred to the fact that under criminal law, a girl under 16 years of age who has sexual intercourse does not commit an offence herself, rather her partner does¹²⁰.

85. Lord Scarman, in agreement with Lord Fraser, also emphasised the intention of the doctor in question, and stated that contraceptive treatment could only be prescribed to a female under the age of 16 if she has the capacity to consent or if exceptional circumstances exist which justify a doctor in exercising his clinical judgement without parental consent. The doctor must make a medical judgement based on what he honestly believes to be necessary for the physical, mental and emotional health of the patient. ¹²¹

86. Lord Bridge spoke of the public policy aspect underlying the criminal sanction regarding men who engage in sexual intercourse with females under 16 years of age. The policy consideration underlying the criminal sanction is the protection of young girls from the untoward consequences of intercourse, such as pregnancy, possibly resulting in abortion or the birth of a child to an immature or irresponsible mother. It would, therefore be contrary to public policy to criminalise the provision of contraception to females under the age of 16. ¹²²

87. The minority opinions in Gillick revealed an opposing view to the legality of prescribing contraceptives to a female under the age of 16. Lord Brandon stated that to advise a female under the age of 16 on contraceptive matters and to prescribe contraception involves the promotion, encouragement or facilitation of sexual intercourse, contrary to public policy, by that girl with a man. Lord Brandon dismissed the reasoning that girls under the age of 16 will have sexual intercourse regardless of the impeded access to contraception, stating:

“if all a girl under 16 needs to so in order to obtain contraceptive treatment is to threaten that she will go ahead with, or continue, unlawful sexual intercourse with a man unless she is given such treatment, a situation tantamount to blackmail will arise which no legal system ought to tolerate. The only answer which the law should give to such a threat is ‘wait till you are 16’.”¹²³

88. Lord Brandon’s view of the law was that any prescription of contraception to a female under 16 years of age is illegal, regardless of parental knowledge and consent.

89. Lord Templeman, although in agreement with Lord Brandon on several points, differed on the issue of contraceptive treatment where parental consent is forthcoming. He stated that although the criminal law is aimed at preventing unmarried girls under the age of 16 from having sexual intercourse, if a girl cannot be deterred, then contraceptive facilities may be provided. However, Lord Templeman was of the view that a doctor may only prescribe contraception if there is parental consent. Where doctor and parent are in agreement that contraceptive treatment is in the best interests of the patient in question, there is no legal bar to the treatment. Without parental consent however, a girl aged less than 16 years of age should not be able to access contraception.

“There are many things which a girl under 16 needs to practice but sex is not one of them”¹²⁴.

90. The views put forward by the minority are understandable; indeed many would agree that it is not in the best interests of young people to engage in sexual intercourse at an early age. However, this is to ignore the changes which have occurred in society and the fact that there is a proportion of the teenage population who are engaging in sexual intercourse. Lord Fraser referred to the importance of acknowledging that societal attitudes and customs change,¹²⁵ with Lord Scarman stating that:

“The law ignores these developments at its peril¹²⁶.”

91. In relation to the issue of consent to contraceptive treatment by children under 16 years of age, Lord Fraser set out a number of guidelines which should apply in this respect:

“The doctor will, in my opinion, be justified in proceeding without the parents consent or even knowledge provided he is satisfied on the following matters:

1. that the girl (although under 16 years of age) will understand his advice

2. that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice

3. that she is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment

4. that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer

5. that her best interests require him to give her contraceptive advice, treatment or both without parental consent.¹²⁷”

92. These factors, often referred to as the “Fraser Guidelines” are widely followed in England by health care professionals in the context of contraceptive advice, and have also formed the basis for comparable mature minor guidance in other States.

93. Following the Gillick case, the legal position in England is that a person aged 16 years can consent to medical treatment, without parental consent or involvement. A person aged less than 16 years of age is subject to the mature minor rule, which means that a minor can consent to medical treatment if he or she fully understands the consequences of the treatment. Practically speaking, the assessment of the minor’s maturity and the decision regarding the minor’s level of comprehension rests with the doctor.

94. The Fraser guidelines are followed as best practice in England regarding the provision of contraception to young people under the age of 16, as set out in the 2004 Department of Health guidelines¹²⁸. The guidelines clearly state that doctors and health care professionals have a duty of care and confidentiality to all patients, including young people under the age of 16. Young people under 16 years of age are the group least likely to use contraception and concern about confidentiality is the main deterrent to seeking advice and treatment¹²⁹. The guidelines seek to reassure young people under the age of 16 by clearly stating that they have the same right to confidentiality as adults. There may be circumstances however, where this right is not absolute therefore if a health care professional believes there is a risk to the health, safety or welfare of a young person or others which is so serious as to outweigh the young person’s right to privacy, they should follow child protection protocols.

95. A challenge to the legality of the 2004 Department of Health guidelines came before the courts in R (Axon) v Secretary of State for Health.¹³⁰ The circumstances were similar to those in Gillick and the case was based on a challenge to the duty of confidentiality owed to children seeking advice on sexual matters, including abortion. The claimant argued that guidelines which stated that children under 16 years of age are owed the same duty of confidentiality as any other person interfered with her rights and responsibilities as a parent, and were also incompatible with the Gillick case. Furthermore, it was argued that the guidelines were incompatible with Article 8(1) of the European Convention on Human Rights¹³¹.

96. In the English High Court, Silber J outlined the tension caused by two competing principles¹³². The first principle is that of the competent young person, an autonomous being, who is entitled to confidentiality and should be allowed to make decisions about his or her health. The second principle concerns the parent with responsibility for the health and welfare of the young person, who should be informed if a medical professional is providing advice and treatment on sexual health to the young person. Silber J also spoke of the significant public policy dimension which plays a part, referring to evidence which indicates that without a guarantee of confidentiality, young people will not seek advice or treatment from medical professionals which may lead to adverse consequences.

97. It was noted at the outset that the application was concerned with young people who would not be persuaded to notify their parents or let the medical professional inform them. Silber J stated that there was nothing in his judgement which was intended to encourage young people to seek or obtain advice or treatment without first informing their parents and discussing the situation with them. In the overwhelming majority of cases, the best judges of a young person’s welfare are his or her parents.

98. The claimant outlined the obligation owed by a parent to a child under the Children Act 1989, stating that parents have a duty to protect their children and to guide them on various issues including health and social issues. Disclosure to parents by a medical professional would therefore be justified in the public interest, by enabling parents to fulfil their duties and responsibilities. This public interest would outweigh the private interest of young people to have their confidentiality respected¹³³. Silber J, while accepting the relevance of the “family factor considerations” advanced by counsel for the claimant, rejected the argument that the guidance was in conflict with Gillick. He concluded that the House of Lords had clearly decided that a doctor could lawfully give advice to a competent minor without parental knowledge. Furthermore, the claimant’s argument was contrary to the high duty of confidentiality applicable in the context of medical information, the legal rights of young people, and international principles of human rights which require respect for the autonomy of young people¹³⁴. Competent children are entitled to the same duty of confidentiality as adults and there is a strong public interest in the maintenance of confidences, particularly in the context of young people seeking advice on matters of sexual health.

99. The claimant based part of the challenge on the UK Human Rights Act 1998, arguing that the guidelines constituted an interference with her rights under Article 8 of the European Convention of Human Rights. Silber J stated that the right to parental control derived from Article 8 is a dwindling right which exists for the benefit of the child. Furthermore, any interference with parental rights could be justified under Article 8(2) as necessary to protect the health or rights of others.

100. Silber J emphasised that young people are reluctant to seek medical support unless they are certain that their confidentiality will be respected, referring to the period of time between the decision of the Court of Appeal in Gillick and the final decision in the House of Lords. During this period, the Department of Health advised medical professionals not to prescribe contraceptives to young people under the age of 16 without parental consent. This caused a striking reduction in the number of young women under the age of 16 who sought advice on contraception:

“statistics provide clear and powerful evidence of what happens when young people are not assured of confidentiality when they are considering obtaining advice and treatment on sexual matters. There is additionally cogent evidence that doctors clearly appreciate the importance of confidentiality to young people who are considering seeking guidance on sexual matters.” ¹³⁵

101. Silber J reiterated five requirements, based on the Gillick case, which must be met before advice and treatment in relation to sexual health is provided by a medical professional to a young person under 16 years of age:

     1. That the young person although under 16 years of age understands all aspects of the advice, including all relevant matters such as family and moral matters as well as all possible adverse consequences which might follow from the advice

     2. That the medical professional cannot persuade the young person to inform his or her parents or to allow the medical professional to inform the parents that their child is seeking advice and/or treatment on sexual matters

     3. In the case of contraception or treatment for sexually transmitted diseases, the young person is very likely to begin or continue having sexual intercourse

     4. Unless the young person receives advice and treatment on the relevant sexual matters, his or her physical or mental health or both are likely to suffer

     5. That the best interests of the young person require him or her to receive advice and treatment on sexual matters without parental consent or notification

102. The Axon case has been seen as a clear affirmation of Gillick and an explicit recognition of the decision making rights of young people¹³⁶.

(ii)Scotland

103. In 1987 the Scottish Law Commission published a Report on the Legal Capacity and Responsibility of Minors and Pupils, which was largely implemented by the Age of Legal Capacity (Scotland) Act 1991, discussed in chapter 4¹³⁷. The Scottish Law Commission agreed with concerns expressed by commentators that any change in the law should not restrict young people’s access to contraceptive advice and treatment. The Commission stated that although parental involvement is clearly desirable when such treatment is sought, it is not always possible.¹³⁸

(iii)Australia

104. The High Court of Australia adopted the mature minor rule as set out in the Gillick case in Secretary, Dept of Health and Community Services v JWB and SMB 1992.¹³⁹ The case involved a dispute over the sterilisation of a 14 year old girl with significant intellectual disabilities. Legislation on the capacity of minors to consent to medical treatment has been enacted in New South Wales and South Australia; in other Australian states and territories competency to consent to medical treatment is regulated by common law, as set out by the High Court of Australia.¹⁴⁰

105. The Law Reform Commission of Western Australia, the Queensland Law Reform Commission, and more recently, in 2008, the New South Wales Law Reform Commission have examined the issue of young people’s consent to medical treatment, including access to and the availability of contraception.

106. The Law Reform Commission of Western Australia published a discussion paper in 1988, referring to evidence which indicated that minors have a great need for contraceptive advice and treatment.¹⁴¹ The Commission recommended that the general rules governing a minor’s ability to consent to medical treatment should cover contraceptive advice and treatment, and provisionally recommended a statutory scheme to that effect¹⁴².

107. In 1996, the Queensland Law Reform Commission published a report Consent to Health care of Young People. The report contained a detailed discussion on contraceptive health care and referred to various submissions received by the Commission. Most submissions were related to the question of whether there should be any restrictions on a minor’s ability to obtain contraceptive health care without parental consent or involvement. The Commission acknowledged that condoms are available freely in supermarkets and vending machines, without any restriction or age limit. To impose restrictions or age limits on prescriptive contraceptives would, in practice, only effect females and could deny them access to contraception. Furthermore:

“It is unlikely that a restriction on the current or future availability of contraceptive advice, information and products to young people will alter their perceptions and practices relating to sexual relations.¹⁴³”

108. The Commission stated that there should be no significant legal restrictions on the ability of young people to obtain contraceptive advice and treatment. Rather, a minor should be entitled to consent to contraceptive health care if the requested treatment is in his or her best interests¹⁴⁴.

109. In 2008 the New South Wales Law Reform Commission published a report Young People and Consent to Health Care recommending the introduction of legislation to regulate the decision-making process regarding health care for young people.¹⁴⁵ The New South Wales Commission acknowledged that the rapid nature of change and turbulence associated with adolescence is often marked by conflict between parent and adolescent.

“The overarching principle guiding the Commission is that the law should not impede the young person’s timely access to quality health care.¹⁴⁶”

110. The New South Wales Commission felt that all young people should have access to certain treatments without parental consent, regardless of competency to consent. Such treatment would include contraception, treatment for sexually transmitted diseases and treatment for drug and alcohol and abuse. The treatment must be in the best interests of the young person. A panel of experts could identify the special treatments which would be listed in the legislation.

111. The New South Wales Report referred to various surveys, noting that without access to contraceptive advice and prescription, teenagers are at great risk of unwanted pregnancies, and can contract sexually transmitted diseases.¹⁴⁷ Moreover, the majority of submissions received by the New South Wales Commission argued that the requirement for parental consent deters many young people from seeking treatment¹⁴⁸. The Commission agreed that in cases involving contraceptive advice and prescription, and the treatment of sexually transmitted diseases, it is in the best interests and health of the young person to dispense with the requirement for parental consent¹⁴⁹.

112. As mentioned above, New South Wales and South Australia have enacted legislation to deal with the issue of minor’s consent to medical treatment. These provisions are discussed in more detail in Chapter 4¹⁵⁰. For present purposes, it is sufficient to note that the New South Wales provision is similar to section 23 of the Non-Fatal Offences against the Person Act 1997 and is limited to protecting medical practitioners as opposed to recognising the capacity of minors to consent to medical treatment.

113. The legislative scheme enacted in South Australia, the Consent to Treatment and Palliative Care Act 1995 is much broader and deals with the rights of minor’s and adults to make decisions regarding their medical and palliative care. The Act provides a statutory framework for dealing with the rights of minors to consent to medical treatment. Medical treatment is defined broadly and would cover contraceptive treatment.

(iv)New Zealand

114. Section 36 of the Care of Children Act 2004 states that a consent or refusal to any medical, surgical or dental treatment or procedure, (including blood transfusions) given by a child aged 16 or older has effect as if the child were of full age, where the treatment is carried out for the young person’s benefit.¹⁵¹ The common law position does not appear to have been effected by the 2004 Act therefore it has been argued that children less than 16 years of age can consent to medical treatment if they are a mature minor¹⁵².

115. The 2004 Act does not refer to contraception, but section 38 states that a female of any age can consent to or refuse an abortion, as if she were of full age. In 1990, section 3 of the Contraception, Sterilisation and Abortion Act 1977, regulating the provision of contraceptives to young people below 16 years of age, was repealed. There are no age restrictions on the provision of contraceptives in New Zealand, and the common law mature minor rules are followed regarding the prescription of contraception¹⁵³.

(v)Canada

116. The mature minor rule has been accepted as part of the common law of Canada, discussed in Chapter 4. ¹⁵⁴ In 1975 the issue of the age of consent to medical, surgical and dental treatment was discussed at the Conference of Commissioners on Uniformity of Legislation in Canada. An Act entitled Medical Consent of Minors was adopted, which set the age of consent at 16 years, but also made provision for the consent for a mature minor under the age of 16. Medical treatment was defined as including any procedure undertaken for the purpose of preventing pregnancy.

117. The Alberta Law Reform Institute published a background paper Consent of Minors to Medical Treatment and a report Consent of Minors to Healthcare in 1975, recommending that the general age of consent be fixed at 16 years¹⁵⁵. The Law Reform Institute’s study of the law in relation to the consent of minors was a response to a request from a Family Planning Conference to investigate the legal pressures limiting the prescribing of contraceptives to young people below the age of 18. The Commission advocated a broad definition of medical treatment which would cover contraception. Furthermore, the Commission recommended that, for certain categories of care, including contraceptive care, there should be no minimum age of consent. This was based on an increase in sexual activity among minors and the fact that the withholding of contraceptive advice is not a deterrent to such activity. The Commission ruled out the possibility of a doctor being charged with aiding and abetting a criminal offence in relation to the age of consent under the Criminal Code. The Commission also recommended that a minor who has borne a child should be able to consent to health care for herself and her child. There was no formal implementation of the Commission’s recommendations however the mature minor rule has been developed by the courts, and modified by child welfare legislation.¹⁵⁶

118. In 1978, the Law Reform Commission of Saskatchewan published Tentative Proposals for a Consent of Minors to Health Care Act. The Commission acknowledged that there will be situations where young patients below the age of 16 are unwilling, or perhaps unable to obtain parental consent. Presumably the Commission was referring to sensitive issues of sexual and mental health, where confidentiality is particularly important. In such situations, the health and well-being of the patient is paramount and parental consent can be dispensed with if the patient is sufficiently mature to understand the nature and consequences of the health care in question.¹⁵⁷ In relation to patients under the age of 16 who are not sufficiently mature, parental consent must be sought or a court order can be obtained to dispense with the requirement for parental consent¹⁵⁸. In 1980, the Commission published a second report Proposals for a Consent of Minors to Health Care Act which did not follow its earlier tentative proposals but instead sought to codify and preserve the common law mature minor rule. Although no formal action was taken on the proposals, the mature minor rule continues to apply in Saskatchewan.

119. The Manitoba Law Reform Commission considered the issue of Minor’s Consent to Health Care in 1995, recommending the preservation of the mature minor rule, in its present form. Echoing other law reform bodies, the Law Reform Commission of Manitoba referred to the importance of unimpeded and confidential access to health care in respect to matters where there may be a reluctance to inform parents, such as sexual health issues and treatment for drug and alcohol abuse. The public interest would be best served by increasing access to health care¹⁵⁹.

120. The Civil Code of Quebec¹⁶⁰ creates a distinction between treatment required by the state of health of the minor and treatment that is not required by the state of health of the person, and also distinguishes between minors below and above 14 years of age. A minor who is 14 years or older may consent to care required by his or her state of health. This provision seems to be aimed at facilitating access to mental and sexual health services, such as abortion services, treatment of sexually transmitted diseases, and drug and alcohol abuse. It is likely that contraceptive treatment would be considered as a requirement for the state of the health of a minor, given that a minor can consent to abortion, however this is not explicitly stated in the Code¹⁶¹.

121. For treatment that is not required by the minor’s state of health, minor’s aged 14 years and older may consent themselves unless the treatment in question entails a serious risk to the minor’s health. Therefore, regardless of whether or not contraception is considered to be therapeutic and required by the state of health of the minor, a minor aged 14 years or older can consent to non-surgical forms of contraception¹⁶².

(c)Conclusion

122. The majority of law reform agencies surveyed in this chapter have addressed the issue of consent to medical treatment by persons under 18 guided by the principle that minors should not be denied access to necessary health care. They have acknowledged the fact that adolescence is a time of rapid development encompassing physical and biological changes. Decisions made during this time can have serious, long lasting effects. Contraception and sexual health in particular, is a matter of concern for public health and the future well-being of young people. To this end, a common thread evident among the research carried out by other law reform bodies is the importance of unimpeded access to contraceptive treatment and advice.

123. Furthermore, it is often for the common good of the community that an adolescent receive treatment for particular conditions, such as a sexually transmitted infection, an addiction or a mental health problem¹⁶³. Generally speaking, all of the law reform agencies that have examined the issue of children and medical treatment have agreed on the importance of access to certain types of care such as contraception, treatment for addictive behaviour, depression, infections and diseases.

124. A Report by the UN Special Rapporteur published in 2009 acknowledged that social preconceptions among adults can present barriers to children’s rights to sexual and reproductive health services and information.¹⁶⁴ States however, must ensure that adolescents have access to appropriate health information and services, regardless of parental consent, particularly in relation to sexual and reproductive health. Furthermore, if adolescents are sufficiently mature, they may request confidential services and information.

125. Looking at the situation in an Irish context, one must acknowledge that serious decisions regarding alcohol consumption, drug use, sexual initiation and contraception are made by a number of Irish children and young people. The law must acknowledge these decisions and related issues, otherwise significant anomalies are created - such as the teenage mother who can consent to or refuse medical treatment for her child yet cannot make such decisions in relation to her own health care.

126. Under section 23 of the Non-Fatal Offences Against the Person Act 1997, young people aged 16 years and over can consent to medical treatment. There may be situations where a person below the 16 year old threshold has the capacity to consent to certain types of medical treatment. Furthermore, as mentioned above, certain treatments are often in the interests of public health. These treatments include contraception, treatment for addictions, counselling, and treatment for sexually transmitted diseases and infections. For example, the majority of referrals to Child and Adolescent Mental Health Services are from GPs. This highlights the importance of ensuring that children and young people have access to GPs and are not deterred by issues of consent and confidentiality.

127. The Committee on the Rights of the Child has welcomed the introduction in some countries of a fixed age at which the right to consent transfers to the child and has encouraged State parties to give consideration to the introduction of such legislation. The Committee also recommends that where a younger child can demonstrate capacity to express an informed view on his or her treatment, this view should be given due weight.¹⁶⁵

128. In line with the General Comments of the Committee on the Rights of the Child, and law reform agencies in other countries, a scheme could be implemented to ensure that children and young people can gain access to necessary advice and treatment, whilst retaining the standard threshold of 16 as the age of consent to medical treatment.

129. Such an approach would respect the evolving capacity of the child, in line with international and national standards. In its Report on Vulnerable Adults and the Law, the Commission stated:

“At the most fundamental level, the Commission does not favour the status approach to capacity because, rather than being capacity and autonomy-building in nature, this approach to capacity is unnecessarily disabling in its effect. Operating at a macro level, the status approach does not take a micro view of the capacity to make decisions in a particular decision-making sphere.”¹⁶⁶

1. Young people under the age of 18 make significant decisions on a daily basis in relation to a range of issues encompassing education, employment, the environment, relationships, sexuality, contraception, drugs, alcohol and health care. This is a natural part of growing up, of assuming responsibility and developing necessary life skills. The evolving capacity of an individual must be respected, particularly in the context of health care¹⁶⁷. To this end, the Commission provisionally recommends that, in the context of health care provision, the law should respect the evolving capacity of individuals under the age of 17, with the aim of promoting access to necessary medical treatment. The details of this scheme are outlined and discussed in Chapter 4.¹⁶⁸

2. The Commission provisionally recommends that, in the context of health care provision, the law should respect the evolving capacity of individuals under the age of 17, with the aim of promoting access to necessary medical treatment.

CHAPTER 4Capacity to consent to medical treatment in ireland

AIntroduction

1. This chapter outlines the current legal situation in relation to children and consent to medical treatment. Part B examines the relevant issues under Irish law, while Part C looks at the position in other jurisdictions. Part D contains a discussion of the main points raised and Part E concludes with the Commission’s provisional recommendations.

BAge of Consent to Medical Treatment in Ireland

2. In respect of the age of consent to medical treatment in Irish law, there is no equivalent of the mature minor rule or case law along the lines of the English or Canadian jurisprudence discussed in Chapter 3.¹ In context of criminal law, however, section 23(1) of the Non-Fatal Offences Against the Person Act 1997 provides:

“The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his or her person, shall be as effective as it would be if he or she were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his or her parent or guardian”

3. The 1997 Act is clearly a criminal statute and it is unclear whether section 23 is applicable outside the context of a defence to, for example, a charge of assault under the 1997 Act. Most commentators treat section 23 of the 1997 Act as one of general application, as the wording of the section is based on virtually identical wording found in section 8 of the English Family Law Reform Act 1969.² In the Commission’s view, however, section 23 does not serve as an explicit acknowledgement of the right of a child to participate in decisions regarding his or her medical treatment.³

4. Legislatively, it would appear that while children have no automatic right to express their views regarding their medical treatment, those aged 16 have the authority to consent, and possibly to refuse medical treatment.

5. Section 23 of the 1997 Act does not expressly prohibit children less than 16 years of age from consenting to treatment and it is therefore unclear whether the section is facilitative (automatic consent granted to children aged 16, whilst children under 16 are not prevented from giving valid consent) or preventative (preventing all children under 16 from giving valid consent).⁴ McMahon and Binchy⁵ have stated that if section 23(1) was viewed in isolation, the inclusio unius est exclusion alterius rule of construction might indicate that 16 should be the minimum age for lawful consent by a minor.⁶ However section 23(3) states:

“Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.”

6. This suggests that the Oireachtas left open the question of whether a minor under the age of 16 has the capacity to consent to medical treatment. A similar suggestion was discussed and accepted by the House of Lords in the Gillick case, regarding what appears to be the statutory analogue for section 23, section 8 of the Family Law Reform Act 1969, discussed below.⁷ In New Zealand, Section 25 of the Guardianship Act 1968, replaced by Section 36 of the Care of Children Act 2004 contains an identical provision⁸. The Canadian province of British Columbia enacted the Infants Act in 1973, again very similar to section 8 of the Family Law Reform Act 1969, including a saver to accommodate the consent of young people under 16 years of age⁹. These ‘saver’ provisions have been viewed as a safeguard to preserve the existing common law on capacity. The Law Reform Commission, commenting on section 8 of the Family Law Reform Act 1969 in its 1994 Report on Non-Fatal Offences Against the Person, stated that:

“The enactment of such a provision in Irish law would provide for an element of certainty. It would, of necessity, have to accommodate the case of legitimate consents by persons under 16 years of age, or any other specified age, by the inclusion of a saver similar to subs.(3)”¹⁰

7. One can assume therefore, that the Irish courts would recognise section 23(3) as a saver, intended to incorporate and preserve the common law on capacity.

8. Regardless of this assumption, it is evident that clarity is needed. The ambiguous state of the legal capacity of children and young people to consent to medical treatment creates significant problems, as the medical profession is left to operate in something of a legal limbo. Without any clear or explicit explanation of the law, medical and health care professionals have followed a cautious approach and have been advised to obtain the consent of parents or guardians when treating children and young people, if possible. Thus, one commentator has called for the introduction of legislation which would clarify the basis on which doctors may provide treatment to 13, 14 and 15 year olds. The writer argues that GP’s are currently working in a legal vacuum, frequently dealing with under 16s in the absence of parental consent.¹¹

9. The Health Service Executive published guidelines entitled “Staff Guidelines for Obtaining Consent for Non Emergency Treatment/Services from Parents of Children and Young People under 18 Years of Age”.¹² The document contains three guiding principles, namely – the welfare of the child is paramount, working in partnership with parents is beneficial for children, and the views of children must be taken into consideration, in accordance with their age and level of maturity and understanding. Moving on from the guiding principles, there is little or no reference to the right of a child or young person, of any age, to consent to medical treatment. The document seems to be aimed at clarifying the legal situation in relation to consent where there are one or more guardians, as opposed to setting out the rights of a young person to make health care decisions.

10. In 2004 the Medical Council briefly addressed the issue of children and consent, stating that:

“If the doctor feels that a child will understand a proposed medical pro­cedure, information or advice, this should be explained fully to the child. Where the consent of parents or guardians is normally required in respect of a child for whom they are responsible, due regard must be had to the wishes of the child. The doctor must never assume that it is safe to ignore the parental/guardian interest.”¹³

11. The advice reflects the importance of ensuring that all patients are informed, regardless of age, yet there remains an explicit deference to parental consent. Also, the separate issues of information provision and consent to medical treatment are somewhat mixed together. There is no duty placed on doctors and health care professionals to listen to the views of a young patient, regardless of the fact that children are placed in adult wards in hospitals before the age of 16 or 18, adapting to a routine of hospitals, doctors, treatment and medication. As discussed earlier, children may not have the capacity to consent to medical treatment however they have a right to be informed and express their opinions.¹⁴ Section 23 of the Non-Fatal Offences Against the Person Act 1997 does not feature in the guidance issued by the Medical Council.

12. The more recent guidance issued by the Medical Council in 2009 is appreciated as it contains a more detailed reference to children and their capacity to consent to medical treatment. The guidance states that children and young people should be involved as much as possible in discussions about their health care.

“When you are talking to a child or young person, it is important to give them information in an age appropriate manner, listen to their views and treat them with respect”¹⁵

13. Referring to section 23 of the 1997 Act, the guidance states that persons aged 16 years and over are entitled by law to give their own consent to medical, surgical and dental treatment. In relation to persons under the age of 16, the guidance states:

“In exceptional circumstances, a patient under 16 might seek to make a healthcare decision on their own without the knowledge or consent of their parents. In such cases you should encourage the patient to involve their parents in the decision, bearing in mind your paramount responsibility to act in the patient’s best interests.”¹⁶

14. This statement by the Medical Council acknowledges the fact that a number of young people under the age of 16 are actively involved in health care planning and decision making. It is important that the guidance specifically refers to the best interests of the patient, which are separate from the wishes of parents or guardians.

15. Research has shown how experience of illness enables children to develop the understanding and maturity to take responsibility for their health and make health care decisions. On a practical level, studies have shown that increased participation and patient choice can lead to improved treatment outcomes.¹⁷ Children are capable of reaching decisions and articulating their wishes regarding medical care, when given the opportunity.

16. As stated above, the ambiguous state of the legal capacity of children to consent to medical treatment creates a host of problems, as the medical profession is left to operate in a legal limbo, particularly regarding contentious issues such as contraception and drug treatment. The confusing nature of the present legal situation is brought sharply into focus when one considers the anomaly created by the minor who is a parent.¹⁸ The young mother can consent to medical treatment on behalf of her child, yet her legal capacity to make decisions regarding her own medical treatment is not clear. Various commentators have referred to this anomaly, with one giving the example of a 14 year old mother who can consent to a vaccination for her child, yet cannot consent to her own medical treatment.¹⁹

17. The guidelines issued by the Health Service Executive do not shed any light on the matter. The guidelines state that the legal situation of the young mother is unclear because minors are deemed to be legally incompetent to give consent. There is no reference to section 23 of the Non-Fatal Offences Against the Person Act 1997 or the common law. The Commission assumes that the minor referred to in the guidelines is below the age of 16, but this is not clear. The guidelines also state that leeway is given to the unmarried minor mother of a child, because she is the sole legal guardian of the child. There is no explanation of what exactly ‘leeway’ entails in the context of consent to medical treatment. Moreover, it is recommended, as prudent practice, to obtain the consent of an appropriate next of kin. There is no elaboration as to who would be the appropriate next of kin. Perhaps the Health Service Executive presumes the grandparent of the child would be appropriate. The legality of this is questionable however as the relationship between grandparent and grandchild is not constitutionally protected, save where the grandparent is also a guardian of the child²⁰. In cases of doubt or uncertainty, it is recommended that health care providers seek further legal advice. It seems highly unpractical, and burdensome, for health care providers to obtain the consent of a child’s grandparent, and possibly seek legal advice, before they can treat the child in question.

18. In relation to children and young people in Emergency Care, Interim Care, or Voluntary Care, consent for medical treatment must be obtained from their legal guardian. Although the Health Service Executive can consent to medical treatment for children and young people in care under a full care order, best practice is to obtain consent from the legal guardian. Under sections 13(7), 17(4) and 47 of the Child Care Act 1991 the Health Service Executive can apply for direction in relation to medical treatment and obtain a court order to dispense of the requirement for consent if the parent or guardian is absent or will not give consent. This situation leads to practical problems and delay in obtaining consent for necessary medical treatment, particularly in situations where the child or young person in question does not have a good relationship with his or her parents or guardian, or in situations where the parent or guardian is hostile and uncooperative.

CAge of Consent to Medical Treatment in other Jurisdictions

(1)Canada

19. It is important to examine how other countries have addressed the issue of consent to medical treatment by persons under 18, primarily by developing the mature minor rule. The mature minor rule is well established in Canada, and some of the different legal provinces and territories have also passed legislation on the subject.²¹ In 1975 the issue of the age of consent to medical, surgical and dental treatment was discussed at the Conference of Commissioners on Uniformity of Legislation in Canada. An Act entitled Medical Consent of Minors was adopted, which set the age of consent at 16 years, but also made provision for the consent for a mature minor under the age of 16. The Act was adopted in New Brunswick only.

20. Several of the law reform bodies in Canada have examined the issue of minors consent to medical treatment. The age of consent to medical treatment is regulated in different statutory forms by the provinces and territories of Canada, in tandem with the mature minor rule. Health care consent legislation has greatly influenced the application of and adherence to the mature minor rule. The approach taken by the legislature in British Columbia and New Brunswick is focused on the best interests of a mature minor and whether or not the health care decision is in the minor’s best interests, as determined by the courts. In Ontario and Prince Edward Island, however, the statutory focus is solely on the minor’s capacity to make medical decisions and entitles capable minors of any age to make health care decisions.²²

21. The provinces that do not have specific legislation addressing the legal capacity of minors to make health care decisions are reliant on the mature minor rule, supplemented by child welfare legislation. The potential for child welfare legislation to override decisions made by a mature minor has arisen, primarily in the context of refusal of medical treatment.²³ These developments are discussed further in chapter 5.²⁴

22. It is clear that the mature minor rule has been utilised for some time in Canada. In 1910, an Ontario court held that the consent of a 19 year old boy to a surgical procedure was valid, despite the fact that he was below 21 years of age, the age of majority.²⁵ His parents had not been consulted, however the court held that the 19 year old was capable of taking care of himself and his consent was a defence to charges of trespass or assault. This case was largely concerned with the application of the common law “emancipated minor” rule, which grants minors who are independent and emancipated from parental control, legal rights, including the right to consent to medical treatment.

23. In 1971, several years before the Gillick²⁶ case, the High Court of Ontario held that a minor who was capable of understanding the possible consequences of a medical procedure was capable of giving a valid consent to the procedure.²⁷ Addy J stated:

“I can find nothing in any of the old reported cases, except where infants of tender age or young children were involved, where the Courts have found that a person under 21 years of age was legally incapable of consenting to medical treatment”²⁸

1. In 2009, in A.C. v Manitoba (Director of Child and Family Services) ²⁹ the Supreme Court of Canada analysed the existing jurisprudence on the mature minor rule and the legal capacity of competent minors to make health care decisions. The case concerned the refusal of medical treatment by a 14 year old mature minor and is discussed briefly in the following paragraphs, with a more detailed discussion in chapter 5.³⁰

2. Arbella J described the mature minor rule as a recognition by the common law that children are entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence and understanding. The evolutionary and contextual character of maturity makes it difficult to define and evaluate, yet the right of mature adolescents to have their medical decision making ability respected means that an assessment of maturity must be undertaken with respect and rigour. A number of factors were outlined which may assist courts in an evaluation of maturity:

1. What is the nature, purpose and utility of the recommended medical treatment? What are the risks and benefits?

2. Does the adolescent demonstrate the intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences?

3. Is there reason to believe that the adolescent’s views are stable and a true reflection of his or her core values and beliefs?

4. What is the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliations on his or her ability to exercise independent judgement?

5. Are there any existing emotional or psychiatric vulnerabilities?

6. Does the adolescent’s illness or condition have an impact on his or her decision-making ability?

7. Is there any relevant information from adults who know the adolescent, like teachers or doctors?³¹

26. The Commission considers that these factors underline that the assessment of the concept of a mature minor is not limited to the factors set out, for example, by Lord Fraser in the Gillick case, which the Commission discusses below.³² They indicate that the ‘Fraser Guidelines’ are not, and never purported to be, rigid statutory formulae that must be applied across the board in this complex matter.

27. The Commission now turns to examine the operation of the mature minor rule in a number of Canadian states and territories.

(i)New Brunswick

As mentioned above, New Brunswick adopted the act recommended by the Uniform Law Conference in 1975.³³ The Medical Consent of Minors Act 1976grants people aged 16 years and older the right to consent to medical treatment as if they were of full age:

“The law respecting consent to medical treatment of persons who have attained the age of majority applies, in all respects, to minors who have attained the age of sixteen years in the same manner as if they had attained the age of majority.”

28. The consent of a person below 16 years of age may be as effective as if that person had reached the age of majority if, in the opinion of a health care practitioner, the person is capable of understanding the nature and consequences of the treatment, and the treatment is in the best interests of the young person and his or her health and well-being.³⁴

29. In 1994, the New Brunswick Court of Appeal stated, that in Canada, the common law recognises the doctrine of a mature minor, namely, one who is capable of understanding the nature and consequences of the proposed treatment.³⁵ Accordingly, a minor, if mature, has the legal capacity to consent to his or her own medical treatment. Hoyt CJ stated that the 1976 Act had codified the common law, and also held that the courts parens patriae jurisdiction ends when a mature minor is capable of making medical decisions.³⁶ This view was not supported by Ryan and Angers JJ however, who agreed that the court’s parens patriae jurisdiction persists despite the provisions of the Medical Consent of Minors Act and the mature minor rule.

(ii)British Columbia

30. In 1973, legislation was passed which established a framework for minors to consent to medical treatment. Section 8 of the English Family Law Reform Act 1969 is seen as a predecessor to section 16 of the British Columbia Infants Act 1973, and of course section 23 of the Non-Fatal Offences Against the Person Act 1997. In its original form, section 16 of the Infants Act stated that a sixteen year old could consent to surgical, medical, mental or dental treatment, as if he or she were of full age. For the consent to be effective however, reasonable efforts must have been made to gain parental consent, and the treating practitioner must have secured a second opinion that the treatment was in the best interests of the patient. The development of the mature minor rule greatly reduced the applicability and relevance of section 16, as the common law became more liberal than the 1973 legislation.³⁷

31. The Infants Act was amended in 1992, to codify the common law and did not retain the age of 16 as the age of consent to medical treatment.³⁸ Section 17 of the Act states:

“(2) Subject to subsection (3), an infant may consent to health care whether or not the health care would, in the absence of consent, constitute a trespass to the infant’s person, and where an infant provides that consent, the consent is effective and it is not necessary to obtain a consent to the health care from the infant’s parent or guardian.

(3) No request for or consent, agreement or acquiescence to health care by an infant shall constitute consent to the health care for the purposes of subsection (2) unless the health care provider providing the health care

(a) has explained to the infant and has been satisfied that the infant understands the nature and consequences and reasonably foreseeable benefits and risks of the health care and,

(b) has made reasonable efforts to determine and has concluded that the health care is in the infant’s best interests”

32. The provision survived a constitutional challenge in the case of Ney v Canada (Attorney General) 1993.³⁹ The British Columbia Supreme Court held that the section simply codified and affirmed the existing common law. Huddart J summarised the common law position with the statement that:

“In sum, where a child has sufficient intelligence and understanding of the nature of the proposed health care he or she is capable at common law to consent to such treatment. If a child does not meet this test, and as a result is incapable of consenting, the consent of the parents of that child will be required.”⁴⁰

33. Ferguson has suggested that section 17 may be seen as supplanting the common law mature minor rule, as the best interests requirement in section 17 (3)(b) arguably goes further than the common law test of capacity. In Ney, Huddart J briefly referred to the best interests requirement, stating that the provision was designed to reduce the risk of a civil action against the health care practitioner.⁴¹

34. In 1999 the British Columbia Court of Appeal considered the mature minor rule in Van Mol (Guardian ad Litem of) v. Ashmore 1999.⁴² The appellant was a 15 year old girl who claimed that the treating physician was negligent in failing to inform her of the risks involved in a surgical procedure, and in failing to permit her to participate in the treatment decision. The Court held by failing to inform the patient adequately, the physicians had failed to reach the standard of informed consent. The minor in question was entitled to be treated in the same way that any person of full age and capacity should be treated.⁴³

35. Lambert J stated that once the required capacity to consent has been achieved by a young person reaching sufficient maturity, intelligence and capability of understanding, the discussions about the nature of the treatment, its gravity, the risks and the decisions about undergoing the treatment must all take place with and by made by the young person whose bodily integrity is to be invaded and whose life and health will be effected by the outcome.⁴⁴

(iii)Alberta

36. The Alberta Law Reform Institute published a background paper Consent of Minors to Medical Treatment and a report Consent of Minors to Healthcare in 1975.⁴⁵ The Commission alluded to doubts over the equation of the age of majority to the age of consent to medical treatment, and referred to the unrealistic situation of independent teenagers who still need parental consent from their parents in cases of medical treatment.⁴⁶ All of the submissions received by the Commission stated that there are situations where a minor should be able to consent to treatment.⁴⁷ The Commission recommended that the general age of consent be fixed at 16 years, and in relation to certain categories of care, there should be no minimum age of consent⁴⁸. The Commission also recommended that a minor who has borne a child should be able to consent to health care for herself and her child. There was no formal implementation of the Commission’s recommendations however the mature minor rule has been developed by the courts. Recent developments regarding the role of the mature minor rule in the context of refusal of medical treatment are discussed in detail in chapter 5.⁴⁹

37. The mature minor rule was applied by the Alberta Court of Appeal in the case of J.S.C. v Wren 1986.⁵⁰ The Court held that a 16 year old girl, who had sufficient intelligence and understanding of the consequences of her decision, had the capacity to consent to medical treatment.

38. In B.H. v Alberta 2002, Kent J discussed the mature minor principle, stating that mature minors are capable of making all manner of medical decisions.⁵¹ The common law has recognised that there comes a time in the maturation process where teenagers should have more and more say over their bodies.⁵² He also stated that “what mature minor status requires is the intelligence to do the analysis, not that it has been done”.⁵³ One commentator has interpreted this as a suggestion that the Canadian approach favours a different approach to that of the English mature minor rule.⁵⁴ In Canada, it is enough for a minor to be a capable decision maker, regardless of whether or not the minor analysed the decision in a particular way.⁵⁵

(iv)Saskatchewan

39. In 1978, the Law Reform Commission of Saskatchewan published Tentative Proposals for A Consent of Minors to Health Care Act.⁵⁶ The Commission stated that modern teenagers have a very different lifestyle to their counterparts of earlier generations and the concept of parental authority had changed. The Commission recommended that teenagers aged 16 years of age and older should be capable at law of consenting to their own health care. This recommendation was based on the fact that the age of 16 was seen as a legislative foundation for other activities such as driving, receiving social assistance and ending full time education. The Commission also endorsed the mature minor rule and acknowledged that there will be situations where young patients below the age of 16 are unwilling, or perhaps unable to obtain parental consent. In such situations, the health and well-being of the patient is paramount and parental consent can be dispensed with if the patient is sufficiently mature to understand the nature and consequences of the health care in question. In relation to patients under the age of 16 who are not sufficiently mature, parental consent must be sought or a court order can be obtained to dispense with the requirement for parental consent.⁵⁷ In 1980, the Commission published a second report Proposals for a Consent of Minors to Health Care Act which did not follow its earlier tentative proposals but instead sought to codify and preserve the common law mature minor rule. Although no formal action was taken on the proposals, the mature minor rule remains in force in Saskatchewan.⁵⁸

(v)Manitoba

40. A legislative policy has developed in Manitoba, rejecting a fixed rule for medical consent in favour of an individualised assessment of capacity.⁵⁹

41. The Manitoba Law Reform Commission published a report in 1995 with a recommendation that the common law concept of maturity should be maintained to determine whether or not a young person has the power to make health care decisions.⁶⁰ The Commission did not believe that the mature minor rule should be put in legislative form due to a danger of anchoring the law into inflexible legislative language which may be insensitive to a variety of unforeseen and future changes in society and medical practice.

“The different pace of a child’s development, the vast array of medical procedures of varying seriousness and significance and the differences in family relationships and socio-economic circumstances of children all support a process of individualized assessment.”⁶¹

42. A report published by the Manitoba Law Reform Commission in 2004, entitled Substitute Consent to Health Care, briefly addressed the issue, stating that when considering a minor’s maturity, a court will consider the physical, emotional and intellectual maturity of the child, the nature of the parent-child relationship, the lifestyle of the minor and the nature of the medical condition for which the treatment is being sought.⁶²

43. In the 2007 case of Director of Child and Family Services v A.C.2007⁶³ the Manitoba Court of Appeal confirmed that at common law, mature minors, similar to adults, have the capacity to decide their own medical care. The case, referred to above at 1 is discussed further in chapter 5 in relation to refusal of medical treatment.

(vi)Ontario

44. Section 2(2) of the Substitute Decisions Act 1992 establishes a presumption that people aged 16 years and over are capable of giving or refusing consent in respect of their own personal care⁶⁴. The Consent to Treatment Act 1992, replaced by the Health Care Consent Act 1996, was enacted to codify the law relating to consent to medical treatment and established rules and procedures for administering health care to incapable persons. Section 4(1) of the 1996 Act states:

“A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”

45. Thus, a mature minor has a statutory right to consent to treatment, regardless of whether the health care provider considers the treatment to be in his or her best interests. The word “appreciate” in this context means an ability to evaluate the information as well as understanding it.⁶⁵ The evaluation of capacity will be made by the health care practitioner applying prescribed standards and procedures to the patient. There is also a method of review available whereby those deemed incapable can apply to the Consent and Capacity Board for a review of the assessment, with the option of a final appeal to the courts.

(vii)Prince Edward Island

46. The statutory position in Prince Edward Island is similar to that of Ontario, in that the focus of the legislation is on capacity to make a medical decision and there is no age based presumption of capacity.

47. The Consent to Treatment and Health Care Directives Act 1988 states that:

“Every patient who is capable of giving or refusing consent to treatment has the right

(a) to give consent or to refuse consent on any grounds, including moral or religious grounds, even if the refusal will result in death;

(b) to select a particular form of treatment from among those proposed by a health practitioner on any grounds, including moral or religious grounds;

(c) to be assisted by an associate; and

(d) to be involved to the greatest degree practicable in case planning and decision making.”

48. Capacity is assessed by a health care practitioner according to the patient’s ability to understand the information that is relevant to making a decision concerning the treatment, to understand the information that applies to his or her particular situation, to understand his or her right to make a decision; and appreciate the reasonably foreseeable consequences of a decision or lack of decision.⁶⁶

(viii)Quebec

49. It is interesting to compare the regulation of minors consent to medical treatment in Quebec with that of the other Canadian provinces, as there is no civil law equivalent to the mature minor rule.

50. In Quebec the provisions governing the consent of minors are found in articles 14-18 of the Civil Code. A minor aged 14 years of age may consent to care required by his or her state of health. If the treatment requires the minor to be hospitalized for over 12 hours, the person with parental authority or the tutor shall be informed of the hospital stay, without any further information being revealed. It seems that the aim of this provision is to facilitate access to confidential medical care for adolescents in relation to sexual and mental health concerns.

51. Article 17 states that a minor aged 14 years of age may consent alone to care not required by the state of his or her health, with the condition that parental consent is required if the care entails a serious risk for the health of the minor and may cause him or her serious effects.

(2)England

52. As discussed in Chapter 3, the decision of the House of Lords in Gillick v West Norfolk and Wisbech Health Authority 1985⁶⁷ influenced the development of the mature minor rule which is widely accepted in Scotland, Australia, New Zealand, Canada and the United States.

53. Issues in relation to the capacity and maturity of minors in England had been addressed by the courts before the Gillick case. One of the key issues in the case of Hewer v Bryant 1969 was whether or not a 15 year old boy was, by virtue of his age, deemed to be in the custody of his parents.⁶⁸ Lord Denning rejected the notion that an infant is, by law, in the custody of his father until he is 21.⁶⁹

“I decline to accept a view so much out of date. The common law can, and should keep pace with the times. It should declare...... that the legal right of a parent to the custody of a child ends at the eighteenth birthday; and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.”⁷⁰

54. Lord Denning’s judgment was relied on as precedent in Gillick, to illustrate that common law had recognised that a minor can achieve an age of discretion before reaching the age of majority.

55. One of the core issues of the Gillick case concerned section 8(1) of the Family Law Reform Act 1969 which states:

“The consent of a minor who has attained the age of sixteen to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian”

56. Mrs Gillick contended that if section 8 had not been enacted, a minor’s consent to medical treatment would not be effective. This argument was not accepted. The majority of the Law Lords held that the effect of section 8 was to clarify the existing law and remove any doubt in relation to the consent of minors aged 16 years old. It is interesting to note the treatment of section 8 by the House of Lords, particularly the saver in 8(3), which is identical to the saver in section 23(3) of the Non-Fatal Offences Against the Person Act 1997, referred to above.⁷¹ In its 1994 Report on Non-Fatal Offences Against the Person, which the 1997 Act implemented, the Commission recommended the introduction of legislation similar to section 8 of the Family Law Reform Act 1969providing for the consent to medical treatment of persons who have attained the age of 16 and including a ‘saver’ to accommodate legitimate consents by persons under 16 years of age.⁷²

57. Section 8(3) of the English 1969 Act, and section 23(3) of the 1997 Act both state:

“Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.”

58. In the Gillick case, the majority of the House of Lords concluded that the saver in section 8(3) essentially left open the question as to whether the consent of a minor aged below 16 could be an effective consent. Ultimately the House of Lords answered the question in the affirmative. Lord Fraser found:

“no statutory provision which compels me to hold that a girl under the age of 16 lacks the legal capacity to consent to contraceptive advice, examination and treatment provided she has sufficient understanding and intelligence to know what they involve.”

59. Lord Scarman, concurring with Lord Fraser, stated that section 8 clarified the law without conveying any indication as to what the law was before it was enacted. In relation to minors under the age of 16, the law remained the same as it was before the enactment of section 8. In his analysis of the common law, Lord Scarman referred to cases involving the “age of discretion”, showing that a minor can in law achieve an age of discretion before coming of full age.⁷³ A child under the age of 16 does not lack capacity by virtue of age alone, and his or her capacity should not be determined by reference to a judicially fixed age limit. Lord Fraser stated that it would be absurd to suggest that a girl or a boy aged 15 could not effectively consent, for example, to have a medical examination of some trivial injury to his body or even to have a broken arm set. Furthermore:

“It is in my view, contrary to the ordinary experience of mankind...to say that a child or a young person remains in fact under the complete control of his parents until he attains the definite age of majority, now 18 in the United Kingdom, and that on attaining that age he suddenly acquires independence.”⁷⁴

60. Parental rights clearly exist, but the common law has never treated such rights as sovereign or beyond review and control. Lord Scarman stated:

“parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child”⁷⁵

61. In essence, the majority stated that parental rights are limited and recede as the child matures, and a strict age rule fails to take account of the growing maturity of the child.

62. The majority judgements in Gillick stressed that the relevant factor in the assessment of an individual’s autonomy was not the age of the individual but his or her ability to understand fully what was proposed. A child, according to Lord Scarman:

“acquires capacity when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”

63. The minority judgments in the Gillick case focused specifically on contraceptive treatment and the illegality of intercourse with a girl under 16, and passed little comment on the competency of minors to consent to medical treatment in general.⁷⁶ Lord Templeman did however draw a distinction between contraceptive treatment and other forms of treatment, stating that a doctor could, with the consent of an intelligent boy or girl of 15, remove tonsils or an appendix. The effect of the consent depends on the nature of the treatment and the age and understanding of the infant.⁷⁷

64. Although the Gillick case was heralded as a triumph for children’s rights, there are limits to its application. The standard of maturity laid down by the courts is very high, higher than the standard for adults in some respects.⁷⁸ A line of English cases dealing with minor’s refusal of medical treatment have been criticised as inconsistent with the fundamental principle of consent.⁷⁹

65. The case of R (Axon) v Secretary of State for Health, discussed in Chapter 3 is a positive reinforcement of the importance of the rights of children in general and can be seen as an indication of growing respect for the autonomy of adolescents.⁸⁰ Although the case involved the provision of contraceptive advice and treatment, Silber J emphasised the general application of the principles laid down in Gillick.⁸¹

66. In relation to the claim concerning Article 8(1) of the European Convention on Human Rights, Silber J stated that the ECHR shows that the duty of confidence owed by a medical professional to a competent young person is a high one and should not be overridden except for a very powerful reason. Silber J also referred to the case of Yousef v Netherlands 2003⁸² and the statement by the European Court of Human Rights that, in judicial decisions where the rights under Article 8 of parents and of a child are at stake, the child’s rights must be the paramount consideration.⁸³

67. Silber J also referred to the judgement of Thorpe LJ in,⁸⁴ that the right of articulate teenagers to freedom Mabon v Mabon of expression and participation outweighs the paternalistic judgement of welfare.⁸⁵ In Mabon, Thorpe LJ spoke of the keen appreciation of the autonomy of the child that has developed throughout the 21^st century and the child’s consequential right to participate in decision making processes that fundamentally affect him or her. Silber J stressed the importance of the Convention on the Rights of the Child, particularly articles 5, 12, 16 and 18⁸⁶ and the judgement in this regard seems placed within an international movement of heightened respect for children’s rights.

68. Looking at the treatment of section 8 of the Family Law Reform Act 1969 by the House of Lords in Gillick can provide some insights regarding the applicability of section 23 of the 1997 Act in Ireland, outside the criminal sphere. As section 23 of the Non-Fatal Offences Against the Person Act 1997 is modelled on section 8 of the Family Law Reform Act 1969, it would seem reasonable to infer that section 23 would be dealt with in a similar way to section 8 in Gillick, if a comparable case came before the Irish courts. Nonetheless, the Commission has already referred to the unsuitability of a criminal statute to uphold the rights of children in the context of health care and consent to medical treatment. As already noted, commentators have called for legislation to clarify the ambiguity surrounding children and young people’s capacity to consent to medical treatment. In its 1994 Report on Non-Fatal Offences Against the Person, the Commission briefly referred to the Gillick case, with the statement that it may or may not be followed in a civil case here:

    “The Gillick decision might or might not be followed by our Supreme Court in a civil case but in criminal cases, certainty should be imported, where possible and we recommend that legislation be introduced similar to section 8 of the English Family Law Reform Act, 1969.”⁸⁷

69. Some commentators have pointed to Articles 41 and 42 of the Constitution, however, as potential barriers to a Gillick type outcome in Ireland.⁸⁸ Tomkin and Hanafin for example, have likened the Constitution’s view of the child to Kant’s or Locke’s view of the child, as a being who has not yet attained ‘reason’ and therefore is not entitled to complete autonomy until he reaches the age of majority or ‘reason’.⁸⁹ This view does not equate with the various rights and responsibilities that are granted to children and young people before they reach the age of majority, discussed in Chapter 2⁹⁰. Nor does such a view equate with the rights of the child, discussed in Chapter 1.⁹¹

70. Other commentators have also referred to the impact of Articles 41 and 42 of the Constitution in relation to the capacity of a child to consent to medical treatment. Kilkelly, for example, has stated that respect for the medical decision of a mature minor, in relation to contraceptive treatment, could interfere with the duty of parents to provide for the “religious and moral, intellectual, physical and social education of their children”. As against this argument, however Kilkelly, Donnelly and Madden have pointed to the personal rights of children and young people under the Constitution, such as a right to privacy under Article 40.3.1.⁹² Madden has also stated that the area of adolescent autonomy ought to be reconsidered in the light of moves towards greater recognition of children’s rights and rights of self-determination in the medical context generally.⁹³

(3)Scotland

71. Scottish law is based on the mature minor common law position, complemented by legislative measures. In 1987 the Scottish Law Commission published a Report on the Legal Capacity and Responsibility of Minors and Pupils⁹⁴, which was largely implemented by the Age of Legal Capacity (Scotland) Act 1991. The Scottish Law Commission approved the Canadian approach discussed at the Conference of Commissioners on Uniformity of Legislation in Canada in 1975.⁹⁵ The Scottish Commission repeated its earlier recommendation⁹⁶ that 16 should be the normal age at which a person could give an effective consent to medical treatment. This recommendation was supported by a flexible exception, namely that a person below the age of 16 should have capacity to consent to any surgical, medical or dental procedure or treatment if, in the opinion of a qualified medical practitioner attending that person, he is capable of understanding the nature and consequences of the treatment.⁹⁷

72. The Scottish Commission discussed the applicability of a requirement that the procedure and treatment should be in the young person’s best interests, and concluded that the best interests test is too restrictive and unnecessary. If it is accepted that a child may consent if he is of sufficient maturity to understand the treatment proposed then the test of maturity should be the determinative factor, whether the treatment concerned is in his or her best interests or not.⁹⁸

73. Section 2(4) of theAge of Legal Capacity (Scotland) Act 1991 states:

“A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences.”

74. In relation to children who are not sufficiently mature to consent to medical treatment, it is clear that their views must be heard. The Scottish Law Commission’s 1992 Report on Family Law recommended the introduction of a presumption that a child of 12 or more has sufficient maturity to express a reasonable view.⁹⁹ This does not carry any implication that the views of a child under that age are not worthy of discussion. The Commission took into account the fact that such presumptions of maturity are in force in Germany, Sweden, Norway and Finland. The recommendation was implemented by section 6 of The Children (Scotland) Act 1995which states:

“A person shall, in reaching any major decision which involves

(a) his fulfilling a parental responsibility or the responsibility mentioned in section 5(1) of this Act; or

(b) his exercising a parental right or giving consent by virtue of that section,

have regard so far as practicable to the views (if he wishes to express them) of the child concerned, taking account of the child’s age and maturity, and to those of any other person who has parental responsibilities or parental rights in relation to the child (and wishes to express those views); and without prejudice to the generality of this subsection a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view.”

75. The approach taken by the Scottish Law Commission reflects the values enshrined in the Convention of the Rights of the Child and ensures a place for Article 12 of the Convention in domestic law.

(4)Australia

76. The common law in Australia mirrors the Gillick mature minor approach. The High Court of Australia adopted the mature minor rule in Secretary, Dept of Health and Community Services v JWB and SMB 1992.¹⁰⁰ The case involved a dispute over the sterilisation of a 14 year old girl with significant intellectual disabilities. The girl in question did not have the capacity to make such a decision, but the court approved the Gillick case, stating that a minor, if competent, could consent to medical treatment:

“The proposition endorsed by the majority in that case was that parental power to consent to medical treatment on behalf of a child diminishes gradually as the child’s capacities and maturity grow and that the rate of development depends on the individual child.....This approach although lacking the certainty of a fixed age rule, accords with experience and psychology...It should be followed in this country as part of common law.”

77. In general, the capacity of a young person to consent to medical treatment is regulated by common law. In 1980, the Standing Committee of Commonwealth and State Attorneys-General referred an inquiry to the Western Australian Law Reform Commission in respect of the provision of medical treatment to minors with a view to recommending uniform legislation for enactment throughout Australia.¹⁰¹ The reference was withdrawn in 1984 due to insufficient resources. To date, legislation has been enacted in New South Wales and South Australia. The right of a minor to refuse medical treatment is rather unclear, discussed further in Chapter 5.

78. The Law Reform Commission of Western Australia, the Queensland Law Reform Commission, and more recently, in 2008, the New South Wales Law Reform Commission has examined the issue of young people’s consent to medical treatment.

(i)Western Australia

79. In 1988, the Law Reform Commission of Western Australia published a discussion paper on Medical Treatment for Minors. The Commission sought to strike a balance between the rights and responsibilities of parents which are exercised because, and only so long as, their children cannot look after themselves, and on the other hand, the rights and duties of children.¹⁰² The Commission recommended that children aged 16 or older should be able to consent to medical treatment as if they were of full age, and the common law rights of mature children under the age of 16 to consent to medical treatment should be preserved. The Commission provisionally recommended a statutory scheme to that effect.¹⁰³

80. A research paper was published by the Commission of Western Australia in 1992 entitled Informed Consent to Medical Treatment: Processes, Practices and Beliefs.¹⁰⁴ The paper referred to empirical studies which show that minors, particularly those aged 14 or over are capable of being actively involved in treatment decisions.¹⁰⁵ A minor’s ability to make a reasonable decision is dependent on the information available and the way in which that information is communicated to the minor. The research paper carried out a survey of minor patients and their physicians to determine what occurs in clinical situations. The survey found that there was a general presumption that parents would play an active role regarding the medical care provided to their child and there was little expectation on the part of physicians that the minor would participate in the decision making process.¹⁰⁶

(ii)Queensland

81. In 1996 the Queensland Law Reform Commission published a significant body of research on Consent to Health Care of Young People, including a draft bill based on different presumptions of maturity and capacity to consent for different age groups.¹⁰⁷ Under the draft Bill, which has not been enacted to date, the older age group of competent 16-17 year olds can consent to and refuse medical care, whilst the younger group of 12-15 year olds can consent to treatment if the young person in question understands the nature and consequences of the particular health care decision.¹⁰⁸

(iii)New South Wales

82. In New South Wales, the common law test of maturity interacts with Section 49 of the Minors (Property and Contracts) Act 1970 which sets the minimum age of consent at 14 years, by stating that a person who gives medical or dental treatment to a person under the age of 16 is only protected from liability if a parent or guardian has consented. If a practitioner performs medical or dental treatment on a person 14 years or older with the consent of that person, the practitioner is similarly protected from liability. The aim of the provision is to protect medical practitioners, acting with reasonable care and consent, from civil liability. Rather like section 23 of the Non-Fatal Offences Against the Person Act, section 49 does not expressly confer a general capacity on young people to consent or refuse medical treatment.¹⁰⁹ The interaction of section 49 with the common law has created much confusion, as much of the common law on the matter developed after 1970, surpassing the limitations of section 49 and rendering it redundant.

83. In its report, the New South Wales Law Reform Commission recommended that section 49 should be repealed. The report on Young People and Consent to Healthcare was published in 2008, following the publication of an Issues Paper in 2004.¹¹⁰ The Commission set out a number of aims to guide reform of the law in this area, such as: promoting good health care amongst young people by ensuring access to health care, acknowledging the involvement of parents and family members in children’s health care, the responsibility of State and parents to protect young people from harm and ensuring that young people are free to make a choice about what is done to their bodies.

84. The Commission recommended the introduction of legislation to regulate the decision-making process regarding health care for young people. Legislation would state that a young person is competent to refuse or accept health care if, in the opinion of the health care practitioner, the young person understands the information that is relevant to making a decision about the health care, and appreciates the reasonably foreseeable consequences of that decision. A young person aged 16 years and over is presumed to be competent to make such a decision, however this presumption can be rebutted. As discussed in Chapter 3¹¹¹, the New South Wales Law Reform Commission felt there was a compelling argument that in certain situations, young people who are not competent to consent should have access to medical treatment, where the treatment is necessary and promotes their health and well-being.¹¹²

(iv)South Australia

85. In South Australia, the Consent to Medical Treatment and Palliative Care Act 1995 provides a statutory framework to deal with issues of consent to health care by adults and young people. Section 6 of the 1995 Act states that a person aged 16 years and over may make decisions about his or her own medical treatment as validly and effectively as an adult. Section 12 states that for young people under 16, the consent of either a parent or the young person is effective. The young person below the age of 16 must be deemed competent in the eyes of the treating doctor, supported by the written opinion of a second medical practitioner. The treatment must also be in his or her best interests. A parent may be able to seek a court order prohibiting, in the interests of a young person, performance of health care to which the young person has consented. The court would then have to adjudicate the dispute according to the principle that the welfare of the young person is paramount.

(5)New Zealand

86. Aside from the common law, there are several legislative provisions which must be discussed in relation to the age of consent to medical treatment in New Zealand. Section 25 of the Guardianship Act 1968, replaced by Section 36 of the Care of Children Act 2004 was similar to section 8 of the UK Family Law Reform Act 1969, which in turn seems to have inspired section 23 of the Non-Fatal Offences Against the Person Act 1997 in Ireland. Section 25 of the Guardianship Act gave 16 year olds the statutory capacity to consent to medical, surgical or dental procedures, if the procedures were for the benefit of the patient and carried out by a qualified professional.¹¹³ The consent of minors who were married was accorded full legal effect. Section 25, like section 8 of the 1969 UK Act and section 23 of the 1997 Irish Act, was silent on the question of consent to medical treatment by children under 16 years of age.

87. Section 25 of the 1968 Act was enacted, in the same form, in the Care of Children Act 2004. Section 36 states that a consent or refusal to any medical, surgical or dental treatment or procedure, (including blood transfusions) given by a child over the age of 16 has effect as if the child were of full age.¹¹⁴

88. Under section 36(2) young people who are married, in a civil union or living with another person in a de facto partnership can consent to and refuse medical treatment for themselves or for any other person (child) as if they were of full age.¹¹⁵ Like its predecessor, section 36 of the 2004 Act is silent as to the legal capacity of a minor under the age of 16 to consent to medical treatment. It has been argued however, that the common law rights of a mature minor to consent to medical treatment have not been limited by the statutory provisions.¹¹⁶ Skegg states:

“the better view is that minors common law capacity to consent to medical treatment has not been extinguished by the New Zealand legislation, and that the consent of those under the age of 16 will sometimes be effective in law....¹¹⁷”

89. Furthermore, it seems that in practice, there is acceptance of a capacity based approach to consent by the medical profession.¹¹⁸ A guideline document produced by the Ministry of Health states that a practitioner must judge whether a particular child is competent to give informed consent to a particular procedure.¹¹⁹

90. The Code of Health and Disability Services Consumers Rights 1996 enshrines the principle of informed consent and informed choice. 7(1) states that:

“Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent, except where any enactment, or the common law, or any other provision of this Code provides otherwise.”¹²⁰

91. The Code creates a presumption of competence, unless there are reasonable grounds for believing that the consumer is not competent. The provisions of the Code, including the presumption of competence, are applicable to all health consumers.

(6)Conclusion

92. It is notable that Australia, Canada, England, Scotland and New Zealand have all adopted the mature minor rule, with various states and provinces also incorporating the rule in statutory form. Law reform bodies in other countries have recognised the mature minor rule as a method of ensuring that competent children and young people are not denied medical treatment and also assuring health care professionals that they can legally treat competent children and young people. It is interesting to note that a number of the law reform bodies have referred to the significant public policy aspect involved in this area of law, namely that it is in the best interests of society for children and young people to have access to medical treatment and advice.

DDiscussion on Age at Which Children are Competent to Consent to Medical Treatment

(a)Rights of the Child in the Health Care Setting

93. When examining various national and international human rights instruments, the Commission can identify a discernable emphasis on the rights and voice of the child.¹²¹ Children are entitled to more than a minimum level of care and protection provided by their families. They are individual rights holders whose rights are self standing and not a consequence or derivative of the rights of their parents. It is within this atmosphere we must address children’s capabilities and capacity to consent, and their right to consent, or at a minimum participate, in decisions regarding their medical treatment.

94. Irish law, encompassing constitutional, statute and case law, contains few references to children’s rights to health care. There is no statutory provision dedicated to children, guaranteeing access to health care services and detailing their rights in the health care system. Despite the existence of a range of different documents focusing on specific issues such as alcohol use and mental health, there is no single document setting out suitable standards of care for children, guidelines for treating children in hospital, and appropriate levels of participation by children.¹²²

95. Furthermore, there is no requirement to listen to the wishes of the child in the health care setting, or recognition of the right of the child to voice an opinion regarding his or her medical treatment. There are no formal guidelines as to how doctors should weigh up the interests of the child, the wishes of the parents and their own professional opinion.

96. A report published in 2006 by the Office of the Minister for Children examined the extent to which children’s voices are being heard in the health care setting throughout Ireland.¹²³ A total of 52 children were interviewed, varying in age, gender, background and level of contact with the health care system. The interviewees consistently identified the importance of being heard by health care professionals and expressed a desire to be understood and provided with age-appropriate explanations and information. The report articulated a need to raise awareness amongst parents regarding children’s right to be heard, and the need to ensure that health care professionals receive the necessary skills and training on how to communicate with both parents and children in the health care setting.

97. A 2008 literature review of children’s participation and decision-making within the health care setting revealed that children are rarely consulted and seem to play a marginalised role in health care discussions and decisions.¹²⁴ Both health care professionals and parents have a significant influence on whether a child’s efforts to participate are facilitated and supported. There remains much uncertainty and divergence of opinion amongst parents and health care professionals regarding levels of participation by children in medical decision-making. It is not easy for children to participate in a health care system which is traditionally paternalistic. They face obstacles primarily from healthcare professionals, and also parents. As discussed in Chapter 1, evidence suggests that children would like to participate more in decision making and there are many benefits associated with participation.¹²⁵ The Commission’s consultation with children and young people confirmed this view.

98. Additional research has been called for as there is a shortage of information on children’s preferences and the role they would like to play in medical consultation and decision-making.¹²⁶ Studies from the UK indicate that both health care professionals and children would agree with a reduction in the age at which children are competent to consent to medical treatment however this is qualified by the finding that personal experience is more significant than age in relation to capability to deal with medical issues and decision-making.¹²⁷

99. An Irish study differs in some ways in its findings, which points to possible misconceptions and highlights the need for further research to fully ascertain the opinions of children, parents and health care professionals here in Ireland. As part of a research study carried out in 2008, parents, children and staff in a Dublin hospital were asked if they agreed with the current age of 16 years for independent consent to medical treatment. 85% of nurses and 90% of doctors felt the current age is appropriate with few stating that children under 16 should have independent consent to medical treatment. When asked however if children under 16, who were deemed competent should be granted independent consent, numbers increased significantly.¹²⁸

100. Parents did not feel that children under the age of 16 should consent independently to medical treatment and 82% of parents felt that children should be 17 years or older. 58% of children felt that such consent should be delayed until they reached 18 years of age, whilst 30% agreed with the current age of 16 years. It is interesting to note the significant correlation between children with numerous hospital admissions and those who felt that children under 16 years of age should be deemed competent to consent to medical treatment. Experience and involvement in the health care setting is a highly relevant factor in determining a child’s ability to understand health care issues.¹²⁹ A subjective approach in relation to the ability of a child or young person to participate in health care decisions is needed as opposed to a general objective view.

101. An important point to make in this regard is that granting a competent young person the legal ability to consent to medical treatment does not mean that his or her parents are excluded from the decision making process. Ideally speaking, particularly in the case of a child with a serious illness, decisions will be taken collectively, with input from the patient, parents and health care professionals.

(b)International Obligations

102. Looking beyond domestic law, attention must be paid to the significant collection of international instruments promoting children’s rights. In this respect it has been noted that family law in particular is undergoing a process of “internationalisation”.¹³⁰ As discussed in chapter one, there is a substantial body of law which serves to emphasise and promote the rights of children to participate in matters affecting them, including health care and treatment decisions.¹³¹

103. Article 12 of the 1989 UN Convention on the Rights of the Child states that children have a right to express their views on all matters affecting them, which in turn should be taken into account in accordance with the age and maturity of the child in question. A child’s right to be heard and have his views taken into account in accordance with his age and maturity is thus clearly set out in Article 12 of the Convention. Some limited statutory expressions have been given to this duty for example section 25 of the Child Care Act 1991 but the principle is not consistently applied in the Irish health care system.¹³² In the Commission’s view, this can be traced to the absence of a suitable legislative framework and formal guidelines setting out the right of the child to be involved in the health care setting.¹³³

104. The 2004 General Comment on Adolescent Health and Development by the Committee on the Rights of the Child stated that the 1989 UN Convention confers an obligation on State Parties to:

“ensure that adolescents have access to the information that is essential for their health and development and ...have opportunities to participate in decisions affecting their health”¹³⁴

105. In 1998 the UN Committee on the Rights of the Child expressed concern that Ireland’s welfare policies and practices did not adequately reflect the child rights-based approach enshrined in the Convention on the Rights of the Child. The Committee pointed to the lack of adequate and systematic training on the principles and provisions of the CRC for professional groups, including health professionals, working with and for children.¹³⁵

106. As discussed in chapter one, the European Convention on Human Rights has added greatly to the growing body of jurisprudence on the rights of children. The approach of the European Court of Human Rights to the definition of family life offers great opportunity to protect all family members, including children.¹³⁶

107. The Council of Europe 1997 Convention on Human Rights and Biomedicine is an expression of the need to preserve human dignity, rights and freedoms from the misuse of biological and medical advances.¹³⁷ Article 6 provides for a representative to give consent where a minor does not have capacity, and states that the opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.

108. Article 24 of the Charter of Fundamental Rights of the European Union, which forms part of EC law under the Lisbon Treaty also recognises the rights of children to express their views and have their views considered in accordance with their age and maturity. The Charter has the potential to strengthen the high level of protection of the rights of children in EU law, already to be found in for example, the 2002 Brussels II bis Regulation on the recognition of judgments in family proceedings. This provides that a court order will not be recognised in another EU member State unless the voice of the child has been heard.

109. As mentioned above, there is no statutory guidance in Ireland on the treatment of children in hospital. In 1988 the European Association for Children in Hospital adopted a Charter of Rights which sets out a number of principles and a list of rights for all children at different stages of hospital care. The Charter is a non binding instrument, and applies to all children under 18 years of age in line with the rights articulated in the 1989 Convention of the Rights of the Child. Article 4 states that children and parents have the right to be informed in a manner appropriate to age and understanding. The article also highlights a child’s right to confidentiality in certain situations.

“children have the right to express their own views and providing they have sufficient competence to understand the matter, they may veto their parents access to their health information”

110. Article 5 provides recognition of the right of parents and children to informed participation in all decisions involving their health care.

111. In 2008, a research study was carried out to examine if Irish hospitals adhere to the Charter of Rights. A number of shortcomings were identified, including a lack of paediatric training amongst staff and a shortage of facilities for older children such as age appropriate wards.¹³⁸ Regarding information given to children in relation to their condition and treatment, only 50% of nurses and 59% of doctors encouraged children to ask questions. 72% of children stated that they would like to receive as much information as possible, whilst 28% preferred their parents to receive the information, and subsequently discuss it with them. There was a significant correlation between children with numerous hospital admissions and those who wanted to know as much as possible about their treatment. Children who receive information gain a sense of understanding and control which can reduce anxiety.¹³⁹

EConclusions and Provisional Recommendations

112. In the Commission’s view, respect for the autonomy and dignity of the child requires the facilitation, where possible, of the child’s right to make his or her own decisions. Guidelines on treatment of children generally provide that the child’s wishes should be taken into account and given more weight in accordance with the child’s age and increasing maturity. Young children may not have the requisite understanding or experience to make decisions concerning their medical treatment however they may be capable of expressing views on the costs and benefits of a particular course of action.

113. The Government’s 2000 National Children’s Strategy contains several key objectives which should guide future policy on children. One of the key goals set out in the strategy document is that children will have a voice in matters which affect them and their views will be given due weight in accordance with their age and maturity. The strategy outlined the importance of including children in decision making and recognises that children have an active contribution to make in shaping their own lives:

“It is important that giving children a voice is not interpreted as passing responsibility for decisions and their consequences to children. The intention is to ensure that in achieving a decision which is in the best interests of the child, the child should have an active part and know that his or her views are respected.”¹⁴⁰

114. The Law Society of Ireland’s Law Reform Committee has recommended, as a general principle, that doctors be required by law to give children an opportunity to express their views and give them due weight in accordance with their age and maturity.¹⁴¹ The Commission concurs with this approach, which complements the provisional recommendation made in Chapter 3.¹⁴² Accordingly, the Commission provisionally recommends that, when treating children, health care professionals grant children an opportunity to express their views and give their views due weight, in accordance with the child’s age and maturity.

115. The Commission provisionally recommends that, when treating children, health care professionals grant children an opportunity to express their views and give their views due weight, in accordance with the child’s age and maturity.

116. As the Commission has already noted, the existing legislation in Ireland regarding a child’s consent to medical treatment, section 23 of the Non- Fatal Offences Against the Person Act 1997, provides a medical practitioner with a defence to a prosecution for assault. It was clearly not enacted to deal with the wider issue of the self determination of children. In the Commission’s view, there is a fundamental difference between the acknowledgment of child’s right to bodily integrity and autonomy, and the creation of a defence to the criminal offence of assault.

117. The Commission, has, therefore, provisionally concluded that it should be provided in legislation that a person who is 16 years of age is presumed to have capacity to consent to medical treatment. The word presumption in this regard is intended to reflect the presumption in law that a person of 18 years has full capacity.

118. If a 16 year old does not have the requisite capacity to consent to medical treatment, he or she is treated in a similar manner to an adult patient who does not have capacity. In such a case, the medical practitioner must take reasonable steps to find out if any other person has legal capacity to make decisions on behalf of the patient. In relation to persons under 18 years of age, their parents will have the legal capacity to make health care decisions which is in their best interests.¹⁴³

119. The Commission provisionally recommends that it should be provided in legislation that a person who is 16 years of age is presumed to have capacity to consent to health care and medical treatment. The word presumption in this regard is intended to reflect the presumption in law that a person of 18 years has full capacity.

120. Under the 1997 Act, the ability to give consent is based solely on an individual’s age rather than understanding or capacity to consent to medical treatment. The Commission’s 1994 Report on Non-Fatal Offences Against the Person stated that a minor is not incapable of giving an effective consent by reason of their minor status only:

“In all cases it is a question of whether the patient is capable of understanding the essential nature, purpose and likely effects of the treatment in question.”¹⁴⁴

121. Generally speaking, the law on capacity is moving away from the traditional status approach to capacity which involved an “all or nothing” type of assessment. In its 2006 Report on Vulnerable Adults and the Law, the Commission stated:

“At the most fundamental level, the Commission does not favour the status approach to capacity because, rather than being capacity and autonomy-building in nature, this approach to capacity is unnecessarily disabling in its effect. Operating at a macro level, the status approach does not take a micro view of the capacity to make decisions in a particular decision-making sphere.”¹⁴⁵

1. The Commission recommended a functional approach to capacity whereby capacity is assessed in relation to the particular decision to be made, at the time it is to be made. In relation to decisions on health care, the Commission also recommended that capacity should be assessed on the basis of a functional test of capacity. An application of the functional test to an assessment of a child’s capacity may reveal that, although the child in question does not have the capacity to participate in various adult affairs, he or she has the capacity to participate in the management of his or her future medical care.

2. The Ombudsman for Children promotes a rights-based approach to health care for children and rejects the use of chronological age as a determinant of capacity.¹⁴⁶ Children do not go through the same transitions at the same time.¹⁴⁷

3. Much of the literature on the subject suggests that age is no longer an appropriate scale to measure a child’s maturity. Piaget’s research and developmental theory indicate that children go through stages of development, developing the capacity to make an intelligent choice at the age of 11 or 12. At this stage, children have the ability to use deductive and inductive reasoning, apply reason to hypothetical situations, weigh up alternative options, and think about the future.¹⁴⁸ Whilst there are different opinions and theories regarding the cognitive development of children, there is a general consensus regarding the difference between the thought processes of children and adolescents. Children tend to view situations in black and white, focused on the present tense whilst adolescent thinking is multi-dimensional, with an ability to think and plan for the future.¹⁴⁹ It seems that the majority of older adolescents are equipped with the skills for quite sophisticated evaluation and decision-making.¹⁵⁰ However adolescence is a time of rapid change, experimentation and questioning of traditional beliefs. One cannot therefore disregard the experience and maturity of the individual adolescent, in relation to the particular decision at hand. Assumptions and generalisations about what decisions can be made at what age can never be wholly accurate. In general, personal experience and understanding are more relevant and determinative of a particular child’s ability to understand and make informed decisions regarding his or her medical care.

4. Research carried out in England studied a group of children with diabetes.¹⁵¹ The results revealed that children can have a much more sophisticated capacity for taking charge of their own health care decisions than is usually recognised. Children as young as 4 years old understood the general principle of managing glycaemia levels and taking responsibility for decisions which affected their health. Many of the children interviewed performed their own blood tests and injections, including two six year olds. Children learned to plan their carbohydrate intake based on various factors such as glycaemic level, insulin dose, planned activities and so on. The children who displayed the best levels of control over their illness were those who were most informed and trusted with their own health care decisions.

5. It is clear that cases involving particular circumstances and individuals will arise and necessitate a divergence from rigid distinctions based solely on age. The law must allow for specific cases where a child’s personal experience and knowledge vastly outweighs an expected level of maturity based solely on age. The Commission has, therefore, provisionally concluded that a functional capacity test should be used in the context of consent to medical treatment by persons under 16 years of age.

6. The Commission provisionally recommends that a person who is 14 years of age but less than 16 years of age could, subject to certain requirements, be regarded as capable of giving consent to health care and medical treatment, provided he or she has the capacity to understand the nature and consequences of the treatment being provided. Such requirements would include:

• In the opinion of the medical practitioner, the patient understands the nature and consequences of the proposed treatment

• The medical practitioner shall encourage the patient to inform his or her parents or guardians

• The medical practitioner must consider the best interests of the patient.

• The medical practitioner shall have due regard to any public health concerns

1. The Commission provisionally recommends that it shall be lawful for a health care professional to provide health care and medical treatment to a person who is 12 years of age but less than 14 years of age, provided that the health care professional has complied with certain requirements. Such requirements would include:

• It is mandatory for the medical practitioner to notify the parents guardians of the child and take account of their views

• The medical practitioner must take account of the views of the child in question

• The medical practitioner must consider the best interests of the patient.

• The medical practitioner shall have due regard to any public health concerns

These recommendations shall not legalise any health care treatments that are prohibited or shall be prohibited in any other statutory form.

CHAPTER 5refusal of medical treatment

AIntroduction

1. In this chapter, the Commission examines refusal of medical treatment. Part B looks at Irish law on refusal of medical treatment, primarily in the context of refusal by an adult. Part C addresses the issues raised by refusal of medical treatment by a minor, including a comparative analysis from other countries. The issues are discussed in further detail in Part D. In Part E, the Commission discusses options for reform and also addresses the question of advance care directives for persons under 18 years of age.

BIrish Position on Refusal of Medical Treatment

2. There is no Irish case law on the legal status of a minor’s refusal to medical treatment. Much of the debate in relation to refusal of treatment has centred on the decision of the terminally ill adult patient to refuse life sustaining treatment. The courts have yet to address issues of autonomy and bodily integrity in the context of refusal of medical treatment by a minor patient.

3. The cases briefly discussed in the following paragraphs confirm the importance of respect for autonomy, dignity and bodily integrity in the context of refusal of medical treatment. The discussion also explains how the test of capacity employed to assess such a decision is a functional one which is time and issue specific.

(a)Re Ward of Court (No 2) 1996

4. The decision of the Supreme Court in Re a Ward of Court (No2)¹ set out the current Irish law on refusal of medical treatment by an adult. This case involved a 46 year old woman, who had suffered severe brain damage 24 years previously and had since been in a near persistent vegetative state. Her mother applied for directions from the courts as to the proper care and treatment of her daughter. The core issue of the case was whether it was permissible in Irish law to withdraw the medical treatment, in particular the form of artificial nutrition and hydration being given to her.

5. Hamilton CJ stated:

“A competent adult, if terminally ill has the right to forego or discontinue life-saving treatment... and the exercise of that right would be lawful and in pursuance of [the person’s] constitutional rights”²

6. Similarly, O Flaherty J stated:

“consent to medical treatment is required in the case of a competent person... and, as a corollary, there is an absolute right in a competent person to refuse medical treatment even if it leads to death.”³

7. He considered that “it would be correct to describe the right in our law as founded both on the common law as well as the constitutional rights to bodily integrity and privacy.”⁴ Denham J agreed, adding that: “…medical treatment may be refused for other than medical reasons, or reasons most citizens would regard as rational, but the person of full age and capacity may make the decision for their own reasons.”⁵

8. The Supreme Court has clearly recognised the constitutional right of personal autonomy, stating that a competent person of full age and capacity has the right to refuse medical treatment, even though the consequence of refusal may lead to death.

(b)Fitzpatrick v FK 2008

9. In Fitzpatrick v FK,⁶ the High Court ordered that a 23-year old Congolese woman (Ms K) who had refused a blood transfusion should be given the transfusion against her will in order to save her life.

10. The case came before Laffoy J in Fitzpatrick v FK (No 2)⁷ to determine whether the transfusion had been lawfully given. In determining whether a patient is deprived of capacity to make a decision to refuse medical treatment, Laffoy J states that the test is:

“whether the patient’s cognitive ability has been impaired to the extent that he or she does not sufficiently understand the nature, purpose and effect of the proffered treatment and the consequences of accepting or rejecting it in the context of the choices available (including any alternative treatment) at the time the decision is made.”⁸

11. The Commission notes that this decision-specific cognitive test of mental capacity is consistent with the Commission’s recommendation in its 2006 Report on Vulnerable Adults and the Law⁹ and this is also included in the Government’s Scheme of a Mental Capacity Bill 2008.

12. Laffoy J stated that the three-stage approach to the patient’s decision-making process adopted in the English case Re C¹⁰ is a “helpful tool” in applying that testError! Bookmark not defined.¹¹. In applying Re C to the facts of the case Laffoy J held, first, that Ms K did not sufficiently understand and retain the information given to her by the Hospital personnel as to the necessity of a blood transfusion to preserve her life; second, that she did not believe that information and, in particular, that she did not believe that she was likely to die without a blood transfusion being administered; and finally, that in making her decision to refuse a blood transfusion, Ms K had not properly weighed that information in the balance, balancing the risk of death inherent in that decision and its consequences, including its consequences for her new-born baby, against the availability of a blood transfusion that would preserve her life.

13. Laffoy J held that Ms K’s clinicians had given her the information necessary to enable her to make an informed decision as to whether to accept or refuse a blood transfusion. That information was conveyed in terms from which a competent adult whose capacity was not impaired should have understood the gravity of the situation.

14. The assessment of capacity must have regard to “the gravity of the decision, in terms of the consequences which are likely to ensue from the acceptance or rejection of the proffered treatment.” Laffoy J rejected the suggestion of Ms K’s counsel that the patient’s capacity should be measured against the nature of the decision, rather than its consequences, citing the decision of the Supreme Court in Re a Ward of Court (No 2)¹² in support. When refusing a blood transfusion, Ms K had suggested to the Master of the Hospital that Coca-Cola and tomatoes might be an alternative solution to a blood transfusion. Laffoy J held that this suggestion could “only ring alarm bells” as to Ms K’s appreciation of the gravity of the situation when viewed objectively.

15. Laffoy J concluded that Ms K’s capacity was impaired to the extent that she did not have the ability to make a valid refusal to accept a blood transfusion. Therefore, the administration of the transfusion was not an unlawful act, and did not constitute a breach of her rights either under the Constitution or the Convention.

16. It is clear that the case turned on the issue of capacity and whether her capacity was impaired to the extent that she could no longer give an informed consent or refusal. The Supreme Court pointed out in the Ward of Court case that the corollary to the right to consent to treatment is the right to refuse treatment.¹³ Applying this approach to minors, if a minor has the legal and cognitive capacity to consent to treatment, this must also include the capacity to refuse treatment.

CThe Minor Patient and Refusal of Medical Treatment

(1)Ireland

17. As explained in chapter 4, there is much ambiguity surrounding issues of a minor’s legal capacity to consent to medical treatment.¹⁴ Such ambiguity however is even more pronounced in the context of the legal capacity of a minor to refuse medical treatment.

18. The recent guidance of the Medical Council briefly states that a refusal of treatment by a patient between 16 and 18 years, against medical advice and parental wishes, is of uncertain legal validity.¹⁵ There is no distinction made between medical advice and parental wishes, which may be at variance. Nor is there a distinction drawn between essential or life sustaining treatments and other treatments which are not so indispensable. It seems, from the point of view of the medical profession, that a 16 year old may consent to medical treatment however his or her purported refusal of medical treatment evokes a need for legal advice.

19. As the Commission has already noted in Chapter 4,¹⁶ section 23 of the Non-Fatal Offences Against the Person Act 1997 refers only to consent in the context of providing a defence to a prosecution under the 1997 Act:

““The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his or her person, shall be as effective as it would be if he or she were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his or her parent or guardian”

20. The right to refuse treatment is often viewed as the natural corollary of the right to consent and therefore one could argue that, under the 1997 Act, a person who has attained the age of 16 years can consent to and therefore refuse medical treatment. The wording “as effective as it would be if he or she had attained full age” is significant, because the refusal of a person of full age is treated as a corollary of consent; therefore the refusal of a person who has attained 16 years of age could also be viewed as a corollary of consent. Clarity however is called for as such speculation does not provide any concrete answers and merely adds to the body of opinion surrounding the right of a minor to consent to and refuse medical treatment.

21. The Commission has questioned the suitability of a criminal statute to safeguard the rights of children in the context of health care. Section 23 of the 1997 Act is not an adequate foundation to uphold the rights of the child to consent and refuse medical treatment, and the Commission has advocated legislative reform.¹⁷

22. In relation to the development of the common law in this area, outlined in chapter 4¹⁸, it is probable that the mature minor rule would be accepted by the Irish courts. The common law has recognised the capacity of minors to make certain decisions, and the law on capacity is moving away from the traditional status approach employed to determine the legal capacity of particular individuals.¹⁹ The Commission’s 1994 Report on Non-Fatal Offences Against the Person stated that a minor is not incapable of giving an effective consent by reason of his or her minor status only.²⁰

23. Domestic jurisprudence on minors’ refusal of medical treatment is limited, thus it is useful to draw on the experience of other countries where the issue has been addressed by legislation and case law. The Canadian courts in particular have dealt with the intersection of issues of age, autonomy, and self-determination in the context of refusal to medical treatment.

(2)Canada

24. The common law mature minor rule is established in Canada, and some of the different legal territories have also passed legislation on the subject. As mentioned in chapter 4²¹ the relationship between the mature minor rule and child welfare legislation has been debated in the courts, primarily in respect of refusal of essential medical treatment. If a mature minor makes a decision to which child welfare authorities object, the authorities may seek to override the mature minor’s status of legal capacity and have the decision to refuse medical treatment quashed, on the basis that the child is in need of protection.²² The incorporation of the best interests principle in various statutory provisions means that mature minors will only have their decision to refuse medical treatment upheld if the decision is deemed to be in their best interests.

25. Several cases involving the refusal of blood transfusions by Jehovah’s Witnesses have come before the courts, resulting in some interesting judgements on the relationship between the mature minor rule and child welfare legislation. A recent judgment of the Canadian Supreme Court in AC v Manitoba²³ concerning the refusal of a 14 year old girl of the administration of life sustaining blood transfusions provides a valuable analysis of the law concerning medical decision-making by a mature minor.

26. Arbella J, explaining the reasoning of the judgment, outlined the tension caused by respecting the autonomy of a child, whilst also trying to protect the interests and welfare of the child. A solution to this tension must recognise the complexity of the situation²⁴. In the majority of situations concerning the medical treatment of a minor, his or her life will not be gravely endangered by the outcome of a particular decision. That is why the courts have determined that medical practitioners should be free to rely on the instructions of a young person who demonstrates sufficient maturity to make health care decisions. In cases however where medical treatment is needed to protect the life of a young person, the state retains an overreaching power to determine whether allowing the child to exercise his or her autonomy accords with his or her best interests. The case is discussed in detail in paragraph iv below.

27. In the following paragraphs, the Commission examines the operation of the mature minor rule in the context of refusal of medical treatment in a number of Canadian states and territories.

(i)New Brunswick

28. The Medical Consent of Minors Act 1976, adopted from the Uniform Law Conference in 1975, grants people aged 16 years and older the right to consent to medical treatment as if they were of full age:

“The law respecting consent to medical treatment of persons who have attained the age of majority applies, in all respects to minors who have attained the age of sixteen years in the same manner as if they had attained the age of majority.”²⁵

29. This clearly suggests that a 16 year old can consent to and refuse medical treatment as if he or she were of full age. In relation to mature minors under the age of 16, their decision to refuse medical treatment is dependent on the practitioner’s assessment of the best interests of the patient:

“The consent to medical treatment of a minor who has not yet attained the age of sixteen years is as effective as it would be if he had attained the age of majority where, in the opinion of a legally qualified medical practitioner, dentist, nurse practitioner or nurse attending the minor,

1. The minor is capable of understanding the nature and consequences of a medical treatment and,

2. The medical treatment and the procedure to be used is in the best interests of the minor and his continuing health and well-being.”²⁶

1. The first case to raise issues requiring clarification in relation to the Medical Consent of Minors Act 1976 came before the courts in 1994 in Walker, a case concerning the refusal of medical treatment by a 15 year old boy.²⁷ The boy was a Jehovah’s Witness who objected to the administration of blood transfusions as part of recommended treatment for leukaemia. He did however consent to an alternative course of treatment. His treating doctors felt that he was sufficiently mature to understand the consequences of his refusal and were not prepared to administer the blood transfusions against the wishes of the mature minor.

2. In the Court of Queen’s Bench, Turnbull J held that if the minor in question was likely to die without the treatment, the transfusions should be administered to him.²⁸ The New Brunswick Court of Appeal unanimously overturned the decision and declared that the boy was a mature minor under the provisions of the 1976 Act.

3. Hoyt C.J. stated that the trial judge proceeded under two misapprehensions. First, that the common law did not recognise that minors could be sufficiently mature to make decisions about their medical treatment and second, that the right to consent to medical treatment did not include the right to refuse medical treatment. Hoyt C.J. referring to the case of Malette v Schulman 1990²⁹ stated that the right of self-determination which underlies the doctrine of informed consent also encompasses the right to refuse medical treatment.³⁰

4. Although the five judges agreed on the outcome of the case, they disagreed on broader issues in relation to minors’ refusal of medical treatment. Justice Ryan analysed the provisions of the 1976 Act and concluded that the theme of the Act was positive, not negative and does not in any form refer to refusal of medical treatment. The inclusion of the term ‘continuing health and well being’ indicate situations where life is not threatened or at least a situation where there is a positive result from treatment.³¹ It seems that much was placed on the fact that the minor’s prognosis, even with blood transfusions was poor and the treating doctors believed that forced treatment would serve to exacerbate his condition.³²

(ii)British Columbia

34. As mentioned earlier in chapter 4,³³ section 16 of the British Columbia Infants Act 1973³⁴ is comparable to section 25 of the New Zealand Guardianship Act 1968, section 8 of the UK Family Law Reform Act 1969, and section 23 of the Non-Fatal Offences Against the Person Act 1997.

35. The Infants Act 1973 enables a young person of any age to consent to health care, provided the young person understands the nature and consequences of the health care and the care is, in the provider’s opinion, in the best interests of the young person.³⁵ Therefore the consent or refusal of a minor is only sufficient where the health care provider considers the decision to be in the best interests of the minor.³⁶

36. The British Columbia Court of Appeal considered the mature minor rule and the Infants Act 1996³⁷ in the case of Van Mol v Ashmore 1999.³⁸ The case concerned a claim of negligence made against a doctor for failing to explain the risks involved in a surgical procedure to the claimant who was a 15 year old mature minor at the time of the operation. The court held that the doctor had failed to reach the standard of informed consent. Although the case was not directly concerned with a minor’s right to refuse medical treatment, Lambert J emphasised that when the required capacity to consent has been reached, decisions about undergoing treatment rest entirely with the mature minor:

“All rights in relation to giving or withholding consent will then be held entirely by the child.”³⁹

37. Lambert J also approved to the judgment of Hoyt CJ in Walker.⁴⁰ Huddart J, concurring, stated that there is nothing in the Infants Act to permit treatment when a competent minor refuses. Huddart J also referred briefly to the English case of Re R⁴¹, criticising the notion of concurrent rights of consent⁴² proposed by Lord Donaldson, discussed below at i.

(iii)Alberta

38. The mature minor rule has been developed in Alberta, with the limitation that provincial child welfare legislation can displace the common law rule in that child welfare authorities can be granted the authority to consent to medical treatment, regardless of the maturity of the child in question.⁴³ In both cases discussed below, the court held that the mature minor rule can be overridden by child welfare legislation in the best interests of the child.

39. In the case of C.U. (Next Friend of) v. Mc Gonigle 2003⁴⁴ the Alberta Court of Appeal held that the mature minor rule does not apply in the context of child welfare legislation where a child is in need of protection, namely essential medical treatment.⁴⁵The case concerned a 16 year old girl who was a Jehovah’s Witness and refused to consent to the administration of blood transfusions as part of a surgical procedure. The Alberta Provinical Court granted the hospital a Treatment Order to administer the transfusions, which were carried out and the minor recovered fully from her illness. She appealed to the Alberta Court of Queen’s Bench, arguing that she was a mature minor who should have been entitled to refuse medical treatment. Clarke J considered her maturity and held that she was in fact a mature minor, but concluded that maturity was not the key issue. In affirming the order of the Provinical Court, Clarke J held that the Child Welfare Act 2000 was a complete and exclusive code for dealing with the issue, which superseded the common law doctrine.

40. The Court of Appeal, upholding the judgment of Clarke J, held that the mature minor rule does not apply in child welfare proceedings where a child refuses to consent to essential treatment recommended by a physician. While the court must consider the expressed wishes of a mature child, it is not bound to comply with those wishes. Instead, the best interests of the child govern. Russell J explained that in such a case, no one disputes that a mature minor can provide an informed consent to medical treatment, nor that a parent cannot overrule such consent:

“The parental right to determine whether or not a minor child will receive medical treatment terminates when the child achieves a sufficient understanding and intelligence to provide an informed consent.”⁴⁶

41. The appellant contended that the jurisdiction of both the courts and the legislature over minors derives from their parens patriae jurisdiction, which ends when a young person possess the capacity of a mature minor. Russell J, whilst accepting that such limitations may exist on the parens patriae jurisdiction of the court, did not accept such an argument in relation to the legislature’s jurisdiction over children. The power of the legislature to enact provisions with respect to minors forms part of the legislature’s general jurisdiction to enact laws affecting its subjects.

42. Russell J held that the approach of the legislature is consistent with society’s historical interest in preserving the life and well-being of minors. While the court must consider the wishes of a mature child, it is not bound to comply with those wishes. The best interest of the child is the overriding concern and will be the final determinative:

“Further, it is consistent with Canada’s obligations under the UN Convention on the Rights of the Child to make the best interests of the child a primary consideration in decisions affecting children, while allowing a child capable of forming an opinion to express it, and the right for that opinion to be given due weight in accordance with the age and maturity of the child”⁴⁷

43. In 2002, a similar case came before the Court of Queen’s Bench, involving an assessment of the relationship between the mature minor rule and the Child Welfare Act 1984. The case involved a 16 year old girl who was a member of the Jehovah’s Witness faith and refused treatment involving blood transfusions.⁴⁸ One of the issues to be decided by the court was whether or not the patient, B.H. was a mature minor, a question which was answered in the affirmative. Kent J outlined the difficulty in dealing with ethical and moral issues raised by the decision of a mature minor to reject essential treatment.

“As we are all taught in first year law school, hard cases make bad law. In my view, a restrictive test for the mature minor principle is and ought to be the law. To require physicians, lawyers and judges to delve into cultural or religious beliefs to determine if the child is not only capable of making a decision but makes a good decision leads to uncertainty and the potential for unreasonable, ill-founded decisions.”⁴⁹

44. Applying this reasoning, Kent J disagreed with the finding of the trial judge that BH did not have the life or developmental experience to enable her to question her faith and was therefore not a mature minor. Although BH may not have analysed the situation in a way to lead her to the conclusion, held by the majority of society, that blood transfusions are acceptable - this does not mean that she is not a mature minor. What mature minor status requires is the intelligence to do the analysis, not that it has been done.⁵⁰

“to say that no Jehovah’s Witness child who is of sufficient intelligence and ability to understand the nature and consequences of proposed medical treatment can refuse blood because the refusal comes from a religious conviction which we believe is wrong creates a principle which may be used at other times in dangerous circumstances.”⁵¹

45. Turning to the relationship between the mature minor rule and the Child Welfare Act, Kent J examined the provisions of the Act and held that it forms a complete and exclusive code for dealing with refusal of essential treatment. Kent J also considered the judgement in Mc Gonigle⁵² and agreed that the Child Welfare Act 2000 replaces the common law principle of mature minor in so far as it relates to a child in need of protective services in the nature of essential medical treatment. Although the decision of a mature minor is final, in that it cannot be overridden by the child’s parents, the decision is not final in relation to the parens patriae jurisdiction of the court and the provisions of the Child Welfare Act 2000.

46. Thus the law in Alberta holds that where treatment which has been refused is deemed to be essential treatment required for the survival or well-being of the minor, the provisions of the Child Welfare Act apply. The common law principle of mature minor is therefore replaced by the Act in situations where medical treatment is essential and in the best interests of the minor.

47. The reasoning employed by the judgments discussed above has been seen as something of a means to an end, a response to the primary objective of ensuring that young people receive essential treatments and reach the age of majority in good health.⁵³ This is understandable indeed one can argue that a decision to refuse life sustaining treatment is not comparable to a decision to consent to treatment.

48. Mason, whilst accepting the logicality of the argument that there is no difference between capacity to consent and capacity to refuse; draws attention to the fact that while consent entails the acceptance of an experienced medical view, refusal entails the opposite.⁵⁴ In relation to a person under 18 years of age, such a decision is made from a standpoint of relatively limited understanding and experience. Furthermore, a refusal of treatment most likely involves closing down or removing future options, which may be regretted.

49. As noted by Ferguson:

“The emphasis placed on physical well-being is understandable to the extent that it easily fits with the principles embodied within child welfare legislation than a more holistic approach... Consideration of physical health presents the issues to judges in a more manageable way than the potentially huge volume of conflicting views that might surround an investigation into matters such as the importance of religious beliefs to minors, or the enduring effects of emotional trauma.”⁵⁵

(iv)Manitoba

50. As discussed in chapter 4,⁵⁶ the Manitoba Law Reform Commission published a report in 1995 with a recommendation that the common law concept of maturity should be maintained to determine whether or not a young person has the power to make health care decisions.⁵⁷ The Commission did not believe that the mature minor rule should be put in legislative form due to a danger of anchoring the law into inflexible legislative language which may be insensitive to a variety of unforeseen future changes in society and medical practice. A legislative policy has developed in Manitoba, rejecting fixed rules in relation to medical decisions and promoting individualised assessments of capacity.⁵⁸ Binnie J, however, in a dissenting judgment discussed below, was of the opinion that the operation of child welfare legislation in relation to refusal of medical treatment by mature minors seems to be at variance with the approach of the Manitoba Law Reform Commission.

51. The recent case of AC v Manitoba (Director of Child and Family Services) 2009⁵⁹ involved a mature minor who was admitted to hospital at 14 years of age, suffering from internal bleeding. Some months before hospitalisation, she had signed an advance care directive refusing blood products on account of her religious beliefs. Her doctors stated that the bleeding caused an imminent serious risk to her health and perhaps her life. The minor understood the reason why a blood transfusion was recommended and the consequences of refusal. The Director of Child and Family Services apprehended her as a child in need of protection and sought a treatment order under Section 25(8) of the, which provides for the authorisation of treatment in the best interests of the child.⁶⁰ The treatment in question was granted by the Manitoba Court of Appeal. The minor and her parents appealed the order arguing that the legislation was unconstitutional and infringed her following rights under the Canadian Charter of Rights and Freedoms:

“2. Everyone has the following freedoms:

1. Freedom of conscience and religion.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Child and Family Services Act

15. Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

52. The minor’s appeal was grounded on the fact that Section 25(9) of the Child and Family Services Act presumes that the best interests of a child aged 16 or over will be most effectively promoted by allowing the child’s views to be determinative, unless it can be shown that the child does not understand the decision or appreciate its consequences. Where the child is under 16, however, as in the present case, no such presumption exists.⁶¹ It was argued that this legislative scheme was unconstitutional because it unjustifiably infringed the rights of the minor under sections 2(a), 7 and 15 of the Canadian Charter of Rights and Freedoms.

53. The appeal was dismissed by a 6:1 majority. The court held that when a young person’s best interests are interpreted in a way that sufficiently respects his or her capacity for mature, independent judgement in a particular medical-decision making context, the constitutionality of the legislation is preserved. The statutory scheme is constructed in such a way to take an adolescent’s maturity into account and therefore strikes a constitutional balance between what the law has consistently seen as an individual’s fundamental right to autonomous decision making in connection with his or her body, and the law’s equally persistent attempts to protect vulnerable children from harm.

54. Abella J, referring to the best interest standard in section 25(8) as the conceptual cornerstone of the Act,⁶² stated that an interpretation of best interest must take into account the maturity of a particular adolescent in any given medical treatment context:

“It is a sliding scale of scrutiny, with the adolescent’s views becoming increasingly determinative depending on his or her ability to exercise mature, independent judgement. The more serious the nature of the decision, and the more severe its potential impact on the life or health of the child, the greater the degree of scrutiny that will be required.”⁶³

55. Furthermore, such an interpretation of best interests is conceptually consistent with the evolutionary development of the common law mature minor doctrine in both Canadian and international jurisprudence. The courts have, by way of the mature minor doctrine, accepted that an adolescent’s treatment wishes should be granted a degree of deference that is reflective of his or her evolving maturity. Rarely, however, have they viewed this mandate as being inconsistent with their overarching responsibility to protect children from harm.

56. Abella J stressed that cases such as the present one before the court, are rare. In the vast majority of cases concerning the medical treatment of a minor, his or her life will not be gravely endangered by the outcome of any particular treatment decision. Medical practitioners therefore are generally free to rely on the decision and instructions of a mature minor. Where a minor however comes before the courts under section 25, it means that child protection services have concluded that medical treatment is necessary to protect his or her life. In such rare cases, it is the inherent difficulty in assessing a minor’s maturity to make such a vital decision which justifies the state’s intervention, and the court’s scrutiny of whether the decision accords with the best interests of the child. The degree of scrutiny will naturally be most intense in cases where a medical decision is likely to endanger a child’s life.

57. There may be cases however, where the courts are so convinced of a child’s maturity that the principles of welfare and autonomy collapse and the child’s wishes become the controlling factor:

“If, after a careful and sophisticated analysis of the young person’s ability to exercise mature, independent judgement, the court is persuaded that the necessary level of maturity exists, it seems to me necessarily to follow that the adolescent’s views ought to be respected.”⁶⁴

58. Abella J set out a number of guiding factors to be considered in the assessment of a minor’s maturity as set out in Chapter 4 at 1.

59. Mc Lachlin CJ stated that the Child and Family Services Act provides a comprehensive statutory scheme which displaces the existing common law regarding medical decision-making by mature minors. Although the mature minor doctrine remains the applicable law with respect to capable adolescents’ consent to medical treatment, the Manitoba legislature has addressed the specific child welfare concerns that arise where necessary care is refused. The state has an interest in ensuring that children receive necessary medical care.

60. The legislative decision to vest treatment authority regarding minors under 16 in the courts is a legitimate response to heightened concerns about the maturity of younger adolescents. The concern with free and informed decision-making animates the legislative scheme and expresses the State’s interest in ensuring that momentous decisions to refuse medical treatment by persons under 16 are truly free, informed and voluntary.⁶⁵ The legislature’s decision not to accord a presumption of consent to children under 16 reflects the reality that the judgement capabilities of children in relation to momentous personal decisions increases with age.

61. Binnie J, dissenting, stated at the outset that forced medical procedures must be one of the most egregious violations of a person’s physical and psychological integrity. Whilst it is understandable that judges would instinctively give priority to the sanctity of life, the rejection of potentially lifesaving effects of blood transfusions by Jehovah’s Witnesses is fundamental to their religious convictions.⁶⁶

62. Binnie J referred to the Supreme Court case of Starson v Swayze 2003,⁶⁷ where the Court held that a best interest assessment is only appropriate in the absence of an individual’s capacity to decide for him or herself.

63. It may be assumed that children generally lack the requisite degree of capacity and maturity to make potentially life-defining decisions. It is precisely the lack of capacity and maturity, however, which provides the state with a legitimate role in taking the decision-making power away from the young person and vesting it in a judge. The legitimate basis of state intervention in the life of a young person however ceases to exist with a judicial finding of maturity in the case of a particular minor.

64. The purpose of the Child and Family Services Act is to defend the best interests of children who are in need of protection, which in the present context, means children who do not have the capacity to make their own decisions regarding medical treatment. The state’s interest in ensuring judicial control over the medical treatment of minors ceases to exist where a mature minor under 16 demonstrates the lack of need for any such overriding state control.

65. Although a minor is, theoretically, given the opportunity to rebut the presumption under section 25, it seems that in practice, the capacity of a minor is accepted without question yet his or her refusal is overridden, regardless of capacity. Binnie J found section 25 of the Child and Family Services Act to be unconstitutional because it prevents a person under 16 years of age from establishing that he or she understands the consequences of refusing treatment and therefore has the right to refuse treatment; regardless of whether or not a judge considers such refusal to be in the person’s best interests.

66. Referring to the Van Mol⁶⁸ case:

“The young person with capacity is entitled to make the treatment decision, not just to have ‘input’ into a judge’s consideration of what the judge believes to be the young person’s best interests.....The fact that in the end a judge disagrees with the mature minor’s decision is not itself a lawful reason to override it.”⁶⁹

67. As strong as society’s belief is in the sanctity of life, it is equally fundamental that every competent individual is entitled to autonomy to choose to consent or refuse medical treatment, except as that autonomy may be limited within the framework of the Constitution.

68. Binnie J concluded that the Child and Family Services Act had modified the mature minor rule, in that the decisions of mature minors would only be respected where the minor was 16 years of age and over. The question to be answered therefore was whether or not the modified mature minor rule is compliant with the provisions of the Canadian Charter of Rights and Freedoms. Binnie J answered this in the negative.

69. The clear and detailed analysis by the Canadian Supreme Court in this case has greatly added to the body of jurisprudence on the rights and decision-making capacities of mature minors. In sum, the court upheld the constitutionality of section 25(8), stating that it was a proportionate response to the goal of protecting vulnerable young people from harm, while respecting the individuality and autonomy of those who are sufficiently mature to make a particular treatment decision.

(v)Ontario

70. Section 2(2) of the Substitute Decisions Act 1992 established a presumption that people aged 16 years and over are capable of giving or refusing consent in respect of their own personal care.⁷⁰ The Consent to Treatment Act 1992, replaced by the Health Care Consent Act 1996, was enacted to codify the law relating to consent to medical treatment and established rules and procedures for administering health care to incapable persons. Section 4(2) creates a general presumption that a person is capable of making decisions about treatment, admission to a care facility and personal assistance services. The test for capability is set out in section 4(1):

“A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”⁷¹

71. It seems therefore that mature minors have a statutory right to refuse treatment, regardless of whether the courts or the health care provider considers it to be in the minor’s best interests⁷². The evaluation of capability will be made by the health care practitioner and there is also a method of review available whereby those deemed incapable can apply to the Consent and Capacity Board for a review of the assessment. Given the presumption of capacity in section 4(1) it is unclear how child welfare legislation, namely the Child and Family Services Act 1990⁷³, will impact on the legal capacity of a mature minor to refuse medical treatment.

72. Before the enactment of the health care consent legislation, in 1985, the Ontario Provisional Court upheld the decision of a 12 year old mature minor to refuse medical treatment, on religious grounds. ⁷⁴ Justice Main stated that she had been discriminated against on the basis of her religion and her age and the emotional trauma caused by the forced administration of blood transfusions would outweigh the intended benefits of the treatment.

73. At first glance the case seems like something of a departure from the majority of cases involving a mature minor and refusal of medical treatment however the basis of the decision was that the treatment was not in the best interest of the minor. The odds of a favourable outcome after treatment were rather low, at 30 percent, and the side effects were severe.