The protection of the rights of all patients and ensuring that autonomy is exercised within each individual’s intellectual ability is one of the most important goals of law and ethics in medical practice.
The present paper joins a vibrant conversation in medical law about the increased focus on the decision-making capacity of children and young persons. It considers the refusal of the law to outrightly deny children the right to make decisions regarding their medical treatment, the extent of their parents’ authority as well as the role of courts, on the basis of the best interests principle. This new lens represents a recognition of the possible variations in cognitive strength of the same age group, and the pragmatic consideration that certain circumstances and specific context in the decision-making process could enhance capacity irrespective of a child’s age. When a child is found to possess the capacity and maturity to understand the various implications of a medical treatment, including the risks and benefits, such a child, just like an adult, can give an effective consent to treatment on his or her own behalf.
It is a settled law that a medical professional must not treat or touch a patient without a valid consent. This requirement of consent operates as a constraint on the power of medical professionals. The law protects this right, given that, the medical professional is in a powerful position vis-à-vis the patient, and their role frequently involves touching and operating on patients. Any competent person may refuse to accept medical attention, however foolish he may be in doing so, even if he dies as a result. To impose treatment, however beneficial, on a competent patient without permission or authorization is both unethical and unlawful. Except where such permission cannot be obtained or is not required.
The ethical principle of self-determination in medical treatment has found expression through the doctrine of consent. This right got a wide popularity as a legal doctrine, through the decided case of Schloendorf v. Society of New York Hospital. Cardozo J, in this case, opined that, ‘every human being of adult years and sound mind has a right to determine what shall be done with his own body. A surgeon who performs an operation without his patient’s consent commits an assault for which he is liable’. This view was later reaffirmed in the Cruzan’s case where the Court held that ‘no right is held more sacred or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of another’.
A medical professional who treats a patient without consent, or exceeds the consent given may be guilty of infringing the patient’s rights to bodily integrity and bodily wellbeing, as Lord Goff pointed out in Airedale NHS v. Bland. Thus, it is now beyond controversy that consent to medical treatment is not only the cornerstone of any physician-patient relationship. It is the singular foundation of the relationship, without which the physician and the patient can only qualify as an aggressor and victim. This is irrespective of the principle of beneficence that underlie a non-consensual treatment, diagnosis or laying of hands. The present paper aimed at examining the scope of children autonomy in medical-decision-making and the extent of parental authority over a child’s medical treatment.
Consent of Children to Medical Treatment
Valid consent is just as important when treating children and young persons as it is with adults. Tension between considerations of welfare and autonomy are most acute in the context of a child’s consent to treatment. While parental authority clearly exists to consent to treatment or refuse treatment on behalf of a younger child, uncertainties arise with the growing independence of a child as he/she becomes his/her own autonomous person. The consent of a child to treatment sometimes is as effective as that of an adult. Any child who passes the capacity test will be capable of giving a valid consent to treatment, and parental right to determine whether such a child will have medical treatment will not be definitive.
The law’s recognition of the ‘mature minor’ started in the pivotal case of Gillick v. West Norfolk and Wisbech AH. In this case, it was held that, in certain circumstances, minors would be judged responsible enough to make authoritative decisions about their own body and health, independent of their parents. This is a clear rejection of the status-based approach where settled age limits determine rights. Both Lord Scarman and Lord Fraser in this case recognised that the parent’s right and duty yields to the child’s right to make decisions when the child achieves sufficient maturity and understanding.
Nigerian Courts have endorsed the Gillick principle of allowing competent children to exercise their autonomy and take responsibility for their own medical decisions. In Okekearo v. Tanko, the court heavily criticised the failure of the defendant to obtain consent from a 14-year-old boy whose finger was to be amputated. The court held that where it is shown that a minor is mature enough to appreciate the consequences of his action, the law treats such persons as mature minors with the right to self-determination as though they are adults. It can be inferred from the court’s decision that a child competent to give evidence in court is also competent to consent to medical treatment, based on the rationality test. The Supreme Court just like the Gillick court recognised the need for proxy decision-making authority to yield to a competent child’s right to consent to his own treatment and exercise his autonomy in an unfettered manner.
It is noteworthy that there is no universal agreement as to the appropriate age for children to be considered competent for medical decision-making. The Code of Medical Ethics in Nigeria as well as the Family Law Reform Act in the United Kingdom create a presumption of capacity in favour of a minor who has attained the age of 16 years, to consent to treatment. However, this presumption can be rebutted by evidence that the child is not, in fact able to understand, retain and weigh information in the balance in order to arrive at a choice.
In as much as competent children should be treated as adults who can give consent for their own medical treatment, it is nevertheless good practice to encourage them to inform their families in decisions about their care. Where such a competent child refuses to involve family members in the decision-making process, the decision should be respected by medical professionals, unless where such non-disclosure would occasion significant harm to the child.
Child’s Refusal of Medical Treatment
The most controversial question as to the presumption of a child’s capacity is whether it also gives such a child the same rights as adults to refuse medical treatment. The UK Children Act provides that a child who is of sufficient understanding to make an informed decision may refuse to give consent. Rule 39 of the Code of Medical Ethics in Nigeria, likewise, grants minors statutory right of their own to consent to procedures, including to refuse it. This takes precedence over parental objections, except during emergency situation where a minor’s objection to treatment may be overridden by parental consent.
Although Lord Scarman’s words in Gillick, that a child has the right to decide what treatment he receives, can be read to mean that they also have the right to refuse treatment, subsequent decisions of courts have shown that in as much as a competent child can consent to treatment, the refusal of treatment by such a child is not determinate, this presupposes strong risk relativity. On many occasions, the courts have overridden the views of teenagers attempting to refuse treatment.
In Re W, a local authority caring for a 16-year-old girl sought court authorisation to override her refusal. Despite considering W to be competent, the authorisation was provided. On appeal, it was held that not only does the court have power to override a child’s refusal to medical treatment, those with parental responsibility also do, where the treatment is necessary to prevent death or serious irreversible harm.
Similarly, in Re M, a 15 and a half-year-old girl was denied the right to refuse a heart transplant operation. Johnson J held that it was in M’s best interests to receive a new heart and authorised her surgeons to perform the procedure.
These decisions reveal that in as much as ethical and professional obligation involves the promotion of children autonomy as far as practicable, there may be need, sometimes, for it to concede to the child’s overall welfare interests. I find it difficult to disagree with the conclusion that a child should not be allowed to bring about his/her own death. It becomes apparent, therefore, that between allowing a child’s personal autonomy to prevail, at the cost of the child’s death, and overriding such autonomy in order to preserve life, the courts tilt towards preserving life.
Parental Authority When a Child Lacks Capacity
In respect of children found to be incompetent, parent’s right to give consent on their behalf is recognised. Only one parent needs to be approached, however, it is deemed good practice to involve everyone close to the child if possible. It is established that decision-making powers must be exercised in the child’s best interests. It follows therefore that court ruling should be sought where there is disagreement over a child’s best interests. Such disagreement could be between the parents and the medical professional treating their child, or between the parents.
It is worthy of note that parental responsibility cannot compel a medical practitioner to uphold parental wishes that are contrary to a child’s best interests. Where there is disagreement about the child’s healthcare, application can be made to court to determine what is in the best interests of the child.
Parents and medical professionals can disagree over a child’s best interests in two situations. The first is where parents wish treatment to be administered against the medical professional’s view of the child’s best interests. The second is where parents refuse to consent to treatment against the medical professional ‘s view. The first situation is exemplified in Ex p. Glass, where the relatives of a severely disabled 12-year-old boy wished him to receive whatever treatment was necessary to prolong his life following a respiratory tract infection. The doctor apparently decided that this was not in his best interests. He administered diamorphine which depresses respiratory function against the child’s mother’s wishes. The court held that the administration of diamorphine against the wishes of the child’s legal proxy had breached the child’s right to respect for his private life and physical integrity.
In the second situation, Re B concerned an infant with a disease that was likely to be fatal if left untreated. The parents refused to give consent as they took the view that it would be kinder to let the child die. The High Court refused to authorise the procedure against parents’ wishes. The Court of Appeal, however, reversed the decision and held that the surgery was in the child’s best interest. Similarly, in Esabunor v. Faweya, a mother refused to consent to blood transfusion on her son found to be suffering from a severe shortage of blood. The court held that although the mother had the right to choose a course for her own life, it does not extend to determining whether her son lives or dies on account of her religious belief. This position was also confirmed in Prince v Massachusetts, where the court held that parents may be free to become martyrs themselves. It does not follow that they are free in identical circumstances to make martyrs of their children. These courts upheld the constitutional entitlement of the state to act in a child’s best interests, even in the face of parental refusal.
Persons with parental responsibility do not always agree on whether a proposed procedure is in the child’s best interests. It is for the court to determine, in such situations what is in the child’s best interests. In Re S, an eight-year-old boy had been brought up according to the tenets of the father’s Jain faith. Upon separation of the parents, the mother applied to have him circumcised and converted to her Muslim faith. This was opposed by the child’s father. The court ruled that it was not in the child’s best interests to be circumcised at the time, as circumcision is permanent and may affect the child if he wishes to practise Jainism in future. The court held that the child should be left to make the decision when he attains puberty. It follows therefore that when the bad faith or imprudence of a parent is proven, the decision-making authority of such a parent is lost. It behoves on the medical professional, where he believes that parental decisions are not in the best interests of a child, therefore, to seek a view from the court, whilst only providing, for the time being, emergency treatment essential to the preservation of life or prevention of serious deterioration.
From the foregoing, it is apparent that the autonomy of children in medical decision-making is an attempt to depart from the traditional age-based yardstick, which adjudges all persons below the age of 18 as lacking capacity. In as much as the role of a parent in a child’s medical care ensures extra protection, the perception that children are incapable of understanding treatment information, forming opinions, or making decisions should be rejected. There is need for children to be included in their care, and treatment information adequately provided to them. Not only should they be informed, information should also be tailored to each individual child’s need and circumstance. This is because competency is a thing that can be developed overtime when information appropriate to a child’s age and level of education is presented to them.
It is important for medical professionals, parents and adults generally to recognise that children have their own valuable characteristics. Minors of the same age may show different levels of maturity and young children, who have demonstrated sufficient competence for decision-making in a certain situation, can lack adequate competence in another. Just because a person is above 16 years of age does not necessarily mean that the person is competent. Therefore, each child’s capacity should be individually assessed, and be decision specific. This should be done bearing in mind that pragmatic considerations in the decision-making process, such as a child’s level of exposure, intellectual gift and family background etc, could enhance capacity irrespective of the child’s age. It is therefore important for the medical professional to treat each decision in its own merits.
Once a child is able to understand, retain, use or weigh information pertinent to healthcare decisions, and communicate their wishes, such a child possesses the capacity to give a valid and effective consent to medical treatment, independent of parental objection. Article 12 of the UN Convention on the Rights of the Child provides that “children shall be provided with opportunity to be heard in any judicial or administrative proceeding affecting the child directly”. Since human rights apply to children and young persons, just as they do to adults, children have the rights to be listened to, and taken seriously. They have the rights to have opinions, and for these opinions to matter. Their opinions should not be dismissed out of hand on the grounds of age. Until children are recognised as reciprocal partners in their own care, there can be no validation of their autonomy and personhood.
Bukola Helen Olusolade
LL.B., BL, LL.M