FAMILY LAW

Family Law



Family Law

Introduction

Society has a need for children to be able to make health care decisions. Homeless children need access to health care. Parents may not be accessible or capable to consent to their child's health care. The relationship with parents may have broken down. Children may not want their parents to know about drug, alcohol, pregnancy or any other health related issues. There is legal and academic support for the right of children to make autonomous decisions with respect to their health care.

Over a decade ago, Gillick v West Norfolk and Wisbech Area Health Authority provided mature minors the right to make decisions independently. The new rule was widely spread and became a part of legislative measures in order to enhance the status of minors' wishes and their recognition as an independent decision maker. However, in medical cases, adolescent autonomy looked a reality at the time of various cases during the period of 1990s and it discovered that complexities and uncertainties inherent in the Gillick principle.

The Gillick principle focuses on the factor that a child or minor till a sufficient age and intelligence can validly consent or deny the consent to his or her medical treatment. However, recent decisions by the Court of Appeal identify that if a child refuses for the medical treatment, then he or she may be found incompetent, and a child patient is found rational when he or she accepts the proposal to treat. Now, practitioners are alarmed to the anomalies that are exhibited by the law on issues of children's consent and refusal to their medical treatment.

Whether a minor has the capacity and is competent to consent, or not, to medical treatment is a question of law. Usually, a minor is capable of giving consent to medical treatment when he or she achieves sufficient understanding and intelligence to understand fully is known as 'Gillick competence', which is a well known principle of law.

Before the emergence of the Gillick principle, there was a little guidance on managing children less than 16 years of age. There is no fixed age at which a child is considered to be an independent decision maker, although over 16 years of age children may be assumed to be competent unless there is evidence to the contrary. The most essential element is that the child should be capable enough to understand the issue and its solution. Therefore, the intelligence is not in the decision but the thorough understanding of the existing problem. Whilst this is much clearer now, there are some anomalies too. The increasing 'rights culture' for children is bringing this issue before the Courts, and the status of children continues to evolve in many countries.

Discussion

Before performing a procedure, a surgeon is required to explain the procedure, benefits and the possibility of any risk associated with the treatment and obtain consent to proceed. Those who have achieved the legal age of majority give consent for their individual treatment. In England and Wales, the legal age of ...