Health care law LLM

Health care law LLM

Introduction

The Court may exercise its inherent jurisdiction (stemming from the doctrine of parens patriae) in order to override the express wishes of children, where it is considered that the child's wishes are not in his/her best interests. Each case is judged on its own facts. There is a presumption in favour of a cause of action which prolongs the child's life, but this is not irrefutable. This is done by way of 'declaration of lawfulness'. Increasingly (until the case of Hannah Jones) there appears to be a trend to override a child's wishes, leading critics to argue that the concept of the Gillick competent child has been eroded. A British common law creation whereby the courts have the right to make unfettered decisions concerning people who are not able to take care of themselves. For example, court can make custody decisions regarding a child or an insane person, even without a statute to allow them to do so, based on their residual, common law-based parens patriae jurisdiction.

It is an inevitable fact of life that as children grow up, especially as they enter their teens, they become more capable of forming their own opinions, expressing these views and evaluating the advantages and disadvantages of certain courses of action for themselves. The law on consent to medical treatment reflects this. However, the law is less clear on the ability of a mature, competent child to refuse medical treatment. Here there is a potential clash between three competing interests: the rights of the child, the parent, and of the state; and the law in Scotland is unclear as to whether the rights of the child prevail in such a conflict. This essay will evaluate the capacity of a “S1 Chidren's act 1989 Competent child to refuse medical treatment and will then examine the extent to which the child's refusal can be overcome by either those with parental responsibility or by the courts. I will then consider, in light of this evaluation, whether any changes in the law could usefully be made.

A child's ability to consent to treatment

In 1985 the infamous case of Victoria Gillick's daughter blew open the hitherto unexplored issue of a minor child's ability to consent to medical treatment. The English decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority2 held that children under 16 could, exceptionally, consent to receiving medical treatment, provided that the child had reached a sufficient understanding and intelligence to understand what was proposed. This decision was one of the most important cases in the area of children's rights and would subsequently become one of the most controversial due to the failure to decisively state the criteria for what would become known as “Gillick competence”. The importance of this case lies in the fact that until it was decided it was generally believed, in both Scotland and England, that the right to consent to medical treatment was a right invested in the parents and ...