Providing treatment to children and young people is not usually problematic but occasionally issues do arise. Here we look at some of the key legal and ethical issues relating to the provision of treatment for this group of patients.
Specific ethical issues with young people
Providing treatment to children and young people is not usually problematic.
Health is vital to their wellbeing and consent to treatment from competent young people or from those with parental responsibility renders treatment lawful. There are occasions, however, where competent children or young people seem to be making decisions that might damage their wellbeing.
Rarely, parents make decisions that do not seem to be in the best interests of their children. This can give rise to acute dilemmas for medical professionals.
There is a great deal of practical difference, in terms of the kinds of problems the law has to resolve, between the position of a newborn baby and that of a 17-year old approaching majority.Andrew Bainham, Children: The Modern Law
The growth of autonomy
Physically, emotionally and mentally, children grow at different rates. Where children lack the ability to make informed decisions on their own behalf decisions have to be made for them. As children grow towards adulthood, these welfare-based decisions gradually give way to a respect for their decision-making competence.
Although all adults are presumed to be competent to make decisions on their own behalf, practically speaking this assumption is reversed for children. The ethical challenge is being able to identify when a concern for children’s welfare needs to start giving way to a respect for their choices.
Consent for under 18s
A young person of any age can give valid consent to treatment or examination provided he or she is considered competent to make the decision. At the age of 16 there is a presumption that the patient is competent to give valid consent. Where the child or young person lacks capacity, a person – or a local authority – with parental responsibility can give consent on the patient’s behalf. As discussed below, a decision by a child or young person to refuse treatment can in some circumstances be overridden.
Parental responsibility is a legal concept relating to the authority to make decisions on behalf of children. Not all biological parents have parental responsibility. In relation to children born after 1 December 2003, both of a child’s biological parents have parental responsibility if they are registered on a child’s birth certificate.
In relation to children born before this date, both of a child’s parents only acquire parental responsibility if they were married at the time of the child’s conception. If the parents were not married, only the mother automatically has parental responsibility, but the father may acquire it by order or agreement.
If there's an emergency
In an emergency, if the child cannot give consent and nobody with parental responsibility is available, legal and ethical treatment that is necessary to preserve the life, health or wellbeing of the child can be given. An emergency can probably best be described as a situation where the requirement to provide treatment is so pressing that there is not time to seek alternative sources of consent.
What the law says
"Emergency, parental neglect, abandonment of the child, or inability to find the parent are examples of exceptional situations justifying the doctor proceeding to treat the child without parental knowledge and consent."
Lord Scarman. Gillick v West Norfolk and Wisbech Area Health Authority ( 3 All ER 402).
Can a competent child refuse treatment?
Although capacity to consent and to refuse treatment would appear two sides of the same coin, the courts have ruled that a refusal of treatment by a competent person under the age of 18 is not necessarily binding. In some circumstances, particularly if the young person’s life is at stake, doctors may still be able to provide treatment that is in his or her best interests but legal advice should be sought.
Where a competent young person refuses treatment, the harm caused by overriding his or her choice and possibly using restraint will need to be balanced against the harm caused by failing to treat.
What’s the moral problem
A young person’s refusal of life-sustaining treatment
A refusal by competent children or young people of treatment necessary to sustain life throws into relief the tension that can arise between the moral obligation to respect their developing autonomy and the obligation to intervene to promote their welfare. Where autonomy is thought to be developing, intervening to protect life can also protect an individual’s ability to exercise more fully-fledged autonomy in the future. That the courts have shown themselves willing to overturn a competent young person’s refusal of life-sustaining treatment makes it clear that when the outcome may be serious, decisions based on objective assessments of welfare will ordinarily take priority over a respect for autonomy.
If the medical team disagree with the parents
In the overwhelming majority of cases, parents and those with parental responsibility have the child’s interests at heart and are best placed to make decisions for them. Occasionally, the health team may have concerns that a particular decision might not be in a child’s interests.
Parental decision-making rights are linked to the duty to promote the child’s wellbeing and can be set to one side where the welfare of the child is at risk. Where such a disagreement arises, further discussion should take place and a second opinion offered, but it may be necessary to seek legal advice. In the interim, only emergency treatment that is essential to preserve life or prevent serious deterioration should be provided.