Consent Is No Minor Issue

Author:Mr Tom Hayes
Profession:Matheson Ormsby Prentice

Rebecca Ryan looks at new Law Reform Commission recommendations on healthcare treatment for minors.

The treatment of minors and the lack of legal clarity surrounding some issues of consent may result in a healthcare professional facing serious ethical and legal predicaments. The recently published Law Reform Commission Report on "Children and the Law: Medical Treatment" has recommended a number of legislative reforms which, if implemented, will provide clarity to patients, parents, guardians and healthcare professionals when treating minors.

Law Reform Commission Recommendations

The Commission has recommended that those under 16 should not be presumed competent to consent to, or refuse, medical treatment; but that, in exceptional circumstances they may be able to give their consent or refusal, based on an assessment of their maturity and a presumption that their parents or guardians will usually be involved in the decision-making process.

The assessment of whether a person under 16 is sufficiently mature to consent to or refuse medical treatment would have to take account of the following factors: (a) whether he/she has sufficient maturity to understand the information relevant to making the specific decision and to appreciate its potential consequences; (b) whether his/her views are stable and reflect his/her values and beliefs; (c) the nature, purpose and utility of the treatment; (d) the risks and benefits involved in the treatment; and (e) any other specific welfare, protection or public health considerations.

When treating a patient under the age of 16, a healthcare professional should encourage the patient to inform his/her parents or guardians, consider the patient's best interests and have due regard to public health concerns.

The Commission has also recommended that 16 and 17 year olds should be presumed to have full capacity to consent to and refuse health care and medical treatment including advice, contraception, surgery and mental health services. They should also be subject to a functional test, which is "a case by case test of capacity based on whether the person understands the nature and effect of the specific decision being made". In the context of a refusal of life sustaining treatment by a person aged 16 or 17, the Commission has recommended that an Application may be made to the High Court to determine the validity of the refusal.

Finally, the Commission recommends that the Mental Health Act 2001 (the "2001 Act") should...

To continue reading