Competence and Authority: Adolescent Treatment Refusals for Physical and Mental Health Conditions

(2013) 8(2) Contemporary Social Science, 92-103

Posted: 8 Oct 2014

Abstract

This paper explores the relationship between competence and authority in relation to medical treatment refusals. Comparing provisions directed at adults and young people, she explores the options before the court if a test case (called for by the British Medical Association and the Department of Health) is brought before the court to determine the extent of the minor’s autonomy rights to be involved in or make medical treatment decisions at common law. At present, the common law rights of competent adults and minors stand in stark contrast. Adults can refuse life saving treatment against the advice of doctors, but minors (even if they pass the legal test for competence) cannot do so if a parent or the court provides the necessary consent in the child’s "best interests". Since the matter was last tested in court, children’s rights -- including their autonomy rights -- have evolved. In light of this, if a minor can demonstrate his autonomy in relation to the decision should he, like a competent adult, be given the legal authority to decide? Cave asserts that academic arguments against the different levels of competence required to consent to and refuse medical treatment should be distinguished from arguments about the respective authority a decision to consent and refuse may carry. A close examination of the law relating to adults reveals that their decisional authority is context-specific. There are circumstances where adults too are powerless to refuse medical treatment, regardless of their competence. Statutes enacted post-Human Rights Act 1998 which apply to competent minors take a similar approach. Deference to children’s autonomy rights does not necessarily require that their competent decisions are respected. In particular the paper considers Mental Health legislation, examining its aims and how they relate to the restrictions on competent adults and minors and the extent to which these provide examples which might be followed when the common law on adolescent treatment refusals is tested in court.

Keywords: Competence, children, minors, consent, medical, treatment

Suggested Citation

Cave, Emma, Competence and Authority: Adolescent Treatment Refusals for Physical and Mental Health Conditions. (2013) 8(2) Contemporary Social Science, 92-103. Available at SSRN: https://ssrn.com/abstract=2503352

Emma Cave (Contact Author)

Durham University ( email )

Durham Law School
Palatine Centre
Durham, England DH1 3LE
United Kingdom

HOME PAGE: http://https://www.dur.ac.uk/law/staff/?id=11717

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