A person's right to dignity, choice and bodily integrity means that touching an individual is limited in law and the initial presumption is that this will not occur without consent. Consent also establishes the propriety of the treatment given by nurses and provides a defence to an allegation of unlawful touching both for the tort of trespass to the person and the crime of battery.
The role of consent in health care and its fundamental nature was best summed up by Justice Cardozo in Schloendroff v Society of New York Hospitals (1914) where he held that:
‘Every human being of adult years and sound mind has the right to determine what shall happen to their own body.’
Although the ruling sets out the right of adults to have their autonomy respected, it does suggest that the situation is different for minors.
Grubb et al (2010) argued that minors progress through three consent stages before reaching majority at 18:
- The child of tender years who relies on a person with parental responsibility to give consent to treatment
- The Gillick-competent child who, under the rule in Gillick v West Norfolk and Wisbech AHA [1986], can consent to treatment if they have sufficient intelligence and maturity to give that consent
- 16 and 17 year olds.
Minors who have attained the age of 16
The Courts have recently been asked to consider the requirements for consent in relation to minors who have attained the age of 16. The Courts were particularly asked to consider whether Gillick competence and the Mental Capacity Act 2005 provisions for rebutting the presumption of capacity were essentially the same (Bell & Anor v The Tavistock And Portman NHS Foundation Trust [2020]), and whether the Courts could still override a decision to refuse treatment made by a 16 or 17 year old with capacity (An NHS Trust v X [2021]).
Consent and minors who have attained 16 years of age
Consent to treatment provisions for 16 and 17-year-old minors is set out under the Family Law Reform Act 1969, section 8. This provides that:
‘The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.’
It can be seen that 16 and 17 year olds can give consent to treatment as if they were of full age, as if they were an adult, and the same requirements for a valid consent apply. That is all of the following:
- The consent is given by a 16 or 17 year old with capacity
- The consent is real
- The person makes the decision freely and without coercion.
Capacity when applied to a 16 or 17 year old also has the same meaning as it would for an adult with the provisions of the Mental Capacity Act 2005 extending to those who are 16 and older (other than for the making of a statutory will, lasting power of attorney or advance decision to refuse treatment, which only apply to adults (Department for Constitutional Affairs, 2007)). The test for rebutting the presumption of capacity is therefore the same as for an adult as set out under sections 2 and 3 of the Mental Capacity Act 2005.
Can parents continue to consent?
In Re M (A Child) (Refusal of Medical Treatment) [1999], a case heard before the Mental Capacity Act 2005 was enacted, the Court held that no minor, that is a child under 18 years, is wholly autonomous. Unlike competent adults who are sui juris or free from the power of others, if a child under 18 refuses medical treatment, then others can give consent even if the child has capacity. Lord Donaldson had earlier summed up this position when he held that:
‘I now prefer the analogy of the legal ‘flak jacket’ which protects the doctor from claims by the litigious whether he acquires it from his patient, who may be a minor over the age of 16 or a ‘Gillick competent’ child under that age, or from another person having parental responsibilities which include a right to consent to treatment of the minor.’
‘Anyone who gives him a flak jacket (ie consent) may take it back, but the doctor only needs one and so long as he continues to have one he has the legal right to proceed.’
Re W (A minor) (Medical treatment court's jurisdiction) [1992] (Lord Donaldson MR at 641
It can be seen that Re W [1992] held that although a 16 or 17 year old with capacity can consent to medical treatment, where the same minor refuses to consent then another person with parental responsibility or the court has the right to consent to treatment on their behalf.
Does the Mental Capacity Act 2005 change that approach?
In An NHS Trust v X [2021] a minor who was a Jehovah's witness suffered from sickle cell syndrome, which required repeated blood transfusions that she wished to refuse. She applied to the Court for declarations that she had the mental capacity to exclusively decide her own medical treatment, including refusing consent to blood transfusions, and that on reaching the age of 16 she should be presumed in law to be able to refuse treatment and her autonomy had to be respected.
X argued that the Mental Capacity Act 2005 was now a complete code concerning treatment decisions of capable persons aged 16 and older and had ousted earlier case law that argued that no minor could make wholly autonomous decisions. X suggested that times had changed and views as to the proper balance between paternalism and patient autonomy had altered in favour of minors who had attained the age of 16 years.
The Court held that the decision of a minor 16 years old or more was not determinative in all circumstances; and that there were circumstances in which the decision of such a minor could be overridden by the court.
The Court did accept that the Mental Capacity Act 2005 had altered the Court's approach to consent with 16 and 17 year olds and held that Lord Donaldson's ruling in Re W [1992] would be refined and summarised as:
‘Until the minor reached the age of 16 the relevant inquiry was as to whether the child was Gillick competent; once the minor reached the age of 16: the issue of Gillick competence fell away, and they were assumed to have capacity in accordance with the Family Law Reform Act 1969 s.8, unless shown to lack mental capacity as set out in the Mental Capacity Act 2005.’
The Mental Capacity Act 2005 did not, however, have the effect that a capable minor over 16 had the exclusive right to decide on their own medical treatment.
Gillick competence and minors over 16
In Bell & Anor v The Tavistock And Portman NHS Foundation Trust [2020] the Court approached Gillick competence as equivalent to mental capacity under the 2005 Act. Sir James Munby in An NHS Trust v X [2021] disagreed with this characterisation, rightly arguing that they are both historically and conceptually distinct. The rule in Gillick is based on the minor's development and whether they have the intelligence and maturity to be capable of making the decision, whereas mental capacity is based on the ability to understand, retain, use and weigh information then communicate a final decision (Mental Capacity Act 2005, section 2 and 3).
The Court in An NHS Trust v X [2021] suggests that Gillick competence falls away in favour of the Family Law Reform Act 1969, section 8 and Mental Capacity Act 2005 once the minor becomes 16 and this is generally the case for decisions relating to surgical, medical and dental treatment covered by section 8 of the 1969 Act. For other decisions then the rule in Gillick would apply to the 16 or 17-year-old minor.
The Court have also held that the rule in Gillick can also apply in treatment cases where the 16 or 17 year old refuses to engage with the assessment process under the Mental Capacity Act 2005. In these limited circumstances deciding the minor's competence to make the treatment decision based on their maturity and intelligence can be used as an alternative (Re D (a child) [2019]).
Conclusion
Although the UK Supreme Court has acknowledged in Re D (a child) [2019] that the status of a minor changes at 16, this does not extend to giving those who are 16 or older the same right to wholly autonomous treatment decisions as an adult.
The Court in An NHS Trust v X [2021] has rejected the argument that the extension of the Mental Capacity Act 2005 to include 16 and 17 year olds gave them the same unfettered right to refuse treatment as adults. The Courts continue to retain the authority to override the capable decision of a minor who is 16 or 17 and precedent set in Re W [1992], now refined to include the Mental Capacity Act 2005, still applies.
KEY POINTS
- Consent to treatment provisions for 16 and 17-year-old minors is set out under the Family Law Reform Act 1969, section 8
- Capacity when applied to a 16 or 17 year old has the same meaning as it would for an adult under the provisions of the Mental Capacity Act 2005
- The Mental Capacity Act 2005 does not give a capable minor over 16 the exclusive right to decide on their own medical treatment, the Courts can overrule their refusal of treament
- The rule in Gillick can also apply in treatment cases where the 16 or 17 year old refuses to engage with the assessment process under the Mental Capacity Act 2005