1. Consent & Children/Adolescents
Stephen McGuinness
Associate Solicitor
02 December 2015

2. What will I cover? What is a child?
Consent to and Refusal to treatment by 16 and 17 year olds
The Mature Minor and Competing Rights
Parental Consent when treating minors
Minor’s consent to psychiatric treatment
Reform

3. Scenario
Dr Hyde’s first patient on a Monday morning is Britney, who is 16 years of age and usually attends with her Mother. On this particular day she attends with Brett, who introduces himself as her Father. Dr Hyde is aware from Britney’s chart that she suffers from ADHD. Brett says he wants Dr Hyde to prescribe Stimulants for Britney as his own GP has told him that this will increase Britney’s concentration and reduce her fatigue. He also wants her referred to a psychiatrist for a further assessment. Dr Hyde notes from the chart that Britney’s Mum has specifically stated she does not want Britney taking stimulants. Britney tells Dr Hyde she is trying to improve her school grades and she wants to be prescribed the stimulants. However, she does not want to be referred for a further psychiatric assessment.
How does Dr Hyde proceed?

4. 1989 UN Convention on the Human Rights of a Child Irish Constitution
What is a child?
1989 UN Convention on the Human Rights of a Child
Irish Constitution
Age of Majority Act 1985

5. Section 23 Non-fatal Offences Against the Person Act 1997:
Legislation
Section 23 Non-fatal Offences Against the Person Act 1997:
“The consent of a minor who has obtained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent would constitute a trespass to his/her person, shall be as effective as it would be if he/she 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 consent for it from his/her parent or guardian”
Anyone over the age of 16 can consent to medical treatment
To treat in absence of consent except in a medical emergency is unlawful

6. Refusal of Treatment by a 16 or 17 year old
Can a 16 or 17 year old refuse medical treatment?
Position for adults?
“consent to medical treatment is required in the case of the competent person….and as a corollary there is an absolute right in a competent person to refuse medical treatment even if it leads to death” O’Flaherty J Re Ward of Court (No. 2) (1996) 2 IR 79

7. Refusal of Treatment by a 16 or 17 year old
One would think a 16 or 17 year old could refuse medical treatment, but this is not necessarily the position:
- Legislation is silent on the point
Re (a minor) (Wardship:Consent to Treatment) (1991) 4 All E.R. 177
- Lord Donaldson MR distinguished between giving and failing or refusing to give consent
What to do in a clinical Setting:
In a clinical setting, when dealing with a 16 or 17 year old who is refusing medical treatment refusal should be respected
However, if life threatening efforts should be made to discuss with all parties. An application to the Courts may be necessary

8. ‘Mature Minor’ – Under 16
Gillick v Western Norfolk and Wisbech Area Health Authority and another (1985) 3 AER 402
Has been viewed as persuasive guidance for healthcare professionals in Ireland – But not followed yet in Ireland
‘Gillick Competent Child’: -
Whether the patient has sufficient maturity to understand the information relevant to making the specific decision and to appreciate its potential consequences 
Whether the patient's views are stable and reflect his or her values and beliefs  
The nature, purpose and utility of the treatment  
The risks and benefits involved in the treatment

9. Competing Rights Parental/Family Rights v The Child’s Rights
Under Article ‘the State recognises the family as the most important social group of society, as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law' North Western health Board v HW & CW (2001) 3 IR 622
“If the State was entitled to intervene in every case where professional opinion differed from that of parents, or where the State considered parents to be wrong in a decision, we would be rapidly stepping towards the “Brave New World” in which the State always knows best. In my view that situation would be totally at variance with both the spirit and the word of the Constitution” McCracken J.

10. Competing Rights The Child’s rights – G v An Bord Uchtala (1980) IR 32
“The Child’s Natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience… The child’s natural right to life and all that flows from the right are independent of any right of the parent as such”

11. ‘Mature Minor’ - The Constitution
Article 42A of Constitution
1. The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights
2. 1. In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such an extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of parents, but always with due regard for the natural and imprescriptible rights of the child
2.2 Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.

12. ‘Mature Minor’ – Sliding Scale
Approach evident in the Irish Court decisions is that of the sliding scale approach.
Hewer v Byrant (1969) 3 All ER 578
Lord Denning MR summarised the sliding scale by stating that the authority of parents in respect of their children “starts with a right of control and ends with little more than advice”
Irish Case Law
McK v Information Commissioner (2006) 1 IR 260

13. Mature Minor - a clinical setting
The HSE National Consent Policy
It is only in exceptional circumstances that, having regard to the need to take account of an objective assessment of both the rights and the best interests of the person under 16, health and social intervention would be provided without consent from parents or guardians
The minor has sufficient maturity to understand the information relevant to making the decision and to appreciate its consequences
The minors views are stable and a true reflection of his/her values and beliefs
The nature, purpose and usefulness of the treatment or social care intervention
The risks and benefit of the treatment
Any other specific welfare, protection or public health considerations

14. Parental Consent when treating minors
Legal Guardianship refers to the right of a parent to be involved in all major decisions affecting the welfare and upbringing of a child including decisions relating to education, health, religious, moral and monetary concerns
When married: Both parents guardians
Jointly adopted: Both parents guardians
Following separation or divorce: Both remain guardians – Depending on any Court Order.
When not married: Child’s mother only guardian

15. Is consent from both parents required?
No clean answer
However, in S23 of the 1997 Act ‘parent or guardian’ is written in the singular
If the decision will have profound and irreversible consequences for the child, both parents/guardians should be consulted.
If agreement not possible then the service should generally not be provided to the child unless it is deemed necessary to safeguard the child’s best interests
If parents disagree on how to proceed they should be advised they have responsibility to discuss the matter and come to an agreement

16. Parents Refuse to Consent to Recommended Treatment
Try to encourage
Consider application to court
The child’s best interests are paramount
Again the Courts have to balance competing rights
Prince v Massachusetts 321 US 158 (1944)
“Parents may be free to become martyrs themselves. But it does not follow that they are free in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves”

17. Parents Refuse to Consent to Recommended Treatment
North Western Health Board v HW & CW (2001) 3 IR 622
Intervention allowed:
“where there is an immediate and fundamental threat to the capacity of the child to continue to function as a human person, physically, morally or socially, deriving from an exceptional dereliction of duty on the part of the parents”

18. Consent to Psychiatric Treatment
S23 ‘surgical, medical or dental treatment’ – does treatment encompass psychiatric treatment? On would assume yes
However, clash with definition of child in Mental Health Act 2001 – as a result practitioners cannot rely on consent from 16 or 17 year old for psychiatric treatment
Reform needed

19. Reform?
Law Reform Report ‘Children and the Law: Medical Treatment’ (LRC )
Legislation should be enacted dealing with consent and refusal to medical treatment
The primary consideration should always be the best interests of the child assessed objectively by reference to the rights of the child
16 and 17 year olds have a presumption to consent to and refuse medical treatment
In the context of refusal of life sustaining treatment an application may be made to the High Court
Only in exceptional circumstances should treatment be provided to those under 16 without the knowledge of the parents or guardians
Mental Health Act 2001 should be amended to provide that a 16 or 17 year old is presumed to have capacity to consent to or refuse psychiatric treatment

20. Thank You