Sample 2:1 Undergraduate Law Outline

An essay on whether the ability of the courts/parents to override the medical treatment decisions of minors in harmful situations is justified.

Introduction

• Outline essay’s goals: critical discussion of whether the ability of the courts/parents to override the medical treatment decisions of minors in harmful situations is justified.
• Overview of structure:
  • Summary of law
  • Philosophical issues
  • Is the law justified?
• Outline of argument:
  • In cases where children are acting autonomously, the law is not justified.

Overview of the Law in England and Wales

• General rule with adults: patients must consent to treatment; non-consensual treatment without other lawful authority is battery.[1]
  • Exception: if the patient lacks ‘capacity’, outline the definition of capacity given in ss.1-3 of the Mental Capacity Act 2005.
    • A patient lacks capacity if an impairment or disturbance of the mind or brain leaves them unable to make this decision at the time,[2] because they cannot understand, retain or use or weigh the relevant information, or cannot communicate their decision.
    • Doctors must take steps to assist an adult in having capacity,[3] and it is irrelevant whether they approve of a capable adult’s decision.[4]
    • Adults are presumed to have capacity. Where capacity is lacking, treatment must be in their best interests and a valid and applicable advance refusal must be respected.
• General rule with under 16s: can consent if ‘Gillick-competent’ for the treatment in question.[5] Consider:
  1. Sufficient ability to understand the treatment and consequences;
  2. Sufficient maturity to weigh information and make decisions;[6]
  3. Life-experience, where relevant to understanding the consequences of this decision;[7]
  4. Ability to understand any moral or family issues involved.[8]
• General rule with 16- and 17-year-olds: presumed to have capacity to decide. Their consent is as effective as an adult’s,[9] but the High Court’s inherent jurisdiction extends to all under-18s. It can override even a competent refusal if the child’s best interests require it, and can exceptionally prevent treatment to which a minor has consented.[10]
• If a minor lacks competence or capacity for the decision:
  • A parent with parental responsibility may consent to treatment in the child’s best interests within the scope of that responsibility.[11]
  • If a 16- or 17-year-old lacks capacity, doctors may also treat in their best interests under the Mental Capacity Act 2005. In an emergency where consent cannot be obtained in time, doctors may give treatment needed to save life or prevent serious deterioration.
  • Alternatively, the court may make the decision if in the best interests of the child (and can override the parents’ wishes).[12]
• Where the child is competent, parents cannot veto their consent to treatment in their best interests. Re R and Re W recognise that parental consent may still be available after a refusal. Its limits are disputed. Doctors should seek legal advice about going to court rather than rely on parental consent alone (GMC, 0–18 years, para. 31).

Can Overriding Consent be Justified?

• Requiring consent bolsters and supports autonomy, a core principle of medical law.
  • Define autonomy (e.g. quote Oshana’s definition[13]). Note it includes respect for beliefs perceived as irrational by others.
  • Respecting autonomy = necessary to allow people to lead flourishing existences,[14] + acknowledges that people tend to know better what is in their best interests.[15]
  • Autonomy = particularly important in medical context, as freedom to choose when one’s bodily integrity is breached is part of autonomy’s core.[16]
  • Autonomy = treated as a right in Western tradition, e.g. the European Convention on Human Rights protects bodily autonomy under Article 8 and freedom of religion under Article 9.[17]
• Autonomy is usually seen as infringed by paternalism.
  • Define paternalism (see Beauchamp & Childress, p.178 for a good definition).[18]
  • Western tradition typically rejects paternalism – e.g. it is generally battery to treat an adult who has capacity and refuses.
• However, paternalism does not always infringe autonomy.
  • Autonomy requires capacity to understand & process relevant information and an uncoerced environment to ensure the decisions are truly free.[19]
  • If any of these factors are lacking, paternalism can be justified.
  • Paternalism can exist in degrees, e.g. pausing to check that a person understands a risk (‘soft paternalism’) vs completely overriding their informed, voluntary decision for their own good (‘hard paternalism’).[20]
  • Depending on how much the person lacks the capacity for autonomous decision-making, different degrees of paternalism can be justified.[21]
    • E.g., encountering a misinformed person might justify soft paternalism. A comatose person cannot currently decide,[22] but an earlier valid and applicable refusal still binds the doctors.
• This shows that overriding the decisions of children will only be justified if they lack capacity/freedom.

Is the Law Justified in Overriding Children’s Consent?

• Some children obviously lack capacity (e.g. babies and toddlers).
  • Older children may also lack capacity (research shows parts of the brain involved in decision making are not yet developed in many teenagers^[23] and that adolescents showed less mature judgment on average, with considerable individual differences[24]).
    • It is therefore important to ascertain that a child is sufficiently developed.
    • Factors 1-2 above are a test of sufficient development.
      • Demonstrate this with an overview of the facts + outcome of Re JM.^[25]
• Children are more likely to be insufficiently free/uncoerced.
  • Children may be involuntarily cut off from other perspectives, including on questions of religion.[26]
    • This can impact health decisions, e.g. Jehovah’s Witnesses/blood transfusions (consider the evidence of pressure in individual cases[27], see e.g. Re T which involved a coerced adult[28]).
    • It is therefore important to ascertain that a child is sufficiently free. A parent who shares or opposes the child’s beliefs may be poorly placed to judge this. An independent court can hear the child directly.
    • Distinguish a lack of understanding from undue pressure. Sharing a parent’s faith does not itself show either.
      • Demonstrate this with an overview of the facts + outcome of Re L.[29]
• Paternalism is therefore justified in cases where the child is not Gillick-competent, as they cannot make the particular decision autonomously.
  • Children are less likely to have capacity, so assessing competence individually in under-16s is justified.
• However, in theory there will be children who are developed enough and free, and so able to autonomously refuse treatment. In these cases, paternalism = unjustified.
  • This makes it problematic that, in some refusal cases, the courts have set a high threshold for competence.[30]
    • Demonstrate with the facts + outcome of Re E[31] (involved a very mature child).
      • Note that he again refused blood transfusions after turning 18 (showing his decision was persistent and considered).[32]
      • Note also that the court relied on the fact that he was insufficiently informed as to the horrific nature of his potential death to argue that he lacked capacity, although the doctors had not explained it to him. Consider whether an age-appropriate explanation might have enabled him to decide.
    • Consider the difference between consenting and refusing in Re R and Re W.[33]
    • Compare Re E and F, where the court authorised emergency transfusions despite two competent refusals, with Re J and Re JPMB, where it respected refusals by a 17-year-old and a 16-year-old. Weigh the risk of death against the young person’s wishes, beliefs and the effect of forced treatment on their life.
  • Some argue this is justified: refusing all treatment can require a wider understanding of the alternatives than consenting to one treatment.^[34] However autonomy surely requires both: one cannot meaningfully choose to accept treatment without understanding the implications of rejecting it.^[35]
• As such, while in theory the requirements of Gillick-competence are justified, in practice the threshold can be applied in an unjustified manner.

Conclusion

• The law is justified in overriding the choices of children in cases where they are incapable of making autonomous decisions.
• However, the current law permits a court to override a refusal even where the child is acting autonomously. On this view, overriding an autonomous refusal is unjustified.

Bibliography

Table of Cases

An NHS Trust v Mr & Mrs A [2014] EWHC 1135 (Fam)

Camden LBC v R (A Minor) (Blood Transfusion) [1993] 2 F.L.R. 757

Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402

R (A Minor) (Wardship: Consent to Treatment), Re [1992] Fam. 11

Re A (Children) (Conjoined Twins: Medical Treatment) (No.1) [2001] Fam. 147

Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 F.L.R. 386

Re JM (a child) [2015] EWHC 2832 (Fam)

Re L (Medical Treatment: Gillick Competency) [1998] 2 FLR 810

Re T (adult: refusal of medical treatment) [1992] 4 All ER 649, [1992] 3 WLR 782

Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1992] 3 W.L.R. 758

Re E and F (Minors: Blood Transfusion) [2021] EWCA Civ 1888

Re J (Blood Transfusion: Older Child: Jehovah’s Witness) [2024] EWHC 1034 (Fam)

Re JPMB [2026] EWHC 1361 (Fam)

Table of Legislation

Family Law Reform Act 1969

Mental Capacity Act 2005

Books

Beauchamp T, Childress J, Principles of Biomedical Ethics (4^th edn, Oxford University Press 1994)

Coons C, Weber M, Paternalism: Theory and Practice (Cambridge University Press 2013)

Eckstein S, Manual for Research Ethics Committees (Cambridge University Press 2003)

Fortin J, Children's Rights and the Developing Law (Cambridge University Press 2009)

Lerner RM, Overton WF, The Handbook of Life-Span Development, Cognition, Biology, and Methods (John Wiley & Sons 2010)

Oshana M, Personal Autonomy in Society (Ashgate Publishing 2006)

Pozgar GD, Santucci N, Legal Aspects of Health Care Administration (12^th edn, Jones & Bartlett Publishers 2015)

Sandberg R, Law and Religion (Cambridge University Press 2011)

Nys T, Denier Y, Vandevelde T, Autonomy & Paternalism: Reflections on the Theory and Practice of Health Care (Peeters Publishers 2007)

Periodicals

Cauffman E, Steinberg L, ‘(Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults’ [2000] Behav. Sci. Law 741

Cave E, Wallbank J, ‘Minors’ capacity to refuse treatment: A reply to Gilmore and Herring’ [2012] Med. L. Rev. 423

Clarke S, ‘Informed Consent in Medicine in Comparison with Consent in Other Areas of Human Activity’ [2001] Southern Journal of Philosophy 169

DeWolf Bosek MS, Savage TA, The Ethical Component of Nursing Education: Integrating Ethics Into Clinical Experience (Lippincott Williams & Wilkins 2007)

Douglas G, ‘The Retreat from Gillick’ [1992] MLR 569

Gilmore S, Herring J, ‘”No” is the hardest word: consent and children’s autonomy’ [2011] CFLQ 1

Guichon J, Mitchell I, ‘Medical emergencies in children of orthodox Jehovah’s Witness families’ [2006] Paediatr. Child Health 655

LaFollette H, ‘Freedom of Religion and Children’ [1989] Pub. Aff. Q. 75

Pullman D, ‘The ethics of autonomy and dignity in long term care’ [1999] Canadian Journal on Aging 26

Footnotes

[1] Sue Eckstein, Manual for Research Ethics Committees (Cambridge University Press 2003), 89

[2] Mental Capacity Act 2005, ss.1-3

[3] Ibid., s.1(3)

[4] Ibid., s.1(4)

[5] Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402

[6] An NHS Trust v Mr & Mrs A [2014] EWHC 1135 (Fam), [68]

[7] Re L (Medical Treatment: Gillick Competency) [1998] 2 FLR 810

[8] Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402, 424

[9] Family Law Reform Act 1969, s.8(1); Mental Capacity Act 2005, ss.1-2

[10] Camden LBC v R (A Minor) (Blood Transfusion) [1993] 2 F.L.R. 757; Re W (A Minor) (Medical Treatment: Court's Jurisdiction) [1992] 3 W.L.R. 758

[11] Camden LBC v R (A Minor) (Blood Transfusion) [1993] 2 F.L.R. 757, [25]

[12] Re A (Children) (Conjoined Twins: Medical Treatment) (No.1) [2001] Fam. 147

[13] Marina Oshana, Personal Autonomy in Society (Ashgate Publishing 2006), 5

[14] Thomas Nys, Yvonne Denier, Toon Vandevelde, Autonomy & Paternalism: Reflections on the Theory and Practice of Health Care (Peeters Publishers 2007), 2

[15] Marcia Sue DeWolf Bosek, Teresa A. Savage, The Ethical Component of Nursing Education: Integrating Ethics Into Clinical Experience (Lippincott Williams & Wilkins 2007), 320

[16] Steve Clarke, ‘Informed Consent in Medicine in Comparison with Consent in Other Areas of Human Activity’ [2001] Southern Journal of Philosophy 169, 172

[17] Russell Sandberg, Law and Religion (Cambridge University Press 2011), 81

[18] Tom Beauchamp, James Childress, Principles of Biomedical Ethics (4^th edn, Oxford University Press 1994), 178

[19] Ibid., 59

[20] Christian Coons, Michael Weber, Paternalism: Theory and Practice (Cambridge University Press 2013), 74

[21] Daryl Pullman, ‘The ethics of autonomy and dignity in long term care’ [1999] Canadian Journal on Aging 26

[22] George D Pozgar, Nina Santucci, Legal Aspects of Health Care Administration (12^th edn, Jones & Bartlett Publishers 2015), 327

[23] Richard M. Lerner, Willis F. Overton, The Handbook of Life-Span Development, Cognition, Biology, and Methods (John Wiley & Sons 2010), Ch. 13

[24] Elizabeth Cauffman, Laurence Steinberg, ‘(Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults’ [2000] Behav. Sci. Law 741, 742

[25] Re JM (a child) [2015] EWHC 2832 (Fam)

[26] Hugh LaFollette, ‘Freedom of Religion and Children’ [1989] Pub. Aff. Q. 75

[27] Juliet Guichon, Ian Mitchell, ‘Medical emergencies in children of orthodox Jehovah’s Witness families’ [2006] Paediatr. Child Health 655

[28] Re T (adult: refusal of medical treatment) [1992] 4 All ER 649, [1992] 3 WLR 782

[29] Re L (Medical Treatment: Gillick Competency) [1998] 2 FLR 810

[30] Gillian Douglas, ‘The Retreat from Gillick’ [1992] MLR 569

[31] Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 F.L.R. 386

[32] Jane Fortin, Children's Rights and the Developing Law (Cambridge University Press 2009), 154

[33] R (A Minor) (Wardship: Consent to Treatment), Re [1992] Fam. 11

[34] Stephen Gilmore, Jonathan Herring, ‘”No” is the hardest word: consent and children’s autonomy’ [2011] CFLQ 1

[35] Emma Cave, Julie Wallbank, ‘Minors’ capacity to refuse treatment: A reply to Gilmore and Herring’ [2012] Med. L. Rev. 423