Minors' Capacity to Refuse Treatment: A Reply to Gilmore and Herring

Cave, Emma; Wallbank, Julie

Abstract

Re R and Re W allow a parent to consent to treatment a competent minor refuses, but the cases have not been tested post-Human Rights Act 1998. Gilmore and Herring offer a means by which they might be distinguished or sidelined. They interpret Gillick to say that in order to consent a minor need only have a full understanding of the particular treatment. They argue that the minors in Re R and Re W were refusing all treatment which requires a separate assessment of capacity—an assessment which was not made. We fear that this distinction would not be workable in clinical practice and argue that their interpretation of Gillick is flawed. From a clinician's point of view, competence cannot always be judged in relation to a specific treatment, but instead must relate to the decision. We show that a decision can incorporate more than one treatment, and more than one decision might be made about one treatment. A minor's understanding of a specific treatment is not always sufficient to demonstrate competence to make a decision. The result is that whilst there might be situations when a parent and a minor both have the power to consent to a particular treatment, they will not share concurrent powers in relation to the same decision. Consequently, a challenge to Re R and Re W, if forthcoming, would need to take a different form. We emphasise the necessity to minimise the dichotomy between legal consent and how consent works in medical practice.

Citation

Cave, E., & Wallbank, J. (2012). Minors' Capacity to Refuse Treatment: A Reply to Gilmore and Herring. Medical Law Review, 20(3), 423-449. https://doi.org/10.1093/medlaw/fws003

• Journal Article Type: Article
• Publication Date: Jun 1, 2012
• Deposit Date: Jul 18, 2013
• Publicly Available Date: Mar 3, 2014
• Journal: Medical Law Review
• Print ISSN: 0967-0742
• Electronic ISSN: 1464-3790
• Publisher: Oxford University Press
• Peer Reviewed: Peer Reviewed
• Volume: 20
• Issue: 3
• Pages: 423-449
• DOI: https://doi.org/10.1093/medlaw/fws003
• Keywords: Consent, Minor, Gillick.
• Public URL: https://durham-repository.worktribe.com/output/1480489