The Law Reform Commission’s Consultation Paper on Children and the Law: Medical Treatment will be launched by Mr Barry Andrews, TD, Minister for Children and Youth Affairs, at the Commission’s offices at 6.30 pm this evening.
The Consultation Paper forms part of the Commission’s Third Programme of Law Reform 2008-2014. In the Consultation Paper, the Commission makes over 20 provisional recommendations for reform, which are aimed at (a) ensuring that mature teenagers have their views fully taken into account when they seek medical treatment and (b) providing clarity to health care professionals and families.
The Commission’s engagement with young people
In preparing any Consultation Paper or Report, the Law Reform Commission always tries to engage directly with those who may be affected by any proposed reforms. For this project, the Commission was able to use the invaluable assistance of the Office of the Ombudsman for Children to arrange a Consultation Day with 15 to 18 year olds on 26th August 20O9. During this Consultation Day, the Commission heard loudly and clearly the perspective and voices of young people. These views, which are summarised in the Consultation Paper, indicate that issues such as openness, the need for clear information on medical treatment (including that relevant to sexual relationships), and to take account of the actual maturity of an individual, as well as their age, all need to be considered.
Main recommendations
- On 16 and 17 year olds: the Commission provisionally recommends that 16 and 17 year olds should be presumed to have full capacity (based on a functional test of understanding) to consent to, and refuse, medical treatment, including surgery and in terms of access to contraception
- On 14 and 15 year olds: the Commission provisionally recommends that 14 and 15 year olds could be able to consent to and refuse, medical treatment, subject to certain conditions, including the best interests of the 14 and 15 year old.
Detailed recommendations
Among the detailed recommendations in the Consultation Paper are:
- In the context of refusal of life sustaining treatment, the Commission provisionally recommends that a 16 year old may make an application to the High Court to have his or her purported refusal appraised.
- The Commission provisionally recommends that a 14 or 15 year old person could be regarded as capable of giving consent to health care and medical treatment, provided he or she has the capacity to understand the nature and consequences of the treatment being provided, and subject to the following conditions:
(a) in the opinion of the medical practitioner, the patient understands the nature and consequences of the proposed treatment
(b) the medical practitioner must encourage the patient to inform his or her parents or guardians
(c) the medical practitioner must consider the best interests of the patient, and
(d) the medical practitioner must have due regard to any public health concerns.
- The Commission provisionally recommends that it would be lawful for a health care professional to provide health care and medical treatment to a 12 and 13 year old, subject to the following conditions:
(a) the medical practitioner must notify the parents or guardians of the child and take account of their views
(b) the medical practitioner must take account of the views of the child in question
(c) the medical practitioner must consider the best interests of the patient, and
(d) the medical practitioner shall have due regard to any public health concerns.
- The Commission provisionally recommends that the Mental Health Act 2001 be amended to make separate provision for people under 18; that all persons under 18 who are admitted and treated under the Mental Health Act 2001 should have access to an independent advocate; and that a Mental Heath Tribunal (with an age appropriate focus) rather than the District Court should review their admission and treatment.
Consultation Paper on Children and the Law: Medical Treatment