REPORT
Children and the Law: Medical
Treatment
(LRC 103 - 2011)
© Copyright
Law Reform Commission
FIRST PUBLISHED
July 2011
ISSN 1393-3132
LAW REFORM COMMISSION’S ROLE
The Law
Reform Commission is an independent statutory body established by the Law
Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to
make proposals for reform, in particular by recommending the enactment of legislation
to clarify and modernise the law. Since it was established, the Commission has
published over 160 documents (Consultation Papers and Reports) containing
proposals for law reform and these are all available at www.lawreform.ie. Most
of these proposals have led to reforming legislation.
The
Commission’s law reform role is carried out primarily under a Programme of Law
Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission
following broad consultation and discussion. In accordance with the 1975 Act,
it was approved by the Government in December 2007 and placed before both
Houses of the Oireachtas. The Commission also works on specific matters
referred to it by the Attorney General under the 1975 Act.
The
Commission’s role also involves making legislation more accessible through
three other related areas of activity, Statute Law Restatement, the Legislation
Directory and the Classified List of Legislation in Ireland. Statute Law
Restatement involves the administrative consolidation of all amendments to an
Act into a single text, making legislation more accessible. Under the Statute
Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on
as evidence of the law in question. The Legislation Directory - previously
called the Chronological Tables of the Statutes - is a searchable annotated
guide to legislative changes. The Classified List of Legislation in Ireland is
a list of all Acts of the Oireachtas that remain in force, organised under 36
major subject-matter headings.
Membership
The Law Reform Commission consists of a President, one
full-time Commissioner and three part-time Commissioners.
The Commissioners at present are:
President:
Vacant
at the time of going to print (July 2011)
Full-time
Commissioner:
Patricia
T. Rickard-Clarke, Solicitor
Part-time
Commissioner:
Professor
Finbarr McAuley
Part-time
Commissioner:
Marian
Shanley, Solicitor
Part-time
Commissioner:
Mr
Justice Donal O’Donnell, Judge
of the Supreme Court
Law Reform Research Staff
Director
of Research:
Raymond
Byrne BCL, LLM (NUI), Barrister-at-Law
Legal
Researchers:
Dannie Hanna BCL (NUI), LLM (Cantab)
Helen Kehoe BCL (Law with French Law) (NUI), LLM
(Dub), Solicitor
Donna Lyons LLB (Dub), LLM (NYU), Attorney-at-Law
(NY)
Tara Murphy BCL (Law with French Law) (NUI), LLM
(Essex), Barrister-at-Law
Darelle O’Keeffe LLB (UL), H Dip Soc Pol (NUI), EMA
(EIUC)
Helen Whately LLB, LLM (Dub), Barrister-at-Law
Statute
Law Restatement
Project
Manager for Restatement:
Alma
Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor
Legal
Researcher:
Andrew
Glynn BBLS (NUI), LLM (Dub)
Legislation
Directory
Project
Manager for Legislation Directory:
Heather
Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law
Legal
Researcher:
Aoife
Clarke BA (Int.), LLB, LLM (NUI)
Administration Staff
Deirdre
Bell
Ann
Byrne
Legal
Information Manager:
Conor
Kennedy BA, H Dip LIS
Cataloguer:
Eithne
Boland BA (Hons), HDip Ed, HDip LIS
Clerical Officers:
Ann Browne
Liam
Dargan
Principal legal researchers for this report
Bríd Nic Suibhne
BA, LLB, LLM (Dub), Diop sa Gh (NUI)
Donna Lyons LLB (Dub), LLM (NYU), Attorney-at-Law
(NY)
CONTACT DETAILS
Further
information can be obtained from:
Law Reform Commission
35-39 Shelbourne Road
Ballsbridge
Dublin 4
Telephone:
+353 1 637 7600
Fax:
+353 1 637 7601
Email:
info@lawreform.ie
Website:
www.lawreform.ie
ACKNOWLEDGEMENTS
The
Commission would like to thank the following people who provided valuable
assistance:
Ballymun Family Practice
Niall
Behan, Irish Family
Planning Association
Lorcan Birthistle, Our Lady’s Children’s Hospital Crumlin
An Bord Altranais
Children’s Rights Alliance
Bríd
Clarke, former
Chief Executive Officer, Mental Health Commission
Fiona
Crowley, Amnesty
International Ireland
Meghan
Doherty, Irish
Family Planning Association
Sonia
Donnelly, Irish
Family Planning Association
Dublin Well Woman Centre
Mary
Forde, Amnesty
International Ireland
Craig
Hodges, Headstrong
Dr. Keith Holmes, Faculty of Child and Adolescent Psychiatry
Iona Institute
Irish College of General
Practitioners
Irish Medical Organisation
Sinead
Kearney, Partner
BCM Hanby Wallace
Mary
Keyes, Mental
Health Commission
Emily
Logan, Ombudsman
for Children
Anna
Lally, Spunout
Karen
McAuley, Ombudsman
for Children’s Office
Bernard
McDonald, Ombudsman
for Children’s Office
Sophie
Magennis, Ombudsman
for Children’s Office
Matheson Ormsby Prentice, Solicitors
Medical Protection Society
Kevin
Mills, Health
Service Executive West
Dr Tom Moran, Consultant Child and Adolescent Psychiatrist
National Congress of
Catholic Secondary Schools Parent Associations
Northside Community Law
Centre
Colm
O’Gorman, Amnesty
International Ireland
Stephanie
O’Keeffe, Crisis
Pregnancy Agency
Pharmacy Law and Ethics
Association of Ireland
Sexual Health Centre
Caroline
Spillane, Crisis
Pregnancy Agency
Carmel
Stewart, Senior
Counsel
Full
responsibility for this publication lies, however, with the Commission.
B Scope of Report and Relevant Roles and Interests
C Outline and Overview of this Report
CHAPTER
1 CHILD
AND EARLY ADULTHOOD DEVELOPMENT AND GENERAL LEGAL PRINCIPLES
B Gradual Maturing From Childhood to Adulthood and
Influence on the Law
(1) Stages of development from infancy to adulthood
(2) Development of decision-making capacity from infancy
to adulthood
(3) The influence of context in the development of
decision-making capacity in those under 18
C Guiding Principles for this Report
(2) Best Interests of the Child
D Definition of Health Care and Treatment
E Voice of the Child in the Healthcare Setting
CHAPTER
2 capacity
of MINORS AND YOUNG PERSONS to consent to and refuse treatment
B Capacity of Persons under 18 to Consent to and
Refuse Treatment in Ireland
(1) Irish law on age categories generally
(2) Consent to treatment by those under 18 and the
Non-Fatal Offences Against the Person Act 1997
(3) Refusal of treatment as a corollary to consent
(4) The Constitution, parental responsibility and the
rights of persons under 18
C Capacity of Persons under 18 to Consent to and
Refuse Treatment in Other Countries
D Discussion and Recommendations on Healthcare Decision
Making by under 18s
(1) The functional test of capacity
(2) 16 and 17 year olds and presumed capacity to consent
to, and refuse, medical treatment
(3) Refusal of life-sustaining treatment by a 16 and 17
year old
(4) Advance care directives by 16 and 17 year olds
(5) Persons under 16 and health care treatment
(7) Statutory Code of Practice
B Mental Health Issues and Appropriate Mental Health
Services
(1) The range of mental health issues
(2) Appropriate service provision
C Rights of the Child in the Context of Mental Health
Legislation
(1) Comparative mental health law
(2) Discussion: 2001 Act and the rights of the child
D Specific Provisions on Children and Young People in
the Mental Health Act 2001
E Recommendations on Reform of the Mental Health
Act 2001
(1) Guiding principles and best interests
(2) Voluntary admission and treatment
(3) Intermediate admission and treatment
CHAPTER
4 SUMMARY
OF RECOMMENDATIONS
APPENDIX A draft health (children and consent to health care
treatment) bill 2011
APPENDIX B outline scheme of
Mental health (amendment) bill
1.
This Report forms part of the Commission’s Third Programme of Law
Reform 2008-2014[1] and follows
the publication in 2009 of a Consultation Paper on Children and the Law:
Medical Treatment.[2] The
Consultation Paper made provisional recommendations for reform of the law
concerning consent to, and refusal of, medical treatment involving persons under
the age of 18. In the Consultation Paper and in this Report, the Commission
uses the term “young person” to refer to 16 and 17 year olds; and the term
“minor” to refer to persons under the age of 16.
2.
Following the publication of the Consultation Paper, the Commission
received a large number of submissions, which made clear the importance of this
project and the sensitive nature of the issues it raised. While the submissions
received expressed diverse views on the Commission’s provisional
recommendations, virtually all of them emphasised the need to clarify to the
greatest extent possible the law, whether from the point of view of those under
the age of 18, their parents and guardians,[3]
or health care professionals who provide for their medical treatment.
3.
The Commission very much appreciates the great interest shown in this
project, in particular through the large number of submissions received since
the Consultation Paper was published, as well as through additional
consultative meetings held with interested parties. These have greatly assisted
the Commission in its deliberations leading to the preparation of this Report.
Having taken into account the submissions received and the other elements of
consultation mentioned, this Report therefore contains the Commission’s final
recommendations on this area, together with a draft Health (Children and Consent to Health Care
Treatment) Bill to implement them.
4.
The Commission notes that in 2009 it received the invaluable assistance
of the Office of the Ombudsman for Children in arranging a Consultation Day
with 15 to 18 year olds prior to the publication of the Consultation Paper.
During this Consultation Day, the Commission heard the perspectives and voices
of many young people. These views, which were summarised in the Consultation
Paper, indicate that among the key issues to be considered in this context are:
openness, the need for clear information on medical treatment (including
information relevant to sexual relationships), and taking into account of the
actual maturity of an individual, as well as his or her age. The Commission
acknowledges the assistance provided by the Ombudsman for Children and her staff
for organising the Consultation Day.
5.
This project involves a continuation of the Commission’s long-standing
work on reform of the law concerning young persons and children. This has
included the Commission’s 1983 Report on the Age of Majority[4]
in which the Commission recommended that the general age of majority – the age
at which a person is regarded as an adult for many purposes – should be reduced
from 21 to 18. This was implemented in the Age of Majority Act 1985, and
this change brought Ireland into line with other states in Europe, in North
America and in Australia and New Zealand. The Commission emphasises that this
current project does not involve a general review of whether the age of majority
should be reduced but, as the detailed discussion in this Report indicates, the
issue of medical treatment involving those under 18 has often featured in such
general reviews and subsequent legislative changes.
6.
Because this Report involves an examination of capacity to consent to,
and to refuse, medical treatment, it also complements the Commission’s more
recent work on the law concerning mental capacity as it applies to those over
18 years of age. This work culminated in the Commission’s 2006 Report on
Vulnerable Adults and the Law,[5] which contained a draft Scheme of a Mental
Capacity Bill. The Report was based on a presumption of capacity for those
over 18 years of age and a functional test of capacity, that is, a case-by-case
test of capacity based on whether the person understands the nature and effect
of the specific decision being made. The Commission’s approach in the 2006
Report reflects recent
international trends in this area, including the rights-based analysis found in
the 2006 UN Convention on the Rights of Persons with Disabilities. The
Commission is conscious that the Government is committed to publishing by the
end of 2011 a Mental Capacity Bill that is consistent with the 2006 UN
Convention.[6] The
Commission’s work in this area also includes the 2009 Report on Bioethics:
Advance Care Directives,[7] in which the Commission reiterated the discussion in the
2006 Report that highlighted the movement towards the view that patients have
the right to make informed decisions about their treatment.[8]
As stated in the 2006 and 2009 Reports, this involves a significant shift from
a paternalistic approach – that decisions about healthcare options and
treatment are primarily for health care professionals – towards the view that
the patient must be actively engaged in a process that leads to informed
decision making about his or her care and treatment options, including in the
specific context of making an advance care directive.[9]
The Commission reiterates the importance of these developments in the current Report.
7.
This Report also reflects some of the analysis on the rights of
children, and their parents and guardians, discussed in detail in the
Commission’s 2010 Report on Legal Aspects of Family Relationships.[10] In that Report, the Commission
emphasised the importance of the voice of the child, as well as reflecting the
weight to be given to the decision-making responsibility of those having
parental responsibility for a child. These themes are also reflected in this
Report.
8.
The Commission is conscious that this Report is being published at a
time when the rights of children, which currently includes all those under 18
years of age, are subject to wide-ranging debate in Ireland. This has involved
at least two very different, but intersecting, matters. First, how the law
should respond to the reports published since 2005 into the widespread abuse of
children in the State, including abuse in institutional settings and clerical child
sexual abuse, which had occurred during the second half of the 20th
Century and into the first decade of the 21st Century.[11]
Second, whether the rights of children should be given explicit recognition in
the Constitution, arising from inquiries into vulnerable children and into the
operation of the law concerning sexual offences involving, in particular,
adolescents and young adults.[12] In the wake
of these matters, for example, revised 2011 Children First: National Guidelines for the Protection and Welfare
of Children were
published by the Minister for Children and Youth Affairs in July 2011.[13]
The Commission is aware that these matters – including the nature of any
constitutional amendment to underpin more clearly the rights of children,
whether the current age of consent in the criminal law of sexual offences
should be reduced from 17 to 16 and also whether the voting age should be
reduced from 18 to 16 – remain under active consideration as this Report is
published. The Commission therefore emphasises that this Report does not deal
with these wider matters, other than where they provide relevant analysis of
the respective rights of children and their parents and guardians, and of the
interests of the State, in the context of the scope of this Report.
9.
The Commission
considers that it is important to describe the scope of the Report, including
what it does and does not address. The Report involves an examination and
discussion of the law concerning medical treatment and health care as it
applies to children and young people who are under 18 years of age. The Commission
emphasises that this involves a wide range of health-related issues concerning
persons under 18 years of age, including: dental care and treatment;
over-the-counter medicines of specific relevance to adolescents, such as
products related to skin conditions; prescriptions for antibiotics or
contraceptives; counselling and treatment concerning mental health; an X ray;
treatment related to a soft tissue sports injury or broken arm; and surgery and
treatment connected to cancer or a chronic condition such as cystic fibrosis.[14]
10.
The Commission
underlines, therefore, that this Report is not restricted to a narrow issue
such as contraception, although the Commission acknowledges that this is a
matter on which a good deal of media and public attention is likely to be
focused. The Commission also notes that the Report does not deal with
many of the wider policy issues with which this area is connected, such as the
policies in place to deal with teenage pregnancy, reform of the law concerning
the availability of contraception or whether health-related matters such
as access to sunbeds by those under 18 should be regulated. Similarly, although
the Commission recommends in this Report that persons under the age of 18
may be regarded as being capable of consenting to, or refusing, medical
treatment, the proposals made do not involve a general reduction in the age of
majority.
11.
In approaching the preparation of this Report, the Commission was
conscious that it must reflect the rights, roles and interests of children,
parents and guardians, healthcare professionals and the State. In this respect,
the Commission is conscious of the rights of children under the Constitution
and under international human rights standards. Equally, the Constitution and
international human rights standards recognise that parents have an integral
role to play concerning their children, including in the context of medical
treatment and health care received by them. Moreover, parents are generally well placed to safeguard the health and
wellbeing of their children. As the relevant literature, health care practice
and international human rights standards of recent years indicate, of course,
parents must carry out their responsibilities in a manner that respects the
evolving capacities of their child as they approach and reach adulthood.
Parents and health and social care professionals have a responsibility to act
in the best interests of those under 18 and to care for them in a manner that
respects their dignity and wellbeing. Both parents and healthcare practitioners have a responsibility to
adjust the levels of direction and support offered to a child, gradually
enabling children to participate more in the realisation of their rights.
12.
The Commission is also
conscious that the State is required by the Constitution and under international
human rights standards to
ensure the protection and welfare of the child in general. Under the
Constitution, and under specific legislation such as the Child Care Act 1991,
carefully-judged intervention to protect children may be required where a
child’s parents have failed in their duty to the child. The State, through the
courts, has also been required to intervene where children are in immediately
life-threatening situations. Under the Constitution, the courts have an
inherent jurisdiction to act to vindicate the rights of, and to protect,
vulnerable persons. Prior to the coming into force of the Constitution in 1937,
this was referred to as the parens patriae jurisdiction of the courts,
which clearly indicated a paternalistic approach; but under the Constitution,
any such intervention would occur to vindicate and protect the rights of
children.[15] Thus, the
Commission notes that, in one form or another, such necessary intervention
remains a feature of the relevant law in Ireland – and also in the law of other States discussed
in this Report.
13.
Mason & McCall
Smith refer to the triangular relationship of medicine, society and the law:
“The general rules of doctoring are being developed within a moral
framework which is constantly being restructured by contemporary society while,
at the same time, doctors frequently find themselves operating in an atmosphere
of legal uncertainty.”[16]
14.
The New South Wales Law
Reform Commission also captured the complexity of such questions:
“This is an
area where there are no easy answers about who should have a say and who should
not... The law is a blunt instrument to have to deal with these sorts of
considerations, and the formulation of an appropriate legislative framework to
fall back on in these situations is particularly challenging. Any attempt at
devising such a framework should acknowledge from the start the moral and
emotional dimensions of this area of law, and its controversial nature which is
susceptible to provoking at times, heated debate.”[17]
15.
Ideally, through informed discussion and participation by all those
involved – children, parents, guardians and health care professionals –
practical solutions and consensus can be reached that respect the rights and
interests of all parties. When this is not possible, however, it is important
to have in place a clear statutory framework that contains general principles.
Nonetheless, given the complexities of the issues raised, it would not be
possible to draft legislation that could provide definitive solutions to all
the moral, ethical and public policy questions involved. For this reason, and
reflecting the approach taken in most other countries, the Commission has taken
the view in this Report that, on a number of specific matters, a statutory Code
of Practice, based on the principles in the draft Health (Children and Consent to Medical
Treatment) Bill attached to the Report, should provide detailed
guidance as to how specific scenarios would be worked out in practice.
16.
The Commission now turns to provide a brief overview of the Report.
17.
In Chapter 1, the Commission discusses the general literature on child and early adulthood
development, which reflects
the reality that individuals mature in a gradual manner from infancy to
adulthood and that this is also affected by their particular environment. This
literature has influenced the development of the law concerning children
and young adults, both nationally and internationally, with the result that
some laws refer to a specific age as the basis for determining the legal
competence or liability of a person under 18, while others focus on the
maturity of the person. These laws often include the need to have regard to the
continuing role of parents or guardians, and the need to ensure that the
welfare of children is a paramount factor. The Commission then sets out the principles that flow from the
literature, and from the relevant constitutional and international human rights
instruments in this area. These principles (which require respect for the rights of
children and of their parents/guardians, having regard to the need to ensure
that the best interests of the child are a primary consideration) form
the basis for the Commission’s detailed analysis in this Report. The Commission
then discusses in Chapter 1 the broad scope of health care and medical
treatment covered in the Report, the voice of the child in the health care
setting and the nature and extent of confidentiality.
18.
In Chapter 2, the
Commission discusses the detailed aspects of consent to, and refusal of,
healthcare treatment by individuals under the age of 18, having regard to the
general principles set out in Chapter 1. The Commission discusses
decision-making by young persons, that is, 16 and 17 year olds, and,
separately, minors, that is, those under the age of 16. In Chapter 2, the
Commission begins by discussing the current legal position in Ireland,
including the effect of section 23 of the Non-Fatal Offences Against the
Person Act 1997 which provides, in the context of criminal law, that
consent to medical treatment by a 16 and 17 year old has the same status as if
he or she was an 18 year old. The Commission also discusses the position in
Irish case law of those under 16, which reflects the general literature as well
as legal developments in other countries concerning mature minors. The
Commission then discusses in detail statutory provisions and case law
concerning health care involving those under 18 in a number of countries, in
particular, England and Wales, Northern Ireland, Scotland, Canada, Australia
and New Zealand. The Commission concludes Chapter 2 by setting out its
recommendations concerning consent to and refusal of treatment for those under
18. The Commission’s approach is that this should be as consistent as possible
with the proposed reform of the law on mental capacity for those over 18, and
the Commission therefore favours a functional test of capacity. The Commission
sets out its recommendations concerning 16 and 17 year olds, and then sets out
separately its recommendations for those under 16.
19.
In Chapter 3, the
Commission discusses issues of capacity and healthcare decision-making
involving children and young people who engage with mental health services. The
Commission notes that the general principles and detailed recommendations set
out in Chapters 1 and 2 also apply in the context of mental health provision.
In Chapter 3, the Commission’s discussion does not deal with mental health law
in general, but focuses primarily on the admissions process under the Mental
Health Act 2001. The Chapter contains a brief overview of the extent of
mental health issues involving children and young people in Ireland and the
appropriateness of available services. The Commission then examines the rights
of children and young people in the context of mental health legislation and
service provision, followed by a discussion of the provisions of the Mental
Health Act 2001 as they relate to children and young people, including its
shortcomings in this respect. The Commission then sets out recommendations for
reform of the Mental Health Act 2001 as it applies to children and young
people, which includes recommending the introduction of a new category of
“intermediate” admission and treatment.
20.
Chapter 4 is a summary
of the Commission’s recommendations in the Report.
21.
Appendix A contains a
draft Health (Children and Consent to Health Care Treatment) Bill to
implement the general recommendations for reform made in the Report.
22.
Appendix B contains an Outline
Scheme of a Mental Health (Amendment) Bill to implement the recommendations in Chapter 3 for
reform of the Mental Health Act 2001 as it applies to persons under 18.
1.01
In this Chapter, the Commission begins in Part B with a brief discussion
of the general literature on child and early adulthood
development, which reflects
the reality that individuals mature in a gradual manner from infancy to
adulthood and that this is also affected by their particular environment. This
literature has influenced the development of the law concerning children
and young adults, both nationally and internationally, with the result that
some laws refer to a specific age as the basis for determining the legal
competence or liability of a person under 18, while others focus on the
maturity of the person. These laws often include the need to have regard to the
continuing role of parents or guardians, and the need to ensure that the
welfare of children is a primary consideration. In Part C, the Commission then sets out the
principles that flow from the literature, and from the relevant constitutional
and international human rights instruments in this area. These principles
(which require respect for the rights of children and of their
parents/guardians, having regard to the need to ensure that the best interests
of the child are a primary consideration) form the basis for the Commission’s
detailed analysis in this Report. In Part D, the Commission discusses the broad
scope of medical treatment covered in the Report. In Part E the Commission
discusses the voice of the child in the health care setting and in Part F the Commission discusses the
nature and extent of confidentiality.
1.02
In this Part, the
Commission briefly surveys the general international literature on childhood
and early adulthood development,[18] which is
also mirrored in comparable material in Ireland.[19]
The literature emphasises that there is no universal definition of childhood,
and that the concept varies according to the societal setting in which it is
discussed. An accurate description of the concept of “childhood” must,
therefore, include not merely a biological aspect but also a social element.
Thus, the reality that individuals mature in a gradual manner from infancy to
adulthood must take account of the particular society in which they grow up.
The biological development of children to puberty is, largely, dependent on the
general standard of nutrition in a society. In developed countries such as
Ireland, children now reach puberty earlier by comparison with previous Irish
generations and also by comparison with children in some contemporary
developing countries. The general literature also notes that some societies
differentiate between the approach taken to male and female children, but in
Ireland (at least in recent decades) male and female children are treated
equally.
1.03
Conversely, while
children in Ireland are developing biologically to puberty at an earlier age,
their exposure to some aspects of the adult world, notably the paid work
environment, has increasingly been postponed to a later age. Developed
countries and economies require a workforce that is highly educated,
communicative and independent, which means that more children and young people
will remain in education for extended periods. By contrast, in developing
countries many very young children continue to join the labour market at an
early age. For young people in developed countries such as Ireland, postponing
participation in the paid workforce may lead, at some levels and relatively
speaking, to reduced responsibility and a greater degree of dependency (or even
risk-taking, as in the case of “boy racers”), whereas their contemporaries in
developing countries, who are actively engaged in paid (and domestic) work, may
have taken on, again at certain levels, relatively high levels of
responsibility.
1.04
It is also important to
note, of course, that exposure of very young children to the labour market does
not indicate that, in those countries, the child was asked for their views and
willingly participated after a mature, informed, reflective analysis; still
less that there was any informed assessment by their parents or guardians that
this was in their best interests. Equally, the earlier onset of puberty in
developed countries such as Ireland may lead to earlier engagement with another
aspect of the adult world, the development of personal and intimate
relationships – and related issues of sexualisation. As with early
participation in the labour market, the fact of earlier engagement in personal
and intimate relationships – and sexualisation – does not, as such, indicate
that the young people involved have willingly participated after a mature,
informed, reflective analysis, or that they have developed a level of maturity
that matches their activities.
1.05
The Commission also
discusses in this Part how the literature on childhood and early adulthood
development has influenced the law in Ireland. In this respect, the Commission
notes that society (including the relevant legal framework) has a
responsibility to support children’s rights as they develop, must involve them
in decision-making and at the same time provide appropriate protection bearing
in mind their level of maturity (including immaturity).
1.06
The most significant
international human rights instrument in this area, the 1989 UN Convention on
the Rights of the Child (UNCRC), defines a child as a person under the age of
18. This reflects the position in Ireland, where the view that adulthood begins
generally at 18 is reflected in the Constitution which sets the voting age at
18 (since 1972, when by referendum the voting age was reduced from 21), in the Age
of Majority Act 1985 which specifies 18 as the age at which a person
reaches adulthood for the purposes of commercial contracts and others aspects
of civil liability (again reducing it from 21), and in the Family Law Act
1995 which provides that a person must be 18 to marry (in this instance,
raising it from the previous age of 16). This also reflects the general
position in many developed countries where 18 is currently marked as the
boundary between childhood, or minority, and adulthood, majority.
1.07
As to the development
of those under 18, and bearing in mind the difficulty in drawing clear lines in
this area, the literature on childhood and early adulthood development refers
to various stages including infancy, early childhood, puberty, adolescence and
adulthood. Since individuals reach these stages at different times, and since
childhood is nowadays accurately described as involving not only a biological
aspect but also a social aspect, the literature also contains various “age
bands” rather than specific ages which broadly correspond to these stages of
development. In general terms, therefore, these can be described in this way:
Infancy: this usually refers
to the first year of a child’s life, though sometimes it is also taken to
include up to 3 years of age (“toddler”).[20]
Early childhood: generally
refers to age 3 to 10 or 11, often coinciding in developed countries with
primary level schooling.
Pre-adolescence: approximately age 10 to 12.
Puberty: the age at which the
human body becomes capable of reproduction. For girls, this usually begins at
about 10 or 11, while for boys it begins at 12 or 13. Girls usually complete
puberty by 15 to 17, while boys do so at 16 to 18.
Adolescence: generally taken
to coincide with the teenage years from 13 to 19. It also often coincided with
puberty, but pre-adolescent puberty is, in many countries, now more common
because of improved living
conditions and better nutrition. “Early adolescence” is generally taken
to run from about 13 to 15. The end of adolescence, at 18 or 19, marks the
beginning of adulthood in biological terms.
1.08
In parallel with the physical and reproductive development of children
and young persons, the literature also focuses on the development of
decision-making capacity of human beings through these ages. Again, in broad terms, these can be
described in this way:[21]
Infants to pre-adolescents: up to age 12. Children up to 3 years are not able to
understand the perspective of others, and lack any significant decision-making
capacity. From age 3 to 11, children are increasingly able to recognise that
people have different perspectives, and gradually acquire the ability to see
another’s point of view. By age 11, children begin to be able to understand a third-person
perspective and appreciate that people may have mixed feelings about something.
Children up to about 12 are, broadly, focused on the immediate, and do not
have, in general terms, the ability to distinguish between the actual and the
possible. They do not, therefore, tend to be able to test hypotheses and plan
for the future or to be able to be introspective and make judgements. The
majority of those under 12 do not, therefore, generally have the cognitive
ability or judgement skills to make major decisions that could affect their
lives.
Pre-adolescents and early adolescents: age 12 to 15. In general,
typical 12 and 13 year olds may believe that a problem has only one solution,
and that acts or solutions are either right or wrong. By 14 and 15, there is a
considerable growth in the ability to make critical and pragmatic decisions and
choices and the development of moral reasoning. Many in this age group can,
therefore, test hypotheses, plan for the future and have the cognitive ability
or judgement skills to make major decisions that could affect their lives. Others may, however, find it difficult to
imagine risks and consequences of decisions and to recognise the vested
interests of others, and this may be associated with the loss of brain tissue
in those areas of the brain controlling impulses, risk-taking and self-control.
.
Adolescents: 16 and 17 year olds.[22] By this age, most adolescents are capable of
quite sophisticated decision-making. This does not mean that their judgement is
well-informed or mature, and risk-taking is still a characteristic of
decision-making at this age. This in turn may lead to behaviour which is
dangerous for the young person or society. Equally, many 16 and 17 year olds
make more mature decisions by comparison with those over 18.
1.09
The Commission notes that the literature on childhood and early adulthood development
does not suggest that policy, or laws, concerning children should be divided into
these three broad age bands, in which children under 12 are “presumed to lack
capacity”, those between 12 and 15 “presumed to have some capacity” and those
aged 16 and 17 “presumed mostly to have capacity.” The literature emphasises,
indeed, that children, just like adults, demonstrate differing levels of
competence in different contexts. The Commission now turns to a brief overview
of this aspect of the literature.
1.10
Studies have indicated,
for example, that a child’s place within a family, such as whether they have
older or younger siblings, is likely to impact on capacity and levels of
assumed responsibility. The level of support and encouragement that a child is
given also has a significant impact on competence. Equally, the exposure of
children to specific, and unusual, situations can greatly influence their
competence in decision-making.
1.11
In the specific context
of this Report, an English 1993 study[23] on
children’s capacity to consent to surgery indicates that children as young as 8
years old who have experienced extensive levels of medical treatment can acquire
the ability not only to understand their condition and propose treatments, but
also to make wise decisions, often involving life or death implications.
Children’s levels of understanding were developed according to their individual
experience, coupled with the levels of expectation and support available to
them. Extremely young children who had experienced high levels of medical
intervention often had the capacity to make painful and difficult decisions. It
is clear, therefore, that a person under 18 with, for example, cystic fibrosis
is likely to have developed a greater level of maturity and decision-making
capacity in connection with their healthcare treatment than a similarly-aged
person who has not had a similar level of interaction with healthcare
professionals. This approach emphasises, therefore, the need to avoid an
exclusive focus on age.[24]
1.12
The literature also indicates that particular difficulties arise in the
context of adolescence, a period of significant life change, characterised by
rapid physical development, sexual maturation and growing social expectations.
While adolescents in developed countries are better-educated, better informed
and healthier than ever before, this has the disadvantage that in a rapidly-
changing and globalised world, they are exposed to many influences from the
adult world at a vulnerable time in their development. While society must
ensure a rights-based approach to children as they make decisions and develop
towards adulthood, it is also recognised that adolescents will need some level
of protection and help in personal decision-making, decisions that directly
affect children’s own lives but which they may lack the experience or knowledge
to make in their own best interests.[25] Ultimately,
the literature indicates that respect for children’s evolving capacity to take
responsibility for decision-making must be balanced against their relative lack
of experience, the risks encountered, and the potential for exploitation and
abuse.
1.13
This general overview of the literature on the stages of development
from infancy to early adulthood indicates that, at various points, in
particular through the teenage years, children and young people develop
increasingly sophisticated cognitive capacity and related decision-making
judgement. The Commission notes that, not surprisingly, this reality has had a
major influence on the development of the law in this area.
1.14
For the purposes of
this Report, the two major issues are: firstly, when does a “child” or “young
person” become an “adult” and, second, to what extent can a “child” or “young
person” be deemed capable, or competent, to make decisions either together
with, or independently from, their parents or guardians.
1.15
As to when a “child” or
“young person” becomes an “adult,” there has been general agreement that a
defined age should mark that break. In medieval times, when the ability to hold
a sword was important that age was set at 21, and for many “Western” countries
such as Ireland this persisted as the “age of majority” until well into the 20th
Century. In the second half of the 20th Century, most countries
reviewed the age of majority downwards, largely because people matured earlier
due to improved living conditions and better nutrition with the resulting
consequence that there was more active participation in society by 18 to 21
year olds. In the second half of the 20th Century, many people
between 18 and 20 were unable to obtain loans without a guarantee from their
parents or guardians, and so commercial organisations were among those who
argued for a reduction in the age of majority from 21 to 18.[26]
As a result, many states reduced the age of majority from 21 to 18, as happened
in Ireland under the Age of Majority Act 1985.[27]
As already mentioned, this also reflects the recognition at international
level, in the 1989 UN Convention on the Rights of the Child (UNCRC), that
adulthood begins at 18 and that childhood runs to 18.
1.16
As to whether a “child”
or “young person” can be regarded as competent to make decisions either
together with, or independently from, their parents or guardians, the law
could, broadly, be described as mirroring the general literature and the
understanding of how individuals mature over time. Thus, in respect of very
young children, the law has long held the general view that parents and
guardians must always be primarily accountable and responsible for their safety
and welfare. Consequently, parents and guardians take the major decisions on
behalf of their very young children, and this remains a key aspect of the law
in this area in most countries, including Ireland. This means that, in general,
a decision by parents or guardians concerning their very young children will be
upheld even if this is in conflict with the views of professional persons. For
example, in North Western Health Board v HW and CW[28] the Supreme Court upheld the refusal of parents to allow doctors to carry
out the “heel prick” PKU blood test on their baby son, even though the Court
acknowledged that most parents are happy to consent to this test. In accordance
with Articles 41 and 42 of the Constitution (which as discussed below reflect
international human rights instruments on the primacy of parental
decision-making in this context), their decision as parents would only be
overturned if the decision would threaten the life or urgent health needs of
the very young child.
1.17
As a child matures
through pre-adolescence and adolescence, the role of the parent and guardian
might lessen to one degree or another, so that the child’s decision-making
should be given some degree of recognition. Reflecting the general literature
that different children mature differently, there has also been a general
reluctance to specify a definite age under the age of adulthood (whether this
has been set at 18 or 16) at which a child should be regarded as being
competent or accountable for their decision-making. Instead, in some instances
some quite young ages have been specified as thresholds for specific purposes,
whereas a more general “maturity” or “understanding” test, without reference to
a specific age, has been used for other purposes.
1.18
Thus, the age of
criminal responsibility in Ireland is based on a generally applicable age
threshold of 12,[29] which
broadly corresponds with the beginning of adolescence and the type of
understanding and insight that goes with that, as discussed above. Setting a
specific age of responsibility, rather than legislating for a general
“maturity” test, reflects the perceived importance of certainty in the context
of the application of the criminal law. Equally, and reflecting the specific
needs of those aged 12 to 17, the Irish criminal process also provides for
different arrangements for dealing with breaches of the criminal law, including
more concerted efforts to avoid the full rigours of the criminal process.[30]
1.19
By contrast with this
age-specific limit of 12 years, section 24(b) of the Child Care Act
1991 provides that, in
child care proceedings, a court must “in so far as is practicable, give
due consideration, having regard to his age and understanding, to the wishes of
the child.” Similarly, section
24(2) of the Adoption Act 2010 provides that, where a child over 7 years of age is considered
for adoption, the Adoption Authority must give due consideration to the
wishes of the child “having regard to his or her age and understanding.”
Authoritative case law in Ireland has taken the same approach. In McK v
Information Commissioner,[31] the Supreme Court recognised, in the context of a health
care setting, that the views of a 17 year old young person “are very relevant”[32]
and may also override the general presumed entitlement of a parent to health
information about their children.
1.20
The approach taken in the
Child Care Act 1991 and the
Adoption Act 2010, and by the Supreme Court in McK v Information
Commissioner, reflects the literature discussed above, as well as relevant
international legal standards concerning children, notably set out in the 1989
UN Convention on the Rights of the Child (UNCRC). Article 5 of the UNCRC
provides that the State must respect the rights and responsibilities of
parents, or other caregivers, to provide “appropriate direction and guidance in
the exercise by the child of their rights in a manner consistent with the
evolving capacities of the child.” Article 5 thus reflects the view that
parental rights and responsibilities must also take account of the “evolving
capacities of the child.” This is also linked with Article 18 of the UNCRC,
which states that “the best interests of children will be [the] basic concern”
of all those involved in ensuring the effective implementation of the rights of
children.
1.21
The Commission now
turns to set out the guiding principles it has used in preparing this Report.
The Commission considers that it would be useful to include these general
principles in the draft Health (Children and Consent to Medical Treatment) Bill
attached to the Report. This is consistent with the Commission’s approach in
the 2006 Report on Vulnerable Adults and the Law,[33] which
inserted a list of guiding principles in the draft Scheme of a Mental
Capacity Bill attached to that Report. This approach has also been used in
existing legislation in this area, such as the Guardianship of Infants Act
1964, the Child Care Act 1991 and the Adoption Act 2010, each
of which set out general principles concerning the paramount importance
of the welfare of the child and also the need to take account of the views of
the child.[34]
1.22
Reflecting the
literature already discussed, Irish law has long recognised in a number of
areas a gradual transition from complete dependency in childhood to
independence at adulthood at 18 (or, before the Age of Majority Act 1985,
at 21).[35] Since the
coming into force of the Constitution of Ireland in 1937 and the advent of a
rights-based analysis to this area, a similar approach has been taken.
Article 41.1.1º of the Constitution provides that:
“The State recognises the Family as
the natural primary and fundamental unit group of society.”
1.23
Article 41.1.1º is sometimes regarded as an unusually strong recognition
of the importance of the family unit, but it is virtually identical to Article
16.3 of the 1948 UN Universal Declaration of Human Rights, which states:
“The family is the natural and
fundamental group unit of society and is entitled to protection by society and
the State.”
1.24
Given that the 1948 UN Declaration was approved 11 years after the 1937
Constitution, it is clear that Article 41.1.1º cannot be described simply as
reflecting a 1930s view of the family, still less the view of a particular
religious perspective.[36] Indeed,
since the second half of the 20th Century the relevant international
instruments have continued to support this approach to the family. Thus,
Article 23.1 of the 1966 UN International Covenant on Civil and Political
Rights (ICCPR) involves a remarkable reflection of the text of Article 41.1.1º
and provides:
“The family is the natural and
fundamental group unit of society and is entitled to protection by society and
the State.”
1.25
Similarly, the Preamble to the 1989 UN Convention on the Rights of the
Child (UNCRC) reiterates that the family is “the fundamental group of society.”
The 1966 and 1989 UN Conventions thus underline that Article 41.1.1º reflects a
contemporary view at international level of the fundamental importance of the
family unit. It is not surprising, therefore, that this approach is reflected
not only in Article 41 of the Constitution of Ireland but also in the law of
other states, such as Germany and Australia.[37]
For example, section 43(1)(b) of the Australian (federal) Family Law Act
1975 states that, in family law proceedings, Australian courts must have
regard to “the need to give the widest possible protection and assistance to
the family as the natural and fundamental group unit of society.” The
Australian 1975 Act was clearly intended to codify Article 23.1 of the 1966
ICCPR.[38]
1.26
Article 42.1 of the Constitution reinforces the statement in Article 41
that the family is the fundamental unit group of society by acknowledging that
the family is “the primary and natural educator of the child.” Article 42.5
provides that only in “exceptional circumstances” where parents “fail in their
duty towards their children” the State may “supply the place of parents.”
Article 42.5 also states that any such role of the State must have due regard for
the rights of the child. As with Article 41.1.1º, Article 42 is reflected in
relevant international human rights documents. Thus, Article 18 of the 1989 UN
Convention on the Rights of the Child (UNCRC) states that “[p]arents or, as the
case may be, legal guardians, have the primary responsibility for the
upbringing and development of the child” and that the State must provide
appropriate assistance to parents and guardians. Article 9 provides that the
State may only intervene to separate a child from parents against their will
where “such separation is necessary for the best interests of the child.”
1.27
The provisions of Articles 41 and 42 of the Constitution, and the
relevant international instruments such as the 1948 UN Universal Declaration of
Human Rights, the 1966 ICCPR and the 1989 UNCRC, contain the following
important elements: (a) parents and guardians have primary responsibility for
the upbringing and development of their children, (b) the State may intervene
to supply the place of parents only in exceptional circumstances where this is
necessary, and (c) the rights of the child, and their best interests, must
always be taken into account in this context.
1.28
In terms of the general status of the rights of the child under the
Constitution, Walsh J stated in the Supreme Court decision G v An Bord
Uchtála:
“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 that right are independent of any
right of the parent as such.”[39]
1.29
It is clear that the younger a child is, the greater the responsibility
that is imposed on parents or guardians to ensure that the rights of children
are implemented and protected; and that the State may only intervene to
override any parental decision in exceptional instances. For example, in North
Western Health Board v HW and CW[40] the Supreme Court did not override the refusal of parents to consent to
doctors carrying out the “heel prick” PKU blood test on their baby boy. Even
though the Supreme Court noted that most parents would be happy to have the
test carried out and the medical view was that the test be done, it decided
that any overriding of parental decision-making would only be suitable if the
refusal threatened the child’s life or immediate health. Equally, as the
child grows and develops to maturity through adolescence and into their teenage
years, their emerging capacity to exercise their rights jointly with, and then
independently of, their parents must also be recognised. In McK v
Information Commissioner,[41] the Supreme
Court recognised, in the context of a health care setting, that the views of a
17 year old young person are
very relevant and may also override the general presumed entitlement of a
parent to health information about their children.
1.30
The approach of the
Supreme Court in the G case, the North Western Health Board case
and the McK case is
consistent with the literature on child development discussed above and the
relevant international instruments in this area. It is also consistent with the
extensive case law and legislation in other states which the Commission
discusses in Chapter 2, below. This approach recognises a number of important
points: that a child has rights that are independent of any right of the parent
as such; that these rights are, during the child’s early years, exercised on
behalf of the child, usually by the child’s parents or guardians; that the
rights remain the rights of the child as they develop towards maturity and
adulthood; and that there are various points, sometimes based on an age
threshold and sometimes based on an assessment of maturity and capacity, at
which the law recognises that the child can exercise these rights independently
of their parents or guardians even before they reach full adulthood at the age
of 18. As a result, the law acknowledges that a person under 18 years of age
is, in a number of contexts, an independent rights-holder that is commensurate
with the progressive development and maturity of that person.
1.31
The Commission has
therefore concluded that this analysis of the rights of children in the context
of the family should be reflected in the approach it takes to the specific
issues addressed in this Report, and in the draft Bill appended to it. The
Commission accordingly recommends that legislation should be enacted dealing
with consent to, and refusal of, medical treatment concerning persons under the
age of 18, and which would include the following general principles: having
regard to the recognition in the Constitution and international instruments of
the family as the fundamental group in society, parents and guardians
have primary responsibility for the upbringing and development of their
children; the State may intervene to supply the place of parents in exceptional
circumstances where this is necessary; the rights of the child, and their best
interests, must always be taken into account in this context; a child has rights that are independent of any
right of the parent as such; that these rights are, during the child’s early
years, exercised on behalf of the child, usually by the child’s parents or
guardians; that these rights remain the rights of the child as they develop
towards maturity and adulthood; and that there are various points, sometimes
based on an age threshold and sometimes based on an assessment of maturity and
capacity, at which the law recognises that the child can exercise these rights
independently of their parents or guardians even before they reach full
adulthood at the age of 18.
1.32
The Commission
recommends that legislation should be enacted dealing with consent to, and
refusal of, medical treatment concerning persons under the age of 18, and that
it should include the following general principles: having regard to the
recognition in the Constitution and international instruments of the family as
the fundamental group in society, parents and guardians have primary
responsibility for the upbringing and development of their children; the State
may intervene to supply the place of parents in exceptional circumstances where
this is necessary; the rights of the child, and their best interests, must
always be taken into account in this context; a child has rights that are
independent of any right of the parent as such; these rights are, during the
child’s early years, exercised on behalf of the child, usually by the child’s
parents or guardians; these rights remain the rights of the child as they
develop towards maturity and adulthood; and there are various points, sometimes
based on an age threshold and sometimes based on an assessment of maturity and
capacity, at which the law recognises that the child can exercise these rights
independently of their parents or guardians even before they reach full
adulthood at the age of 18.
1.33
The Commission also
considers that it is important to recognise, bearing in mind the literature on
the development of children, that while a child can develop a sense of maturity
and capacity for decision-making before the age of 18, this capacity and
decision-making cannot be equated with the decision-making of a person with longer
experience. In that respect, another important feature in the literature on
children’s rights is the need to ensure that any outcome is in the best
interests of the child.[42]
In this context, it is important to ensure that respect for the rights of the
child also takes account of an objective assessment of what is in the child’s
interests. In Irish law, the best interests test already forms part of
the legal framework applicable to decisions about children. Thus, section 3 of
the Guardianship of Infants Act 1964, section 24 of the Child Care
Act 1991 and section 24 of the Adoption Act 2010 require that
decisions concerning children be based on their best interests.
1.34
The best interests test
has sometimes been criticised as amounting to no more than a simple
paternalistic test of “parents know best” or, in the context of this Report,
“doctor knows best”. When the best interests test is seen, however, in the
light of a rights-based approach, it is clear that it is not paternalistic in
nature but has an objective aspect that ensures an appropriate level of
protection against outcomes that would be inconsistent with the rights of
children. This objective aspect of the best interests test has been emphasised,
for example, in the 2009 decision of the Supreme Court of Canada in AC
v Manitoba (Director of Child and Family Services).[43] It is notable that the best
interests test has also been incorporated into international rights-based instruments on
children, including the 1989 UN Convention on the Rights of the Child. This objective best interests test
ensures, therefore, that the health care outcome in an individual case is not
to be equated with the particular preferences of the person under 18, his or
her parents or guardians (subject to the presumption that their views should be
given priority under Article 41), still less of any person acting in the place
of parents or guardians (such as the Health Service Executive exercising powers
under the Child Care Act 1991). The Commission emphasises that this is
as important in the context of physical health care as it is in the context of
mental health care. Indeed, the Commission notes that, in the very specific
context of the detention of a young person under the Mental Health Act 2001,
an objective best interests test ensures that all those involved in
decision-making under the 2001 Act do not equate any person’s preferences for
specific forms of treatment with the best interests of the child or young
person. Viewed in this light, the Commission has therefore concluded, and
recommends, that the “best interests” test, assessed objectively by reference
to the rights of the child, should be included as a primary consideration in
the approach it takes to the specific issues addressed in this Report, and in
the draft Bill appended to it.
1.35
The Commission
recommends that its proposed legislation on consent to, and refusal of, health
care and medical treatment concerning persons under the age of 18 should
include as a primary consideration the best interests of the child, assessed objectively by
reference to the rights of the child.
1.36
The Commission now
turns to discuss how to define the scope of the health care and medical
treatment with which this Report is involved. This is important in the context
of describing the scope of the recommendations in this Report, and of the draft
Bill appended to the Report.
1.37
In order to approach
this aspect of the Commission’s recommendations, it is important to note the
range and scope of the types of health care and related medical treatments
involving children and young people. These include:
· dental
care and treatment
· eye
care and treatment
· over-the-counter
medicine of specific relevance to adolescents, such as products related to skin
conditions
· prescription
for antibiotics
· prescription
for contraception
· advice
and counselling on general health and development
· counselling
and treatment concerning mental health
· prescription
for anti-depressants
· admission
to mental health facility
· X
ray
· treatment related to a soft tissue
sports injury or broken arm
· surgery
for removal of the appendix
· surgery
and treatment connected to cancer
· surgery and treatment
connected with a chronic condition such as cystic fibrosis
· paediatric research
and clinical trials.
1.38
The Commission noted in
the Consultation Paper that existing legislation does not contain a single,
generally applicable, term to define “medical treatment” or “health care.”
Given the wide range of care and treatment involved and the changing nature of
health care and treatments, this is not surprising.
1.39
The Commission notes
that a number of definitions of health care and health services that have been
enacted in the context of specific legislation concerning health care may
provide some useful reference points. For example, section 2 of the Health
Insurance Act 1994 defines health services as:
“medical,
surgical, diagnostic, nursing, dental, chiropody, chiropractic, eye therapy,
occupational therapy, physiotherapy, or speech therapy services or treatment or
services or treatment provided in connection therewith, or similar services or
treatment.”
1.40
In the specific context
of consent to treatment, section 23 of the Non-Fatal Offences Against the
Person Act 1997, discussed in detail in Chapter 2 below, refers to consent
concerning “surgical, medical or dental treatment” which section 23(2) of the
1997 Act states:
“includes any
procedure undertaken for the purposes of diagnosis and this section applies to
any procedure (including, in particular, the administration of an anaesthetic)
which is ancillary to any treatment as it applies to that treatment.”
1.41
In the Consultation
Paper, the Commission provisionally recommended a broad definition of health
care and treatment, rather than a prescriptive one which would run the risk of
excluding specific forms of care and treatment, including those that might develop
in the future. The Commission affirms this approach in this Report, in
particular because of the need to ensure that the definition is future-proofed,
and to ensure that children and young people have access to the types of health
care and treatment they need. The Commission considers that this should
include, at the least, the scope of “surgical, medical or dental treatment” as
defined in section 23 of the Non Fatal Offences Against the Person Act 1997,
but that it should also extend beyond this to encompass the examples of care
and treatment already mentioned.
1.42
The Commission
reiterates that, bearing in mind the wide range of these examples of care and
treatment, a broad definition of health care and medical treatment should be used,
encompassing diagnosis and treatment. The word “treatment” in this context
would include invasive exploratory acts carried out for the purposes of
diagnosis. The definition would include medical, surgical, nursing,
pharmaceutical, dental and mental health services.
1.43
Health care and
treatment may be provided by a range of health care professionals. This can
include dentists, doctors and nurses, as well as the wider health and social
care services such as dieticians, occupational therapists, physiotherapists,
podiatrists, radiographers, social workers and social care workers. These
professions are regulated under the Health and Social Care Professionals Act
2005.
1.44
The definition of
health care should also include aspects which are preventative, such as health
promotion and the provision of advice, information and counselling. It is also
without prejudice to specific areas of health care already regulated by, for
example, the Control of Clinical Trials Act 1987.
1.45
As stated in the
Consultation Paper, the Commission does not seek to differentiate between
physical and mental health on the issues of capacity and consent.[44]
The definition of health care would therefore include psychiatric treatment and
related mental health treatments.
1.46
Bearing in mind the
breadth of scope of the Report, the use of an inclusive, but non-exhaustive,
list may be helpful to set out clearly what is included in the broad definition
of health care and treatment. The Commission has therefore concluded, and thus
recommends, that, for the purposes of its proposed legislation on health care
and treatment concerning persons under the age of 18, health care and medical
treatment should be defined as including:
(a)
the provision of
surgical, medical, nursing, pharmaceutical, dental and mental health care or
treatment, including the prescription or supply of drugs;
(b)
any assessment or
examination for the purposes of diagnosis, including invasive exploratory acts;
(c)
any procedure
undertaken for the purposes of preventing a disease or illness;
(d)
any procedure which is ancillary
to any treatment as it applies to that treatment (including but not limited to
anaesthesia);
(e)
a course of treatment
or a group of associated treatments;
(f)
any treatment carried
out by a health and social care professional, within the meaning of the Health
and Social Care Professionals Act 2005;
(g)
health promotion, and
(h)
the provision of
advice, information and counselling in connection with any of the above.
1.47
The Commission recommends, that, for the purposes
of its proposed legislation on health care and treatment concerning persons
under the age of 18, health care and medical treatment should be defined as
including:
(a) the provision of surgical, medical, nursing, pharmaceutical, dental and
mental health care or treatment, including the prescription or supply of drugs;
(b) any assessment or examination for the purposes of diagnosis, including
invasive exploratory acts;
(c) any procedure undertaken for the purposes of preventing a disease or
illness;
(d) any procedure which is ancillary to any treatment as it applies to that
treatment (including but not limited to anaesthesia);
(e) a course of treatment or a group of associated treatments;
(f) any treatment carried out by a health and
social care professional, within the meaning of the Health and Social Care
Professionals Act 2005;
(g) health promotion, and
(h) the provision of advice, information and counselling in connection with
any of the above.
1.48
In all areas of health care and medical treatment, it is important that
the voice of the child is heard and respected. The Commission’s examination of
the treatment of the child in the healthcare setting in Ireland reveals a
considerable emphasis on protecting the child and acting in his or her best
interests. In this Report, the Commission examines this important matter in the
context of the need to recognise what can be described as the participation
rights of the child.
1.49
There is currently no statutory guidance on the treatment of children
and young people in a health care setting, although helpful non-statutory
guidance has been published on the need for health care professionals to listen
to the views of the young patient, regardless of the patient’s age or maturity.
Despite the existence of a range of different documents focusing on specific
issues such as alcohol use and mental health, there is no single document
setting out suitable standards of care for children, guidelines for treating
children in hospital, and appropriate levels of participation by children.[45]
Furthermore, the separate issues of information provision, assent to treatment
and consent to treatment are often dealt with together. As discussed below, the
Oireachtas already recognises the capacity of 16 and 17 year olds to consent to
health care treatment in section 23 of the Non Fatal Offences Against the
Person Act 1997, although this is limited to the criminal law setting. As
the Commission recommends in this Report, this should be extended to the civil
law setting. While the Commission takes a different view concerning those under
16 years of age – and many of those children may not have the capacity to
consent to health or medical treatment – they nonetheless have a right to be
informed as to health care matters that affects them and to express their
views, and perhaps their assent even if not necessarily their consent.
Thus, at least one Irish children’s hospital advises staff as follows:
“Decision-making involving the health care of children and
adolescents should include, to the greatest extent feasible, the assent of the
patient as well as the participation of the parents and the healthcare
professional. Serious consideration must be given to each patient’s developing
capacity for participating in decision-making.”[46]
1.50
Section 23(1) of the Non-Fatal
Offences Against the Person Act 1997, while it deals with consent to medical treatment by
persons of 16 and 17 years of age, does not explicitly acknowledge the right of
a child or young person to participate in decisions regarding his or her
medical treatment.
1.51
As already discussed above, a very young child’s rights will naturally
be exercised by his or her parents or guardians, but as the child grows and
matures the active participation by the child in the exercise of his or her rights
becomes more and more important. Participation by children is highly
beneficial, as it enhances their communication and development skills and
improves the relationship between children and adults. Giving
children a voice in matters that affect them does not require that they be
given the sole responsibility for all decisions. A research study carried out
in 2006 for the Office of the Minister for Children noted:
“decision-making for children is a
complex process that evolves over time and may be shared or contested with
parents and health professionals depending on the type of decision. [The study]
suggests a pragmatic approach, which recognises that children need protection
while at the same time allowing flexibility for the child’s emerging knowledge
and self-determination.”[47]
1.52
This approach, with which the Commission concurs, is echoed in some
existing legislation concerning children. Thus, where a child over 7 years of age is
considered for adoption, the Adoption Authority must give due
consideration to the wishes of the child “having regard to his or her age and
understanding;”[48] and, in
care proceedings, a court must “in so far as is practicable, give due
consideration, having regard to his age and understanding, to the wishes of the
child.” [49]
1.53
This is also reflected in relevant international Conventions on
children. For example, Article
13 of the Hague Convention on the Civil Aspects of International Child
Abduction (which was implemented by the Child Abduction and Enforcement of
Custody Orders Act 1991) states that the designated national authority (in
Ireland, the High Court) may refuse to order the return of an abducted child if
the child objects and has attained “an age and degree of maturity at which it
is appropriate to take account of his views.”
1.54
Similarly, Article
12(1) of the UN 1989 Convention on the Rights of the Child (UNCRC) states:
“States Parties shall assure to the
child who is capable of forming his or her own views the right to express those
views freely in all matters affecting the child, the views of the child being
given due weight in accordance with the age and maturity of the child.” [50]
1.55
The UN Committee on the Rights of the Child, in commenting on the right
of the child to be heard stated:
“The realisation of the provisions of
the [UNCRC] requires respect for the child’s right to express his or her views
and to participate in promoting the healthy development and well-being of
children. This applies to individual health-care decisions, as well as to
children’s involvement in the development of health policy and services.”[51]
1.56
This is also consistent with the Commission’s general recommendation in
its 2010 Report on Legal Aspects of Family Relationships[52] that the
voice of the child be taken into account in circumstances which concern him or
her.
1.57
In this context, the Commission agrees with the sentiment expressed in
the Government’s 2000 National Children’s Strategy:
“It is important that giving children
a voice is not interpreted as a passing responsibility for decisions and their
consequences to children. The intention is to ensure that in achieving a
decision which is in the best interests of the child, the child should have an
active part and know that his or her views are respected.”[53]
1.58
It is evident that, in this respect, it is necessary to ensure that the
voice of the young patient is heard in the healthcare setting, to enable
children and young people to grow and mature, reaching a point where the
individual who has capacity can participate in and make decisions about his or
her own healthcare and treatment. The Commission therefore recommends that when
treating children, health care professionals must give children an opportunity
to express their views and to give these views due weight, in accordance with
the child’s age and maturity.
1.59
The Commission recommends that, when treating children, health care
professionals must give children an opportunity to express their views and to
give these views due weight, in accordance with the child’s age and maturity.
1.60
Related to the right of the child to have his or her voice heard in the
health care context is the right of the child to be heard in a confidential
setting. The importance of confidentiality as an
aspect of the healthcare provider-patient relationship is clear and should not
be limited by age. The importance placed on confidentiality by young people is
consistently recognised in research and was echoed during the Commission’s
consultation with young people in 2009 in advance of the Consultation Paper.
The Commission accepts that, regardless of the age at which young people should
be legally capable of consenting independently to medical treatment, there is a
need to respect confidentiality.
1.61
Arising from the Commission’s consultation, it appears that
confidentiality is a particularly important issue for young people in the
context of general health concerns and anxieties which they may discuss with a
general practitioner. It is important to note that young people often visit their
local GP or healthcare professional simply for advice or reassurance,
particularly in relation to personal concerns about puberty and development. In
such cases there is often no need for prescribed medical treatment, and the
patient is satisfied by the provision of general information and guidance.
1.62
In this context, the Medical Council’s 2009 Guide to Ethical Conduct
and Behaviour states that confidentiality is a fundamental principle of
medical ethics, central to the trust between patients and doctors and that
patients are entitled to expect that information held about them will be held
in confidence, save in certain limited circumstances. [54]
1.63
In relation to children and young people, the 2009 Guide states:
“When treating children and young people, you should remember
your duties of confidentiality... subject to parental rights of access to
medical records which may arise by law. You should tell these young patients
that you cannot give an absolute guarantee of confidentiality.”
1.64
As the Medical Council’s 2009 Guide correctly notes,[55]
confidentiality can never be absolutely guaranteed to any patient (of whatever
age), but health care professionals are aware that a general duty of
confidentiality is owed to all patients, including those under 18 years of age.
As also mentioned in the Medical Council’s 2009 Guide, legislation such
as the Freedom of Information Act 1997 (Section 28(6)) Regulations 1999,[56]
made under the Freedom of Information Act 1997, prescribe the classes of
individuals whose records may be made available to parents and guardians.
Regulation 3(1) of the 1999 Regulations states that access to personal
information “shall” be granted where the requester is a parent or a guardian of
the individual to whom the record relates and where the individual is under 18
years of age. Regulation 3(1) also states that access to the personal
information of a minor shall be granted where it would, having regard to all of
the circumstances, and to any guidelines drawn up and published by the
Minister, be “in the patient’s best interests.”
1.65
The application of the 1999 Regulations arose in McK v Information
Commissioner.[57] In this
case, a father (who had separated from his wife some years before) had visited
his 12 year old daughter in hospital, and was told that she had been admitted
for an unspecified viral condition. He then applied under the 1999 Regulations
for more detailed information concerning his daughter’s admission, but this was
refused by the hospital and, on appeal, the Information Commissioner upheld the
refusal. The High Court and, on further appeal, the Supreme Court decided that the Information
Commissioner should have approached the request for information by
acknowledging that a parent was, in general, entitled under the 1999
Regulations to the information. The Supreme Court unanimously held that this
arose by virtue of the central position of the parent under Articles 41 and 42
of the Constitution and the consequent presumption that access by a parent to
health information concerning their child would be in the child’s best
interests. This presumption should have been applied by the Information
Commissioner before considering any evidence which could rebut that
entitlement.
1.66
The Supreme Court added
an important caveat to this because, by the time the Court heard the case,
which was 6 years after the hospital admission at issue, the daughter was 17½
years of age. In this respect, Denham J (who delivered the Court’s judgment)
stated that the Information Commissioner would have to reconsider the
application in light of the specific circumstances of the case “especially the
age of the minor, nearly 18 years of age, whose views now are very relevant.”[58]
In light of this analysis by the Supreme Court, the Information Commissioner
reconsidered the matter.[59] She accepted
that the father had a presumptive entitlement to the information, and she then
heard evidence from his daughter. The Commissioner had regard to her age and to
her maturity, as well as the cogent reasons she advanced for not disclosing the
information sought by her father.[60] In this
context, the Information Commissioner also referred to section 23 of the Non-Fatal
Offences Against the Person Act 1997 as indicating a recognition by the
Oireachtas that minors aged 16 have the capacity to determine what is in their
best interests in the context of medical treatment. The Information
Commissioner held that there was sufficient evidence that disclosure of the
minor’s medical records to her father would not serve her best interests, and
that this rebutted the presumption of parental entitlement to a child’s
personal information. The Information Commissioner also stated that, taking
into account that the daughter’s welfare was paramount, to grant her father
access to her personal medical records would, as a matter of probability, cause
her damage, both educationally and emotionally.
1.67
In light of this
discussion, the Commission accepts that a combination of the relevant
provisions of the Medical Council’s 2009 Guide to Ethical Conduct and
Behaviour Guide and of the
approach taken in the McK case provide useful reference points in the
application of the principle of confidentiality to a person under 18. In that
respect, the Commission has concluded, and recommends, that when
treating persons under 18, health care professionals must ensure respect for
confidentiality, subject to any specific statutory obligations to disclose
medical records. The Commission also recommends that this confidentiality must
also have regard to the rights of parents and guardians to access to relevant
health information, and that this information should be given where it would, having
regard to all of the circumstances, be in the best interests of the person
under 18 and to the general principles already set out in this Report, above.
1.68
The Commission
recommends that when treating persons under 18, health care professionals
must ensure respect for confidentiality, subject to any specific statutory
obligations to disclose medical records. The Commission further recommends that
this confidentiality must also have regard to the rights of parents and
guardians to access to relevant health information, and that this information
should be given where it would, having regard to all of the circumstances and
to the general principles already set out in this Report, be in the best
interests of the person under 18.
2.01
In this Chapter the
Commission discusses the detailed aspects of consent to, and refusal of,
healthcare treatment by individuals under the age of 18, having regard to the
general principles set out in Chapter 1. The Commission discusses
decision-making by young persons, that is, 16 and 17 year olds, and,
separately, minors, that is, those under the age of 16. In Part B, the
Commission discusses the current legal position in Ireland, including the
effect of section 23 of the Non-Fatal Offences Against the Person Act 1997
which provides, in the context of criminal law, that consent to medical
treatment by a 16 and 17 year old has the same status as if he or she was an 18
year old. The Commission also discusses the position in Irish case law of those
under 16, which reflects the general literature as well as legal developments
in other countries concerning mature minors. In Part C,
the Commission then discusses in detail statutory provisions and case law
concerning health care involving those under 18 in a number of countries, in
particular, England and Wales, Northern Ireland, Scotland, Canada, Australia
and New Zealand. In Part D, the Commission sets out its recommendations
concerning consent to and refusal of medical treatment for those under 18. The Commission’s
approach is that this should be as consistent as possible with the proposed
reform of the law on mental capacity for those over 18, and the Commission
therefore favours a functional test of capacity. The Commission sets out its recommendations
concerning 16 and 17 year olds, and then sets out separately its
recommendations for those under 16.
2.02
In this Part, the
Commission discusses the current legal position in Ireland concerning people
under 18 years of age, beginning with an outline of the general position. The
Commission then discusses section 23 of the Non-Fatal Offences Against the
Person Act 1997 which provides, in the context of criminal law only, that consent
to medical treatment by a 16 and 17 year old has the same status as if he or
she was an 18 year old. The Commission also discusses the need to
examine any proposals for reform in the wider context of proposals to introduce
a modern statutory framework on mental capacity and decision-making by those
over 18. The Commission’s 2006 Report on Vulnerable Adults and the Law[61] contained
a draft Scheme of a Mental Capacity Bill. The Report was based on a
presumption of capacity for those over 18 years of age and a functional test of
capacity, that is, a case-by-case test of capacity based on whether the person
understands the nature of the specific decision being made. The Commission’s
approach in the 2006 Report reflects
recent international trends in this area, including the rights-based analysis
found in the 2006 UN Convention on the Rights of Persons with
Disabilities. The Commission is conscious that the Government is committed to
publishing by the end of 2011 a Mental Capacity Bill that is consistent
with the 2006 UN Convention.[62]
2.03
Reflecting the
literature on child development discussed in Chapter 1, Irish law does not set
out a single age at which a person suddenly takes on all the rights – and
responsibilities – of a member of society. Instead, the law sometimes sets
certain ages as thresholds, where rights and responsibilities are granted to
young people as they move from childhood to adulthood, and sometimes refers to
the need to have regard to a combination of age and maturity.
2.04
Of course, the key
threshold in law between childhood and adulthood is, in general, a person’s 18th
birthday which, since the enactment of the Age of Majority Act 1985,[63]
is the date on which a person becomes an adult for many purposes of the civil
law. Reaching 18, the age of majority, thus signals the end of many protections
granted to children and young people by virtue of their young age, their
position as children or minors, and marks an important legal watershed.
2.05
Below the age of 18, a
person’s 16th birthday is also another significant juncture in the
progression, in law, from childhood to adulthood, from minority to majority
status. Traditionally, as outlined in the Consultation Paper,[64]
a 16 year old was granted a significant measure of independence on his or her
16th birthday. This remains reflected in current legislation, for
example the Protection of Young Persons (Employment) Act 1996 (many,
though not all, restrictions on employment are lifted at age 16) and the Education
(Welfare) Act 2000 (16 is the school-leaving age). These Acts both use the
age of 16 to distinguish between “children” and “young persons”, and they grant
16 year olds an increased measure of independence.
2.06
In terms of health care
and medical law, the age of 16 has also been largely accepted as the age of
consent to medical treatment in a number of countries worldwide, including
Ireland. As discussed below, section 23(1) of the Non-Fatal Offences Against
the Person Act 1997, which applies in the context of criminal
law only, states that the consent of a 16 and 17 year old to medical treatment
has the same legal status as if they were an 18 year old adult.
2.07
Under the Health
Acts 1947 to 1970, a person aged 16 years may choose his or her own doctor,
obtain a medical card, consent to an operation and apply for a disabled
person’s maintenance allowance.[65] Similarly,
Regulation 4(1) of the European Communities (Clinical Trials on Medicinal
Products for Human Use) Regulations 2004[66]
states that, for the purposes of the 2004 Regulations, “‘adult’ means a
person who has attained the age of 16 years.” The 2004 Regulations, which
supplement requirements in the Control of Clinical Trials Act 1987,
implemented Directive 2001/20/EC on good clinical practice in the conduct of
clinical trials on medicinal products for human use. The 2001 Directive makes
certain exclusions from its terms for “minors” but without defining the age
under which a person is a minor for the purposes of the Directive. This is
understandable given the diversity of opinion among EU Member States regarding
the age of majority and, thus, when a person is a minor. The Irish 2004
Regulations that implemented the 2001 Directive would appear to have drawn on
the existing Health Acts by defining an adult as a person aged 16 and
over, and may also have been influenced in this respect by the comparable UK
Regulations that implemented the 2001 Directive.[67]
Similarly, the Department of Health’s Draft Human Tissue Bill 2009,[68]
published in 2009, proposes to define a child as a person under 16 years of
age,[69]
and it appears that the proposed Health Information Bill will also take
the same approach.[70]
2.08
As noted in the
Consultation Paper, children and young people are often treated in adult
hospital wards before reaching 18 years of age, and 16 seems to be considered a
cut off point for admission to paediatric hospitals and wards.[71]
For example a 2007 report[72] revealed
that the maximum age of treatment in both the Emergency Department and
in-patient admission in one children’s hospital[73]
was 15 years of age. Another children’s hospital[74]
operated on the basis of admitting children up to 16 years of age in both the
Emergency Department and in-patient admission. A third[75]
also used the cut off point of 16 years in respect of the Emergency Department,
and the age of 14 years for in-patient admission, with flexibility up to 16
years of age. While practice varies to some degree, therefore, depending on the
hospital and the particular circumstances, the Commission notes that in
general, young people are not treated in a paediatric setting once they reach
16 years of age.
2.09
Section 23(1) of the Non-Fatal
Offences Against the Person Act 1997 provides that, in the context of
criminal law only, consent to medical treatment by a person aged 16 or 17 years
of age has the same status as if he or she was an 18 year old, of full age. It
is important to note that the 1997 Act implemented the main recommendations
made by the Commission in its 1994 Report on Non-Fatal Offences Against the
Person.[76]
In that 1994 Report, the Commission discussed the position in other countries
where the criminal law concerning offences against the person, including
assault, had been reformed.[77]
In particular, in the context of the defence of consent to a charge of assault,
the Commission recognised that many other countries had provided that the
position concerning consent to medical treatment by 16 and 17 year olds should
be clarified. The Commission emphasised in the 1994 Report the distinction
between criminal liability on the one hand and civil liability on the other
hand. The Commission noted that the capacity of 16 and 17 year olds to consent
to treatment in the context of civil liability had been addressed in
section 8 of the English Family Law Reform Act 1969, and that the
position in the UK of those under 16 had been dealt with in 1985 in the
landmark test case decision of the UK House of Lords in Gillick v West
Norfolk and Wisbech Area Health Authority.[78]
These developments on civil liability in the UK – and in other countries
since the 1980s – are discussed in detail in Part C, below. In the 1994 Report,
the Commission clearly limited its recommendations to the criminal law area:
“The Gillick decision
might or might not be followed by our Supreme Court in a civil case but in
criminal cases certainty should be imported, where possible, and we recommend
that legislation be introduced similar to section 8 of the English Family
Law Reform Act 1969.”[79]
2.10
It is clear, therefore, that the Commission’s intention was to confine
its recommendation to the criminal law sphere. As the Commission noted, it was
unclear in 1994 whether the approach in Gillick might or might not be
followed in Ireland. Since then, as already noted in this Report, the Supreme
Court has decided in McK v Information Commissioner[80] that, in a health care setting, the views of a young person
who is 17 “are very relevant”
and may sometimes override a parent’s presumed entitlement to be able to access
health care information concerning their children.[81]
Similarly, in D v Brennan and Ors,[82]
which is discussed below, the High Court has acknowledged that a 16 or 17
year old can, in certain circumstances, give a valid consent in the health care
setting without the need for parental involvement. These decisions indicate
that the general approach in the Gillick case, which in turn reflects
the literature on child development and international instruments discussed in
Chapter 1, above, as well as similar approaches in the law of the countries -
discussed below, has, since 1994, been applied in Ireland.
2.11
Because the 1994 Report recommended that legislation similar to section
8 of the English Family Law Reform Act 1969 be introduced to deal with
consent in the criminal law setting, the Commission now turns to a comparison
between section 8 of the 1969 Act and section 23 of the Non-Fatal Against
the Person Act 1997, which implemented that recommendation. Section 8 of
the English 1969 Act (which as the Commission discusses in Part C, below, was
replicated in Northern Ireland in section 4 of the Age of Majority Act
(Northern Ireland) 1969) states:
“(1) 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.
(2) In this section “surgical,
medical or dental treatment” includes any procedure undertaken for the purposes
of diagnosis, and this section applies to any procedure (including, in
particular, the administration of an anaesthetic) which is ancillary to any
treatment as it applies to that treatment.
(3) Nothing in this section shall be
construed as making ineffective any consent which would have been effective if
this section had not been enacted.”
2.12
The text of section 23 of the 1997 Act was clearly modelled directly on
section 8 of the English 1969 Act (and section 4 of the Northern Ireland 1969
Act). Section 23 of the 1997
Act states:
“(1) The
consent of a minor who has attained the age of 16 years to any surgical,
medical or dental treatment which, in the absence of consent, would constitute
a trespass to his or her person, shall be as effective as it would be if he or
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 any
consent for it from his or her parent or guardian.
(2) In this
section “surgical, medical or dental treatment” includes any procedure
undertaken for the purposes of diagnosis, and this section applies to any
procedure (including, in particular, the administration of an anaesthetic)
which is ancillary to any treatment as it applies to that treatment.
(3) Nothing in
this section shall be construed as making ineffective any consent which would
have been effective if this section had not been enacted.”
2.13
The Non-Fatal
Offences Against the Person Act 1997 deals with criminal liability only
and, as recommended by the Commission in its 1994 Report, section 23 of the
1997 Act provides a defence to a charge of assault where a health care
professional provides treatment to a 16 and 17 year old. Given that the origins
of section 23 of the 1997 Act can be traced to the Commission’s 1994 Report, it
is unlikely that section 23 could be interpreted as applying in the civil law
context.
2.14
As the Commission noted
in the Consultation Paper,[83] there is a
fundamental difference between, on the one hand, the limited nature of a
defence to the criminal offence of assault provided for in section 23 of the
1997 Act and, on the other, the wider acknowledgement of a minor’s entitlement
to exercise a right concerning their autonomy in terms of healthcare.
2.15
Section 23(1) of the 1997 Act does not contain any reference to persons
under 16 years of age, which might be thought to create doubts as to whether
the section is: (a) facilitative, in that it provides for consent by a person
aged 16 or 17, without necessarily preventing persons under 16 from giving
consent; or (b) preventative, in that persons under 16 are prevented from
giving consent.[84] This was
also addressed in the Commission’s 1994 Report. As already noted, section 23(3)
of the 1997 Act, which is identical in wording to section 8(3) of the English
1969 Act (and section 4(3) of the Northern Irish 1969 Act), states:
“Nothing in this section shall be construed as making
ineffective any consent which would have been effective if this section had not
been enacted.”[85]
2.16
The Commission, commenting on section 8(3) of the English 1969 Act in
its 1994 Report on Non-Fatal Offences Against the Person, suggested that
this saver recognised existing common law legitimate consents by persons under
16 years of age.[86] In this
respect, the 1969 decision of the English Court of Appeal in Hewer v Bryant,[87]
discussed below, clearly supports this view that the common law recognised the
independent decision-making capacity of persons under 16. To that extent, the
decision in Gillick in 1985 built on this general legal position.
2.17
Given that section 23(3) of the 1997 Act follows precisely the wording
of the English 1969 Act (and Northern Ireland 1969 Act), the Commission
considers that the Irish courts would interpret section 23(3) as a saver
intended to incorporate and preserve the common law on the capacity of persons
under 16.[88] Nonetheless,
and bearing in mind that section 23 of the 1997 Act is a criminal law statute
only, the Commission considers that the law should not remain in a state of
doubt on such an important matter but should be clarified in terms of civil law
liability. This would be of benefit not only to persons under 18 but also their
parents and guardians and health care practitioners.
2.18
The right to refuse
treatment is generally viewed as the natural corollary of the right to consent
to treatment and therefore it is arguable that, under the 1997 Act, since a 16
or 17 year old can consent to medical treatment, he or she can therefore refuse
medical treatment. The wording “as effective as it would be if he or she had
attained full age” in section 23(3) of the 1997 Act is significant, because the
refusal of a person of full age is treated as a corollary of consent; therefore
the refusal of a 16 or 17 year old could also be viewed as a corollary of
consent.
2.19
Much of the case law in
Ireland in relation to refusal of treatment has centred on decisions concerning
adult patients and the issue of life-sustaining treatment. As already noted,
however, the Supreme Court in McK v Information Commissioner[89] dealt with
the position of a 16/17 year old in a health care setting, and, in D v
Brennan and Ors,[90] discussed
below, the High Court also dealt with this issue. The Commission first
discusses the Irish case law on refusal concerning adults and then discusses
the cases concerning those under 18.
2.20
The decision of the
Supreme Court in Re a Ward of Court (No.2)[91]
and of the High Court case Fitzpatrick v FK (No.2)[92]
dealt with the refusal of medical treatment involving adults. Both cases
emphasise the importance of respect for autonomy, dignity and bodily integrity
in the context of refusal of medical treatment. In Re a Ward of Court (No.2)[93]
the Supreme Court clearly recognised a constitutional right to personal
autonomy, stating that a competent person of full age and capacity has the
right to refuse medical treatment, even though the consequence of the refusal
may lead to death. One of the Supreme Court judges, O’Flaherty J stated:
“consent to
medical treatment is required in the case of a 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.”[94]
2.21
In Fitzpatrick v FK,[95]
the High Court ordered that a 23 year old Congolese woman (Ms K), who had
refused a blood transfusion on the basis that this was contrary to her
religious views as a Jehovah’s Witness, should be given the transfusion in
order to save her life. In Fitzpatrick v FK (No 2)[96]
Laffoy J concluded, after a full hearing, that the transfusion had
been lawfully given.
2.22
The case of
Fitzpatrick v FK (No.2),[97]
which is discussed in detail in the Consultation Paper,[98]
provides a comprehensive analysis of the test to be applied to assess a
person’s capacity in the context of refusal of medical treatment. In brief,
Laffoy J held that the test of capacity employed to assess such a decision is a
functional one which is time and issue specific. In this respect, Laffoy J
approved the following test set out in an English case:
“whether the
patient’s cognitive ability has been impaired to the extent that he or she does
not sufficiently understand the nature, purpose and effect of the proffered
treatment and the consequences of accepting or rejecting it in the context of
the choices available (including any alternative treatment) at the time the
decision is made.”[99]
2.23
The decision in Fitzpatrick
v FK (No.2) turned on whether Ms K’s capacity was impaired to the extent
that she could no longer give an informed consent or refusal. Laffoy J
concluded that Ms K’s capacity was impaired to the extent that she did not have
the ability to accept a blood transfusion. Therefore, the administration of the
transfusion was not an unlawful act and did not constitute a breach of her
rights under the Constitution.
2.24
This functional,
decision-specific, test of mental capacity is consistent with the Commission’s
key recommendation in its 2006 Report on Vulnerable Adults and the Law[100]
that a functional test of mental capacity should be enacted into law, which
would reflect the rights-based analysis found in the 2006 UN Convention
on the Rights of Persons with Disabilities. The functional test was included in the draft Scheme of a Mental
Capacity Bill appended to the Commission’s 2006 Report and was also
included in the Government’s Scheme of a Mental Capacity Bill 2008,
which is likely to form the basis for a Mental Capacity Bill, expected
to be published in 2011.[101]
2.25
Laffoy J also explained
that the assessment of capacity must have regard to:
“the gravity of
the decision, in terms of the consequences which are likely to ensue from the
acceptance or rejection of the proffered treatment.”
2.26
The reference by Laffoy
J to the “gravity of the decision” has also featured in the case law on the
capacity of persons under the age of 18. For example, in North
Western Health Board v HW and CW[102] the Supreme Court held that the primacy of parental decision-making for
their children will only be overturned if the decision would threaten the life
or urgent health needs of the very young child. A similar approach was taken by
the Supreme Court of Canada in AC v Manitoba (Director of Child and
Family Services).[103]
2.27
As already discussed in this Report in the context of the relevant
general principles,[104] the position concerning the rights of children under the
Constitution of Ireland was summarised in this way by Walsh J in the Supreme
Court decision G v An Bord Uchtála:[105]
“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 that right are independent of any
right of the parent as such.”
2.28
As the Commission has also already noted, in the context of very young children a
decision by parents or guardians concerning their children will be upheld even
if this is in conflict with the views of professional persons. For example, in
North Western Health Board v HW and CW[106] the Supreme Court upheld the refusal of parents to allow doctors to
carry out the “heel prick” PKU blood test on their baby son, even though the
Court acknowledged that most parents are happy to consent to this test. The
Court held that the primacy of parental decision-making under Articles 41 and
42 of the Constitution (which the Commission has already noted reflect international
human rights standards) will only be overturned (using the courts inherent
jurisdiction to protect vulnerable persons, a post-constitutional version of
the parens patriae jurisdiction) if the decision would threaten the life
or urgent health needs of the very young child. In support of this analysis, Keane
CJ’s judgment in the North
Western Health Board case referred to many court decisions from other
states concerning the respective roles, responsibilities and rights of parents
and young children. Keane CJ also referred to an English case, Re E (A
Minor),[107] which had involved a 15 year old boy, who was also a
Jehovah’s Witness and who had refused a blood transfusion. Keane CJ pointed out
that the judge in the case, Ward J, had ordered the blood transfusion to
proceed on the ground that, among other matters, the 15 year old in question
“was not of sufficient understanding and maturity to give a full and informed
consent.”[108]
2.29
The North
Western Health Board case involved a baby boy and the reference to the
English case of a 15 year old was clearly not central to the Supreme Court’s
analysis, but it indicates an awareness that the case of a 15 year old requires
different analysis by comparison with that of a baby boy. Indeed, when the
issue of the capacity of a young person at the age spectrum approaching adulthood arose directly in McK
v Information Commissioner,[109]
the Supreme Court held that the views of a young person who is 17 “are very relevant”[110]
and may sometimes override a parent’s presumed entitlement to be able to access
health care information concerning their children.
2.30
The authority and responsibility of parents concerning their children
can, therefore, be analysed using a sliding scale. Their authority and
responsibility is at the high end of this sliding scale when the children are
very young; and, as the child reaches their teenage years and approaches 18, it
gradually moves to the lower end of the scale. In the 1969 English case Hewer
v Bryant,[111] Lord Denning
MR summarised this 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.”
2.31
In D v Brennan and
Ors,[112] the
High Court used the same sliding scale approach evident in the Supreme Court
decisions in North Western Health Board v HW and CW[113] and McK v Information
Commissioner.[114] Against
the backdrop of a difficult and complex factual background, the Court discussed the decision-making
capacity of children, in particular those who are almost 18, in a health care
setting. In the D case, the applicant was 16 years of age when she
became pregnant. A scan revealed that her unborn baby had the fatal brain condition anencephaly
(in effect, the absence of any brain cavity development), indicating that the
baby could not survive. Having considered this information, the applicant decided
that she should travel to England to terminate the pregnancy.
2.32
Independently of her
pregnancy (arising from a domestic incident between the applicant and her
mother, the details of which were not revealed), the Health Service Executive
(HSE) obtained an interim care order in the District Court under the Child
Care Act 1991, so that the applicant was then under the care of the HSE. In
discussions between the applicant and her designated HSE social worker, the
applicant reiterated her wish to travel to England for a termination. It
appears that the HSE indicated that she should be prohibited from travelling to
England for this purpose, but it also appeared that no decision had been made
by the HSE as to whether this was consistent with the applicant’s “welfare” or
whether the views of the applicant had been taken into account, as required by
section 3 of the 1991 Act.
2.33
The applicant then
applied to the High Court for a declaration that she had a right to travel to
England for a termination and that any order prohibiting her from travelling
would be invalid. The HSE initially opposed the application, but during the
hearing in the High Court (in which the judge dealing with the case, McKechnie
J, criticised the HSE for having failed to make a “welfare” determination under
the 1991 Act) it was granted an adjournment in order to apply to the District
Court to allow that court to determine whether an order should be made under
the 1991 Act permitting the applicant to travel to England. Although all
parties indicated to the District Court that the court was not prohibited from
making such an order, it refused to make such an order. The HSE then applied to
the High Court to have that refusal quashed, which the High Court heard together
with the applicant’s case.
2.34
McKechnie J emphasised
that the case did not involve any substantive issue concerning abortion, and
was limited to the question of whether the applicant could lawfully be
prohibited from travelling abroad. The applicant had turned 17 by the time of
the court hearing, but as she remained a minor the Court had to determine her
capacity to make this decision and whether her decision-making could operate
independently of either the HSE or her mother. The applicant submitted that the
HSE was, at most, acting in loco parentis under the 1991 Act and had no
greater rights than her mother. She also submitted that her mother’s
constitutional right as a parent would have to yield to the applicant’s
constitutional right to travel, and that the HSE was not in any greater
position than her mother would have been.[115]
The case therefore involved submissions on the constitutional rights of
children and their connection with, and independence from, the rights of
parents.
2.35
As already discussed,
some laws such as section 23 of the Non-Fatal Offences Against the Person
Act 1997 set a specific age at which a person is deemed to have capacity,
whereas others, including the Child Care Act 1991 refer to tests based
on maturity. Bearing in mind that, in the D case, the issue was
primarily whether the applicant had the maturity to decide whether to travel to
England, the applicant submitted that the case fell within the parameters of
the Supreme Court’s analysis in McK v Information Commissioner[116]
that the views of a young person who is nearly 18 “are very relevant,”[117]
and that the “applicant is 17 years and is at a time when her constitutional
rights are waxing to full maturity and those of a parent waning accordingly.”[118]
This clearly reflected the “sliding scale” approach discussed above.
2.36
In the D case,
both the applicant and her mother were actually in agreement that she should
travel to England for a termination, but McKechnie J had to consider whether,
given that the HSE was in loco parentis under the Child Care Act 1991,
the HSE (or the District Court exercising its powers under the 1991 Act) could
override the expressed wishes of the applicant. In this respect, McKechnie J
stated:
“It is imperative to recognise that children are born with
rights and those rights continue right throughout childhood into teenage years,
and become unaffected in their entirety by the parental relationship on
reaching majority. These
rights, which originally must be exercised on behalf of infants, usually by
their parents, remain the rights of the children; and, commensurate with the
progressive development and maturity of such a child, become capable of partial
and, thereafter, full expression as adulthood arrives.”
2.37
McKechnie J commented
that the applicant had displayed good moral judgement because she could have
travelled to England without saying anything to the HSE, or could have
pretended that she was feeling suicidal, which would have brought her within
the parameters of a lawful termination in accordance with the Supreme Court
decision in Attorney General v X.[119]
Instead, she had chosen to resolve the issues involved by engaging in the
judicial review proceedings. McKechnie J concluded that the applicant had shown
“courage, integrity and maturity” throughout her ordeal in the wake of
discovering the condition of her unborn baby. On this basis, McKechnie J held
that there was no impediment to the applicant exercising her right to travel to
England and he accordingly made the declarations sought by her.
2.38
By way of briefly
summarising the case law in this area, the Commission notes that in G
v An Bord Uchtála[120] the Supreme Court affirmed that the rights of
children are “independent of any right of the parent as such.” Where a child is
very young, the Supreme Court concluded in North Western Health Board
v HW and CW[121] that these rights are, in general,
exercised on behalf of the child by his or her parents, subject to the
exceptional circumstances referred to in Article 42 of the Constitution, and
this in turn reflects the relevant international human rights instruments in
this area. Where the child is at the other end of the age spectrum and is
approaching adulthood in their teenage years, the Supreme Court has held, in McK
v Information Commissioner[122]
(and the High Court also took this approach in the D case), that the
child’s maturing capacity must be taken into account, which is of course
consistent with the analysis in the G case that the child’s rights are
independent of the parent’s rights. As already indicated, this sliding scale
approach is also consistent with the long-standing approach of the common law, exemplified in the 1969
English decision Hewer v Bryant.[123] This sliding scale approach also has the advantage that
it is in keeping with the literature on child development already discussed in
this Report as well as the development of case law and legislation in other
countries, which is discussed in Part C, below.
2.39
The decisions in the
Irish cases discussed support the general view that, as a child moves towards
18 years of age, their decision-making capacity waxes (increases) as,
correspondingly, the decision-making position of their parents gradually wanes
(decreases). In the specific context of this Report, the enactment by the
Oireachtas of section 23 of the Non-Fatal Offences Against the Person Act
1997 reflects a similar approach. In addition, a test based on maturity
broadly mirrors the capacity test for those over 18 which, as already discussed
in this Report, the Commission fully supports.
2.40
Nonetheless, the
position is not as clear as in other countries where well-developed case law –
as well as legislation that applies to both the civil and criminal law settings
– has provided a clear framework under which health care practitioners can work
with those under 18. As discussed in Part C, in England and Wales, the
enactment of the Family Law Reform Act 1969 (and, in Northern Ireland,
the equivalent Age of Majority Act (Northern Ireland) 1969) provided
clarity in the civil law setting in respect of 16 and 17 year olds. The
decision of the UK House of Lords in 1985 in Gillick v West Norfolk
and Wisbech Area Health Authority[124]
provided a degree of comparable clarity concerning those under 16, at least in
the context of contraception. The Gillick decision reflected the
then-developing concept of the “mature minor” and the Commission discusses in
Part C developments in other countries, both before and after the Gillick decision.
This has included many legislative provisions that clarify the position, as
well as other landmark court decisions, including the 2009 decision of the
Supreme Court of Canada in AC v Manitoba (Director of Child and Family
Services).[125]
2.41
Thus, while the decisions in the McK case and the D case
are at least consistent with the view that 16 and 17 year olds often have the
capacity to make significant health care decisions, and that the concept of a
“mature minor” is also consistent with this approach, there is no definitive
legal framework that clarifies the respective rights and responsibilities of
those under 18, their parents and guardians, still less the health care
professional who come in contact with them.
2.42
The Commission is especially conscious in this respect that clarity is
needed in the healthcare setting in respect of the legal capacity of 16 and 17
year olds (in particular, as far as civil liability is concerned) and of those
under 16. The ambiguity surrounding this area has created practical problems
for health care practitioners. A 2005 training manual of the Irish College of
General Practitioners highlights the present difficulties:
“The legal situation regarding consent and minors remains
confused and there is no indication that legislation addressing the issue is
imminent. However doctors, and GPs in particular, encounter this issue in
clinical practice on a regular if not daily basis.”
2.43
It is not surprising, therefore, that many of the submissions received
by the Commission on the Consultation Paper stated that reform of the law on
children and medical treatment would be welcome and is overdue.
2.44
In the absence of a clear legislative framework, health care
practitioners have referred to section 23 of the Non-Fatal Offences Against
the Person Act 1997 to support their approach to consent from 16 and 17
year olds. The confusing nature of the present legal situation is brought
sharply into focus when one considers the legal position of a person under 16
years of age who is a parent. It is largely accepted that a young mother can
consent to medical treatment on behalf of her child yet her legal capacity to
make decisions in relation to her own medical treatment is unclear.[126]
The Commission received a number of submissions debating this issue, and
highlighting the difficulties faced by healthcare providers, when treating a
child whose mother is 14 or 15 years of age. These situations are often
complex, involving a sick child, a young mother,[127]
a grandparent and a healthcare practitioner who must adhere to the requirements
of an uncertain law while also acting in the best interests of the child. One
of the points raised by healthcare providers is that the mother of the child
and the grandparent of the child may not have a very good relationship, or
perhaps the grandparent may not be willing or available to commit to acting as
a quasi-guardian for his or her grandchild.
2.45
In this context, and in
the absence of a general statutory framework, the Medical Council’s 2009 Guide
to Professional Conduct and Ethics[128]
provides useful guidance as to the approach of doctors when dealing with
persons under 18. The relevant provisions in the 2009 Guide are:
“43 Children and minors
43.1 Children and young people should be involved as much as possible in
discussions about their healthcare. When you are talking to a child or young
person, it is important to give them information in an age-appropriate manner,
listen to their views and treat them with respect.
43.2 Patients aged 16 years and over are entitled by law to give their
own consent to surgical, medical or dental treatment [the 2009 Guide refers
in a footnote to section 23 of the Non-Fatal Offences Against the Person Act
1997]. This entitlement does not apply to other areas such as organ or
tissue donation or participation in medical research.
43.3 A refusal of treatment by a patient between 16 and 18 years, which
is against medical advice and parental wishes, is of uncertain legal validity.
In this event, you should consider seeking legal advice before acting on such a
decision.
43.4 Where the patient is under the age of 16 years, it is usual that
the parents will be asked to give their consent to medical treatment on the
patient’s behalf.
43.5 In exceptional circumstances, a patient under 16 might seek to make
a healthcare decision on their own without the knowledge or consent of their
parents. In such cases you should encourage the patient to involve their
parents in the decision, bearing in mind your paramount responsibility to act
in the patient’s best interests.
43.6 When treating children and young people, you should remember your
duties of confidentiality as provided in paragraph 24 [of the 2009 Guide],
subject to parental rights of access to medical records which may arise by law
[the 2009 Guide refers in a footnote to the Freedom of Information
Act 1997 (Section 28(6)) Regulations 1999]. You should tell these young
patients that you cannot give an absolute guarantee of confidentiality.”
2.46
The Commission notes the following aspects of the Medical Council’s 2009
Guide:
· As to 16 and
17 year olds, paragraph 43.2 of the 2009 Guide is consistent with the
existing legislative provisions in this area, notably section 23 of the Non-Fatal Offences Against the
Person Act 1997. While the Commission has already pointed out that
the 1997 Act is limited to the criminal law only, the 2009 Guide correctly
refers to the 1997 Act for the purpose of providing guidance to doctors.
· Paragraph 43.2
of the 2009 Guide also correctly notes, as has the Commission in this
Report, that the definition of medical treatment in the 1997 Act is limited in
scope. The Commission has recommended in this Report that the scope of health
care and treatment should be expanded, without prejudice to other specific
provisions such as the legislation dealing with clinical trials.
· It is clear
that the Medical Council felt constrained by the fact that section 23 of the
1997 Act refers to consent to treatment only, so that paragraph 43.3 of the
2009 Guide takes a more cautious approach to refusal of treatment. As
discussed above, the Commission has concluded that it is appropriate to view
capacity to refuse treatment as a corollary to capacity to consent to
treatment, and paragraph 43.3 of the 2009 Guide underlines the need for
a clearer legislative framework in this area.
· As to those
under 16, paragraphs 43.4 and 43.5 of the 2009 Guide also reflect in
general terms the current law as set out in the Irish decisions already
referred to, such as the G, McK and D cases, which in turn
reflect the provisions on the family in Article 41 of the Constitution and in
the relevant international standards already discussed in this Report. Thus,
the 2009 Guide correctly identifies that the “usual” position is that
parents should be asked for their consent, but that in “exceptional
circumstances” the doctor would “encourage” the under 16 year old to involve
their parents, bearing in mind
the doctor’s “paramount responsibility to act in the patient’s best interests.”
While this general guidance is useful, the Commission notes that it does not
provide specific guidance on the nature of the “best interests” test. Nor does
it refer to a maturity test, which as the Commission has already noted is
already part of Irish law (through both the case law and legislation already
noted in this Report).
· Paragraph 43.6
of the 2009 Guide refers to the competing interests of patient
confidentiality and of access by parents to health information concerning their
children; and the 2009 Guide refers in this respect in a footnote to the Freedom of Information
Act 1997 (Section 28(6)) Regulations 1999. The Commission has already noted
in this Report that the 1999 Regulations were discussed by the Supreme Court in
the McK case, in which the Court concluded that a maturity test
could displace the usual presumption in favour of parental access. The
Commission considers that a general legislative framework would also bring
greater clarity and specificity to this aspect of health care treatment for
those under 18.
2.47
The Commission acknowledges that the Medical Council’s 2009 Guide has
provided as much general guidance to doctors as is feasible in the absence of
any general legislative framework in Ireland. Because the 2009 Guide is
necessarily limited to doctors, and in the absence of any general legal
framework or comprehensive guidance, a number of hospitals in Ireland have
developed practice guidelines for all health professionals. Guidelines
developed by one of the leading children’s hospital in Dublin state that, in
the light of current legal uncertainty, it is prudent practice to attempt to
obtain the consent of an appropriate next of kin who is competent to consent
(where the consent is in the best interests of the child), including all
parties in the consent process. These guidelines state that it is also
important to ensure that, if the next of kin gives or give consent, their
signature is recorded and that such situations are recorded in detail in the
patient’s medical records. In cases of doubt or uncertainty these guidelines
recommend, in line with the Medical Council’s 2009 Guide, that
healthcare providers seek further legal advice. From the Commission’s point of
view, it seems highly impractical and burdensome for healthcare providers to
obtain the consent of a child’s grandparent, and possibly seek legal advice,
before they can feel legally secure in treating the child.
2.48
A number of submissions received by the Commission drew attention to
other areas of difficulty and confusion in respect of capacity and consent for
the medical care of a person under 16 years of age. For example, issues often
arise over who may consent to medical treatment for a foster child,[129] or a child who is in care. In relation to attempts to obtain
consent from parents or guardians when a child or young person is in foster
care or in the care of the Health Service Executive under the Child Care Act
1991, the situation creates practical problems and delay in obtaining
consent for necessary treatment. This is particularly the case where the child
or young person in question does not have a good relationship with his or her
parents or guardians, or in situations where the parent or guardian is hostile
and uncooperative.
2.49
In connection specifically with children under 16 years of age, health
care practitioners have, in the absence of any clear legislative
framework and in an attempt to implement the general approach in the Medical
Council’s 2009 Guide, adopted the “mature minor” concept developed in other countries, which the
Commission discusses below. In a 2009 study of Irish GPs,[130]
some doctors viewed as persuasive the “Fraser Guidelines”, the criteria set out
by Lord Fraser in the 1985 UK House of Lords decision in Gillick v
West Norfolk and Wisbech Area Health Authority,[131] discussed
below. Indeed, the approach in the Irish cases discussed, such as the McK case
and the D case, are consistent with the “mature minor” concept in Gillick
and in the comparable case law and legislation in other countries discussed
below. Nonetheless, it is not perhaps surprising that the 2009 study
found that 53.8% of the surveyed GPs felt “legally exposed” when consulted by
girls under 16 seeking contraception. The survey also found that 33.9% of
parents felt that a GP who prescribed to a girl under 16 could be pursued
legally by her parents, though in this respect the Commission notes that Irish
case law – and the proviso in section 23(3) of the Non-Fatal Offences
Against the Person Act 1997 – suggests that the consent of some
persons under 16 is valid and that some element of parental responsibility may
be “waning” even at that age.
2.50
The 2009 study of
actual prescribing by GPs indicates that 82% had prescribed to a girl under 16.[132]
Of these, 38% said it was always with parental consent, 59% said they sometimes
had parental consent and 3% never obtained parental consent. Those involved in
the study were also asked whether they considered such prescribing was lawful.
In response, 60.2% of parents and 38.5% of GPs considered that it was not
legal, while 14% of parents and 31.6% of GPs thought it was legal. The
Commission notes that this view appears to confuse the age of consent in the
context of the criminal law, which is 17, with the lawfulness of providing
contraceptive treatment; these are two distinct legal matters.
2.51
The 2009 study also
indicated that existing practice may focus largely on age rather than a
maturity test. This is so even though, as already noted, some legislation in
Ireland as well as decisions such as the McK case and the D case
have already applied such a maturity test, and that this approach also reflects
relevant international standards concerning children. The 2009 study also
indicated that all those involved in the process would welcome clear guidance
on the matter, and this reinforces the Commission’s approach in this project.
Indeed, the necessarily general nature of the discussion in the Medical
Council’s 2009 Guide also supports the need for a clearer legislative
framework.
2.52
The Commission now turns to examine the development of the approach in
other countries concerning consent to, and refusal of, health care treatment by
persons under 18. The Commission examines the relevant developments in England and Wales, Northern Ireland, Scotland, Canada, Australia and New
Zealand. Some of these countries have enacted clear legislative rules on
16 and 17 years olds which clarify that they have capacity to consent to and
refuse medical treatment. Indeed, in Scotland the general age of majority has
been reduced from 18 to 16, and this includes of course the right to consent
to, and refuse, treatment. As to those under 16, variations on a “mature minor”
rule have been developed, and the issue has often been incorporated into
suitable legislative frameworks supported by detailed guidance. In parallel
with legislation, “mature minor” tests have been developed through landmark
test cases, such as the 1985 decision of the UK House of Lords in Gillick v West Norfolk and
Wisbech Health Authority[133] and
the 2009 decision of the Supreme Court of Canada in AC v Manitoba (Director
of Child and Family Services).[134]
2.53
As already mentioned, since the enactment of section 8 of the English Family
Law Reform Act 1969, English law has clearly provided that 16 and 17 year
olds have capacity to consent to medical treatment. The 1969 Act implemented
the key recommendations in the 1967 Report of the Committee on the Age of
Majority, the Latey Report,[135]
which had recommended that the general age of majority be reduced from 21 to
18, and that 16 and 17 year olds should be deemed to have capacity to consent
to, and to refuse, medical treatment. As also already noted, while section 8 of
the English 1969 Act formed the basis for the almost identical text in section
23 of the Non-Fatal
Offences Against the Person Act 1997, the 1969 Act dealt with the issue of civil
and criminal liability whereas the Irish 1997 Act deals with criminal liability
only.
2.54
The position of those
just under 18 years of age had also been discussed in 1969 by the English Court
of Appeal in Hewer v Bryant,[136]
a case decided just one month before the 1969 Act was enacted[137]
and in which one of the judges, Lord Denning MR, referred with approval to the
general approach taken in the 1967 Latey Report, on which the 1969 Act was
based. The Hewer case concerned the statutory time limit for bringing a
personal injuries action. When the plaintiff was 15 years old, he was injured
in a car driven by the defendant while on a farm training vocational course.
Because he was a minor at the time, any claim would have to have been taken on
his behalf by an adult such as his father; but his father decided not to do so.[138].
Under the relevant provisions of the UK Limitation Act 1939, there was a
general three year time limit for bringing the claim, but this only applied to
adults. For those under the age of majority, which was 21 at the time, the
English Limitation Act 1939 regarded such persons as being under an “age
disability” and so the general three year time limit only began to run when the
plaintiff reached 21. Three weeks after his 21st birthday, the
plaintiff began a claim against the defendant, which was over 5 years after the
car crash. The defendant argued that the claim was statute-barred under the
1939 Act because of another provision in the 1939 Act which stated that the
normal three year limitation period applied if the person under 21 was, at the
time of the accident, “in the custody of a parent.” If this provision applied,
the plaintiff’s claim would have been statute barred.
2.55
The English Court of
Appeal had to decide whether “custody” as used in the UK Limitation Act 1939
was: (a) a legal concept meaning that all minors, at that time those under
21, remained completely under the custody and control of their parents until
they reached the then age of majority at 21; or (b) a factual concept, so that
a person such as the plaintiff was only in the custody of their parents if the
parents were actually exercising “care and control” over him. The Court decided
that the 1939 Act was intended to mean the factual concept, that is, actual
care and control. In this respect, the evidence indicated that the plaintiff
was not in his father’s “custody” within the meaning of the 1939 Act, because
when he had been attending the farm training vocational course he paid his own
way while on the course, including paying his own bus and train fares home on
his occasional free weekends. On that basis, the Court concluded that the
plaintiff’s claim was not statute-barred, and the case against the defendant
was allowed to proceed.
2.56
One of the judges in
the case, Karminski LJ, also noted that if, for example, the father had applied
to court for a custody order over his son it would probably not have been
given. He stated:
“in the circumstances of this case the court would be at least very slow
to make an order in respect of a mature boy approaching the age of 16, especially
as such an order would be very difficult to enforce if the boy refused to obey
it.”[139]
2.57
Another judge in the Hewer
case, Lord Denning MR, took a similar view, namely that the concept of “custody”
by a parent was a factual concept rather than a legal concept. He therefore
rejected the “legal concept” view, set out in 1883 in Re Agar-Ellis,[140]that
a person remained under the complete custody and control of their parents until
they were 21. Lord Denning MR pointed out that Re Agar-Ellis:
“reflects the attitude of a Victorian parent towards his children. He
expected unquestioning obedience to his commands. If a son disobeyed, his
father would cut him off with 1 shilling. If a daughter had an illegitimate
child, he would turn her out of the house. His power only ceased when the child
became 21.”[141]
2.58
He added: “I decline to
accept a view so much out of date.” Lord Denning MR then went on to state that
the law should be updated to reflect the reality of the position of parents and
their teenage children in the second half of the 20th century. His
analysis, which is set out below, included a reference to the 1967 Latey Report
whose recommendations would, just one month later, be enacted in the Family
Law Reform Act 1969. Lord Denning MR stated:
“The common law can, and should, keep pace with the times. It should
declare, in conformity with the recent Report on the Age of Majority
[the 1967 Latey Report], that the legal right of a parent to the custody of a
child ends at the eighteenth birthday; and even up till then, it is a dwindling
right which the courts will hesitate to enforce against the wishes of the child,
the older he is. It starts with a right of control and ends with little more
than advice.”[142]
2.59
The general view of the
English Court of Appeal in the Hewer case involves an important approach
to analysing the relationship between parents and their older teenage children.
The Court rejected the “legal ownership” concept of “custody” taken in the 1883
decision in Re Agar-Ellis. Instead, a more realistic analysis was taken,
in which the court accepted that it would, for example, be futile to insist on
enforcing custody orders on someone who was almost 16 years old. Indeed,
Karminski LJ referred to a 15-nearly-16 year old as a “mature boy”, which
anticipates the concept of the “mature minor” that was developed in later
cases, such as the Gillick case discussed below (and comparable cases in
other countries, also discussed below).
2.60
Lord Denning MR took
the same general approach, noting that the virtually complete “control” of
parents concerning their very young children gave way, realistically, to
“little more than advice” as the children reached the age of majority of 18. As
he noted this was exactly as the 1967 Latey Report had recommended and which
Lord Denning (who was not only a judge of the Court of Appeal but also a member
of the UK House of Lords in its legislative role) may have been aware was about
to be implemented a month later in the English Family Law Reform Act 1969. This
approach to the waning of the parental role, and the corresponding waxing of
the role of children, also anticipated the approach taken in later
international standards, such as the 1989 UN Convention on the Rights of the
Child, and is now also reflected in Irish legislation (such as the Child
Care Act 1991 and the Adoption Act 2010) and Irish case law (such as
the McK case and the D case), discussed above.
2.61
The position of those
under 16 years of age was not dealt with explicitly in the English Family
Law Reform Act 1969. As already noted, however, section 8(3) of the 1969
Act amounted to a “saver” clause, in that it preserved whatever capacity was
already conferred on those under 16 by the existing common law rules on
capacity, which the decision in the Hewer case had reinforced in a
modern setting.
2.62
This was the background
to the landmark 1985 decision of the UK House of Lords[143]
in Gillick v West Norfolk and Wisbech Health Authority.[144]
The Gillick decision has been described as the most significant English
case of the 20th century on the legal relationship between parents
and children,[145] though the
decision in Hewer had already clearly indicated that “mature” persons
under 16 had important decision-making capacity that could operate
independently of their parents. No doubt, the discussion in 1969 of the
decision-making capacity of a 15 year old male in the context of the
application of limitation periods to personal injuries litigation did not
attract the publicity that the discussion in 1985 of the decision-making
capacity of a 15 year old to access the contraceptive pill.
2.63
The Gillick case
concerned a challenge by Mrs Gillick, a mother of five daughters under the age
of 16, to the legality of guidance issued in 1980 by the English Department of
Health and Social Security to health authorities, including West Norfolk and
Wisbech Area Health Authority. The key part of the guidance stated:
“There is widespread concern about counselling and treatment for
children under 16. Special care is needed not to undermine parental
responsibility and family stability. The Department would therefore hope that
in any case where a doctor or other professional worker [such as a nurse] is
approached by a person under the age of 16 for advice in these matters, the
doctor, or other professional, will always seek to persuade the child to
involve the parent or guardian (or other person in loco parentis) at the
earliest stage of consultation, and will proceed from the assumption that it
would be most unusual to provide advice about contraception without parental
consent.
It is, however, widely accepted that consultations between doctors and
patients are confidential; and the Department recognises the importance which
doctors and patients attach to this principle. It is a principle which applies
also to the other professions concerned. To abandon this principle for children
under 16 might cause some not to seek professional advice at all. They could
then be exposed to the immediate risks of pregnancy and of sexually-
transmitted diseases, as well as other long-term physical, psychological and
emotional consequences which are equally a threat to stable family life. This
would apply particularly to young people whose parents are, for example,
unconcerned, entirely unresponsive, or grossly disturbed. Some of these young
people are away from their parents and in the care of local authorities or
voluntary organisations standing in loco parentis.
The Department realises that in such exceptional cases the nature of any
counselling must be a matter for the doctor or other professional worker
concerned and that the decision whether or not to prescribe contraception must
be for the clinical judgement of a doctor.”
2.64
The 1980 guidance can
be broken down into 6 elements: (i) that special care was needed “not to
undermine parental responsibility and family stability” and that, therefore, a
doctor “will always seek to persuade the child to involve the parent or
guardian doctor at the earliest stage of consultation”; (ii) that the doctor
“will proceed from the assumption that it would be most unusual to provide advice
about contraception without parental consent”; (iii) that consultations between
doctors and patients are confidential, and that this applies to those under 16;
(iv) that the confidentiality of consultations needs to be upheld because its
absence could cause some under 16s not to seek professional advice at all,
which could then expose them to “the immediate risks of pregnancy and of
sexually-transmitted diseases, as well as other long-term physical,
psychological and emotional consequences which are equally a threat to stable
family life;” (v) that these risks would apply particularly to young people
whose parents are, for example, unconcerned, entirely unresponsive, or grossly
disturbed, and that this would especially apply where the young people are in
the care of the State or voluntary organisations standing in loco parentis; and
(vi) that in the “exceptional cases” described in the guidance, the counselling
to be given is a matter for the doctor or other professional worker, such as a
nurse, and “that the decision whether or not to prescribe contraception must be
for the clinical judgement of a doctor.”
2.65
The 1980 guidance
therefore proceeded on the basis that it would be "most unusual" to
provide advice about contraception without parental consent. Because it also
referred to certain cases where difficulties might arise if the doctor refused
to promise that his advice would remain confidential, it concluded that the
DHSS realised that “in such exceptional cases” the decision whether or not to
prescribe contraception must be for the clinical judgment of a doctor. In
effect, therefore, the guidance stated that in those circumstances a doctor
would not be acting unlawfully by prescribing contraceptives, primarily the
contraceptive pill, to a young person under 16 years of age to protect her from
the risks of pregnancy or sexually-transmitted disease. Crucially, the guidance
stated that this could be done without parental knowledge let alone consent,
though only in the “exceptional” and “unusual” cases specified. This guidance
was based on the authorities’ view of the then-existing common law position
concerning the capacity of those under 16 to consent to certain medical
treatment.
2.66
Mrs Gillick applied
for a declaration that the advice in the guidance was unlawful because it
breached her parental rights. The Gillick case thus required the English
courts to consider two related matters: the rights and entitlement of parents
concerning their children, in particular their adolescent children; and the
mental capacity of those children. It also required the courts to decide
whether a version of the “mature minor” rule, which had in some respect already
been acknowledged in section 8(3) of the Family Law Reform Act 1969 and
in the Hewer case (and which was beginning to evolve at that time in
other countries), could or should be developed in English law.
2.67
In Gillick the
UK House of Lords decided, by a 3-2 majority, that the guidance issued by the English
Department of Health and Social Security was lawful.[146]
The three judges in the majority agreed with the 1969 decision of the Court of
Appeal in Hewer v Bryant,[147]
discussed above, that parental rights in relation to their children recede as
their child matures, and they also concluded that a strict age rule in relation
to consent to medical treatment for those under 16 (as opposed to the clear
rule for 16 and 17 year olds in section 8 of the English Family Law Reform
Act 1969) would not take account of the growing maturity and
capacity of the child. The majority judgments in Gillick stressed that
the significant factor in assessing the capacity of a person under 16 was not
the age of the individual but his or her ability to understand fully what was
proposed.
2.68
The House of Lords in Gillick thus decided that a child under the
age of 16 does not lack capacity by virtue of age alone, and that his or her
capacity should not be determined by reference to a judicially fixed age limit.
One of the judges in the
majority, Lord Scarman stated:[148]
“I would hold that as a matter of law the parental right to
determine whether or not their minor child below the age of 16 will have
medical treatment terminates if and when the child achieves a sufficient
understanding and intelligence to enable him or her to understand fully what is
proposed... The law relating to parent and child is concerned with the problems
of the growth and maturity of the human personality. If the law should impose
on the process of ‘growing up’ fixed limits where nature knows only a
continuous process, the price would be artificiality and a lack of realism in
an area where the law must be sensitive to human development and social
change.”[149]
2.69
It is clear, therefore,
that Lord Scarman was reluctant to set down a definitive rule concerning those
under 16 and preferred a maturity test instead. This approach is consistent
with the literature on child development and early adulthood already discussed
by the Commission in Chapter 1, above.
2.70
One of the other judges
in the majority in the Gillick case, Lord Fraser, went somewhat further
by setting out five matters which, if followed by a prescribing doctor, would
mean that the doctor would be acting lawfully in prescribing contraceptives to
an under 16 year old. These five matters, or guidelines, have become known as
the “Fraser Guidelines” and, crucially mean that a doctor can proceed, as Lord
Fraser stated, “without the parents’ consent or even knowledge.” In the
relevant part of his judgment, Lord Fraser stated:
“The doctor
will, in my opinion, be justified in proceeding without the parents’ consent or
even knowledge provided he is satisfied on the following matters:
1. that the girl (although under 16 years of age) will understand his
advice
2. that he cannot persuade her to inform her parents or to allow him to
inform the parents that she is seeking contraceptive advice
3. that she is very likely to begin or to continue having sexual
intercourse with or without contraceptive treatment
4. that unless she receives contraceptive advice or treatment her physical
or mental health or both are likely to suffer
5.
that her best interests
require him to give her contraceptive advice, treatment or both without
parental consent.”[150]
2.71
Although these five
matters were set out by Lord Fraser alone, rather than a majority of the judges
in the Gillick case, the “Fraser Guidelines” as they have become known,
have virtually achieved the status of definitive rules. The “Fraser Guidelines”
are certainly followed as best practice in England in the context of providing
contraception to young people under 16 years of age. Indeed, they were repeated
in full in guidelines issued by the English Department of Health in 1986 and
updated in 2004, replacing the 1980 guidance which had led to the Gillick case
itself. The 2004 guidance reiterated the principle of confidentiality that had
been set out in the 1980 guidance, and then stated:
“It is considered good practice for doctors and other health
professionals to consider the following issues when providing advice or
treatment to young people under 16 on contraception, sexual and reproductive
health.
If a request for contraception is made, doctors and other health
professionals should establish rapport and give a young person support and time
to make an informed choice by discussing:
· The emotional and physical implications of sexual
activity, including the risks of pregnancy and sexually transmitted infections.
· Whether the relationship is mutually agreed and
whether there may be coercion or abuse.
· The benefits of informing their GP and the case
for discussion with a parent or carer. Any refusal should be respected. In the
case of abortion, where the young woman is competent to consent but cannot be
persuaded to involve a parent, every effort should be made to help them find
another adult to provide support, for example another family member or
specialist youth worker.
· Any additional counselling or support needs.
Additionally, it is considered good practice for doctors and other
health professionals to follow the criteria outlined by Lord Fraser in 1985, in
the House of Lords’ ruling in the case of Victoria Gillick v West Norfolk
and Wisbech Health Authority and Department of Health and Social Security.
These are commonly known as the Fraser Guidelines:
· the young person understands the health professional’s
advice;
· the health professional cannot persuade the
young person to inform his or her parents or allow the doctor to inform the
parents that he or she is seeking contraceptive advice;
· the young person is very likely to begin or continue
having intercourse with or without contraceptive treatment;
· unless he or she receives contraceptive advice
or treatment, the young person’s physical or mental health or both are likely
to suffer;
· the young person’s best interests
require the health professional to give contraceptive advice, treatment or both
without parental consent.”[151]
2.72
It is clear, therefore, in the wake of this revised guidance from the
DHSS, that English health care practitioners are required to adopt as best
practice the “Fraser Guidelines” from the Gillick case. The decision in
Gillick has also had a wider influence in the development of various
legislative provisions in England dealing with children. While the Gillick case
was confined to contraception, the “Fraser Guidelines” have become a general
template for a more wide-ranging “mature minor” rule in English law. Focusing
in particular on the test of mental capacity referred to by Lord Scarman, and the
first matter mentioned by Lord Fraser in the “Fraser Guidelines” – that the
person under 16 understands the health care advice being given – the English
version of the “mature minor” rule is also sometimes summarised as being that
the person under 16 “is Gillick competent” or “has Gillick competence.”
2.73
The essence of the English “mature minor” rule, or “Gillick competence,”
is therefore that the person under 16 understands the health care advice being
given. This general rule has, since 1985, been included in legislative
provisions which set out a test of the legal capacity of a person under 18,
including the “mature minor” under 16, to consent to and refuse medical
treatment generally. In this respect, the English Children Act 1989 contains
five provisions which give a person under the age of 18 – who has sufficient
understanding to make an informed decision (referred to by Lord Scarman in Gillick
and the first matter referred to in the “Fraser Guidelines” in Gillick)
– the power to refuse to submit to medical and psychiatric examinations and
other assessments.[152] For
example, section 38(6) of the English Children Act 1989, which deals
with interim care orders concerning a “child”, that is, a person under 18 years
of age, states:
“Where the court makes an interim care
order, or interim supervision order, it may give such directions (if any) as it
considers appropriate with regard to the medical or psychiatric examination or
other assessment of the child; but if the child is of sufficient
understanding to make an informed decision he may refuse to submit to the
examination or other assessment.” (emphasis added)
2.74
As already mentioned,
this version of a maturity test is consistent with international standards in
this area, including for example the 1989 UN Convention on the Rights of the
Child (UNCRC), and in comparable provisions in Ireland in for example, the Child
Care Act 1991. In this context, it is important to note that some elements
of the “Fraser Guidelines” in the Gillick case, and the comparable
approach in the English Children Act 1989, take a rights-based view of those under 16. It
is equally important to note that another important element of both the common
law and statutory approaches to those under 16 is that the “best interests” of
the person under 16 remains a matter to take into account. Thus, while the Gillick
case remains a landmark decision in this area, subsequent cases have
pointed out that the views of a person under the age of 16 cannot be equated
with those of an 18 year old, who has actually reached the age of majority. In
some cases, the question that arises is, as in Gillick, what role
parents have, while in others the question of some other overriding consideration,
such as the preservation of life, is involved.
2.75
As to the role of
parents, two decisions of the English Court of Appeal, Re R[153]
and Re W,[154]
led to the development of the concept of “concurrent consent.” The first of
these cases, Re R, involved a 15 year old girl who had a mental
health illness which involved periods of violent and suicidal behaviour
followed by lucid thought. The 15 year old refused to take medication. Wardship
proceedings, under which she would be subject to court supervision, were then
initiated. The English Court of Appeal concluded that, even if she were “Gillick
competent” (and because of the extremity of her behaviour the Court held
she could not be), consent could be given by somebody else with parental
responsibility, or by the court using its inherent powers to act as the
equivalent of a parent (referred to in England as the parens patriae
jurisdiction of the courts). One of the judges, Lord Donaldson, likened consent
to a key and concluded that refusal to have treatment by a “Gillick competent”
child did not prevent the necessary consent being obtained by another source,
that is, another “key holder”, whether her parents or a court.
2.76
In the second case, Re W, [155]
a 16 year old who had anorexia nervosa refused any medical treatment for
her condition. As in Re R, above, wardship proceedings were then
initiated. In this case, the Court decided that section 8 of the English Family
Law Reform Act 1969, discussed above, did not give the 16 year old child an
absolute right to refuse treatment; rather, it protected the doctors from
criminal prosecution by allowing her to consent as if she were an adult. In
this respect, a new analogy was introduced by Lord Donaldson, on the basis that
keys could lock as well as unlock and a minor cannot lock the door to
treatment. This was based on viewing consent as a flak jacket, to protect
doctors from prosecution:
“Anyone who gives him a flak
jacket may take it back, but the doctor only needs one and as long as he
continues to have one he has the legal right to proceed.”[156]
2.77
Applying the general approach in the Gillick case, the Court in Re
W accepted that as a child matured so did his or her ability to express his
or her wishes and feelings. In this case, however, the Court concluded that the
fifth matter set out in the “Fraser Guidelines” from Gillick – what was
in her best interests – meant that her wishes should not be carried out,
especially because one symptom of anorexia was, at least, in part, a desire not
to get better.
2.78
The analogies used by Lord Donaldson in these two English cases have
been criticised as reducing consent to a mere formality, designed to protect
doctors from litigation.[157] It has
also been suggested that the “concurrent
consent” approach involves a retreat from Gillick and the
approach in the English Children Act 1989, creating a precedent that
mature minors cannot refuse treatment in certain instances. It has also been
suggested that this is inconsistent with the fundamental principle of consent
by setting a higher tariff for refusing a medical examination or procedure than
for consenting to one.[158] While this
criticism of the judgments in Re R and Re W may have some merit,
in particular by suggesting that “parallel consents” may be valid, the
Commission notes that the 15 and 16 year olds involved in those cases were
living with illnesses which greatly affected their judgement and mental
capacity to make a choice.
2.79
In addition, the Commission notes that, in some circumstances, it is
clear that, in exercising its inherent jurisdiction and in applying a “best
interests” test, a court may come to a result that is at variance with the
wishes of the young person. This is especially so where the case is one of
“life or death,” and where the courts may, in cases of doubt, apply a
presumption in favour of life. Indeed, the Commission also took this view in
the case of persons over 18 years of age in its 2009 Report on Bioethics:
Advance Care Directives.[159] This was
also the outcome in five other
English cases, Re E,[160] Re S,[161]
Re L,[162]
Re M[163] and Re
P,[164]
which involved the refusal of treatment by a person under 16 being overridden
by the courts for reasons connected to the issue of life preservation rather
than parental consent. All but Re M involved the refusal of blood
products on religious grounds.
2.80
The first of these cases, Re E,[165]
which was referred to by Keane CJ in his judgment in North Western
Health Board v HW and CW,[166] involved a 15 year old boy, who was a Jehovah’s Witness and who
had refused a blood transfusion that was to be administered to treat his
recently-diagnosed leukaemia. As Keane CJ pointed out in the North Western
Health Board case, Ward J in Re E had ordered the blood transfusion
to proceed on the ground that, among other matters, the 15 year old in question
“was not of sufficient understanding and maturity to give a full and informed
consent.”[167] Ward J acknowledged that the boy,
who would be 16 about 6 weeks after the case was heard, was “of sufficient
intelligence to be able to take decisions about his own well-being, but I also
find that that there is a range of decisions of which some are outside his
ability fully to grasp their implications.”[168]
2.81
Bearing in mind that
the boy was nearly 16, Ward J accepted that his wish not to have a transfusion
as part of his treatment was “a very important matter which weighs very heavily
in the scales I have to hold in balance.”[169]
As the case was a matter of life and death (Ward J delivered his judgment at
10pm on a Friday night having heard the case that day and having visited the
boy in hospital), Ward J concluded that his refusal of treatment was not the
product of a full and free informed will. In this respect, the approach of Ward
J in Re E is comparable to the approach of the High Court in Fitzpatrick
v FK (No.2),[170]
in which Laffoy J took into account the gravity of the consequences of refusal
of a blood transfusion in concluding that the decision of a 23 year old woman
did not pass the functional test of capacity.
2.82
It may be that the
approach of Ward J in Re E – and of Laffoy J in Fitzpatrick v FK
(No.2) – is open to the criticism that it implies that the
strongly-held religious beliefs of adolescents – or of a 23 year-old woman – are given less
standing than would be appropriate.[171] In the Commission’s view, however, the
decisions in the blood transfusion cases are consistent with other decisions in
this area. The Commission notes that, in all these cases, the courts have
emphasised that, in exercising their inherent jurisdiction in any “life or
death” situation, the life and welfare of the young person (and, in Fitzpatrick
v FK (No.2), the life and welfare of a 23 year old woman) weighs
heavily with the courts. Indeed, this was the approach in the English case that
did not involve a blood transfusion, Re M.[172]
This case involved a 15 year old girl who refused to consent to a heart
transplant. Johnson J did not simply state that M was incompetent and
therefore incapable of refusing the treatment in question. Rather, he stated
that the authorisation of the treatment was in her best interests.
2.83
The decision in R (Axon) v Secretary of State for Health[173]
has signalled a renewed focus on the autonomy of children, and it has been
suggested that this raises doubts as to any apparent retreat from Gillick.[174] The
circumstances could be described as “Gillick Part 2,” because the
claimant argued that the English Department of Health’s 2004 guidelines on the
provision of contraception to young people under 16 years of age, which had
incorporated the “Fraser Guidelines,” were unlawful. In the Axon case,
the specific complaint was that the 2004 guidelines stated that young people
under 16 years of age are owed the same duty of confidentiality as any other
person. Mrs Axon claimed that this interfered with her rights and
responsibilities as a parent and contravened Article 8(1) of the European
Convention on Human Rights (ECHR), which guarantees respect for family and
private life. It was also argued that the 2004 guidelines went further than the
“Fraser Guidelines” in Gillick.
2.84
In the English High Court, Silber J held against the claimant. He
concluded that the decision in Gillick had clearly ruled that a doctor
could lawfully give advice to a competent minor without parental knowledge.
Furthermore, the claimant’s argument was contrary to the high duty of
confidentiality applicable in the context of medical information, the legal
rights of young people, and international principles of human rights which
require respect for the autonomy of young people. Competent children, Silber J
held, are entitled to the same duty of confidentiality as adults and there is a
strong public interest in the maintenance of confidences, particularly in the
context of young people seeking advice on matters of sexual health.
2.85
In relation to the claim concerning Article 8(1) of the ECHR, Silber J
stated that the ECHR shows that the duty of confidence owed by a medical
professional to a competent young person is a high one and can only be
overridden for a very powerful reason. The Axon case served to uphold
the view that competent young people with capacity, that is, who are Gillick
competent or who pass a “mature minor” test, are owed the same duty of
confidentiality as adults. The position in relation to the nature of the duty
of confidentiality owed to young people who are not Gillick competent,
however, remains unclear.
2.86
Silber J, referring to the Gillick case, stated that the parental
right to determine whether a young person will have medical treatment
terminates if and when the young person achieves a sufficient understanding and
intelligence to understand fully what is proposed.
2.87
Commenting on the Axon case, Herring sees this statement as an
implication that, if a child is competent, a parent has no right to determine
what treatment a child will receive, thereby rejecting the notion of concurrent
consents.[175] The
Commission accepts that Herring’s analysis cannot, however, be taken as a
definitive view of English law. Nonetheless, it appears to be consistent with
developments in other countries, notably in Canada, which are discussed below.[176]
At the very least, however, the Axon case can be seen as a strong
affirmation of the principles laid down in Gillick and an explicit
recognition of the decision-making rights of young people.[177]
2.88
The law – and related guidance – in Northern Ireland has, broadly,
followed developments in England and Wales – and those in this State. Thus, the
Age of Majority Act (Northern Ireland) 1969 was enacted by the
Parliament of Northern Ireland (whose legislative functions are now carried
out, since post-1998 devolution, by the Northern Ireland Assembly) in order to
implement the key element of the 1967 Latey Report. The Northern Ireland 1969
Act thus reduced the age of majority from 21 to 18 and also mirrored other
comparable provisions in the English Family Law Reform Act 1969. Thus,
section 4 of the Age of Majority Act (Northern Ireland) 1969 is worded
in identical terms to section 8 of the English 1969 Act (which, as already
noted, was the model for section 23 of the Non-Fatal offences Against the
Person Act 1997) and states:
“(1) 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.
(2) In this section “surgical,
medical or dental treatment” includes any procedure undertaken for the purposes
of diagnosis, and this section applies to any procedure (including, in
particular, the administration of an anaesthetic) which is ancillary to any
treatment as it applies to that treatment.
(3) Nothing in this section shall be
construed as making ineffective any consent which would have been effective if
this section had not been enacted.”
2.89
Northern Ireland legislation has also implemented a “mature minor” test
of “sufficient understanding” along the lines of the comparable provisions in
English legislation (and the equivalent legislation in this State). Thus,
Article 57(6) of the Children (Northern Ireland) Order 1995, which
deals with interim care orders concerning a “child”, that is, a person under 18
years of age, is worded virtually identically to section 38(6) of the English
Children Act 1989 (and in this State in the Child Care Act 1991) and
states:
“Where the court makes an interim care
or interim supervision order, it may give such directions (if any) as it
considers appropriate with regard to the medical or psychiatric examination or
other assessment of the child; but if the child is of sufficient
understanding to make an informed decision he may refuse to submit to the
examination or other assessment.” (emphasis added)
2.90
Similarly, in the
context of adoption, Article 9 of the Adoption (Northern Ireland)
Order 1987 provides that a court or adoption agency must ensure that the
welfare of the child involved is the most important consideration. Article 9(b)
adds that (as is the case under the Adoption Act 2010 in this State),
the court or adoption agency is required to:
“ascertain the wishes and feelings of
the child regarding the decision and give due consideration to them, having
regard to his age and understanding.”
2.91
Delivering a public
lecture in 2003,[178] the Northern Ireland High Court judge Gillen J noted that the obligation in
Article 57(6) of the Children (Northern Ireland) Order 1995 to give due
weight to the views of the child implemented in Northern Ireland the provisions
of Article 12 of the 1989 UN Convention on the Rights of the Child (UNCRC).[179]
He added:
“If we are to make progress we must increasingly consider the concept of
rights which visualises that children will either take their own decisions or
at least have a strong say in matters affecting them. We must be wary lest
compassion for children shades into unthinking condescension...[180]
In our court system children need a voice, someone who is able to listen to
anything they wish to say and tell them what they need to know”[181]
2.92
In 2005, Gillen J applied the approach he had set out in his 2003 public
lecture in Re Z and T (Freeing Order Application),[182]
in which he had to consider whether a 6 year old girl should be placed for
adoption. He noted that Article 9 of the Adoption (Northern Ireland) Order
1987 (referred to above) emphasises the child’s welfare as a significant
consideration, and it also provides that the court should ascertain the wishes
and feelings of the child having regard to the child’s age and understanding.
In this respect, Gillen J stated:[183]
“I recognise that
this child is not Gillick competent and would... accommodate herself to
an adoption, nonetheless I regard her stated wishes that she does not want to
be adopted as having some significance.”
2.93
Thus, while Gillen J noted that the 6 year old was not Gillick
competent, her views were relevant to the decision of the court under the Adoption
(Northern Ireland) Order 1987. Gillen J ultimately concluded that an
adoption order would not be compatible with the child’s welfare and best
interests. The decision in this case indicates that the courts in Northern
Ireland have applied the principles in Gillick v West Norfolk and Wisbech
Area Heath Authority.
2.94
Indeed, the judicial application of Gillick in Northern Ireland
had been anticipated in an article by Gillian Kerr written in 1984.[184]
She had pointed out that the 1983 decision of the English High Court in Gillick,
which had upheld the validity of the 1980 DHSS guidance at issue (and which the
UK House of Lords subsequently upheld in 1985[185]),
largely reflected existing common law on the capacity of minors to consent
to treatment. She commented: “[i]n relation to the consent of minors to medical
treatment for themselves, the better view seems to be that their consent is
effective where they understand the full implications of the procedure.”[186]
In the difficult cases involving, for example, treatment related to “pregnancy,
sexually transmitted disease and drug abuse,” she commented that “faced with a
choice between giving necessary treatment in confidence or the rejection of
treatment and advice, most doctors and judges would agree that confidentiality
was appropriate.”[187] These
comments largely reflect the ultimate reception of Gillick in Northern
Ireland, as indicated by decisions such as Re Z and T (Freeing Order
Application).[188]
2.95
In addition, as already noted, in this respect the legislative
provisions and case law in Northern Ireland also mirror the literature on child
development and relevant international standards in this area, including the
1989 UN Convention on the Rights of the Child (UNCRC), which the Commission has
discussed in Chapter 1. In broad terms, therefore, the legal position in Northern
Ireland concerning those under 18 is virtually identical to the position in
England and Wales. They also reflect the comparable statutory provisions in
this State, discussed above.
2.96
As to relevant guidance in this area, in the wake of the decision of the
UK House of Lords in 1985 in the Gillick decision, in 1987 the Northern
Ireland Department of Health and Social Services reviewed its guidance on
providing contraceptive services to young people. The 1987 guidance reflected
the revised English DHSS guidance published in 1986 after the Gillick case
(and further revised in 2004). The Northern Ireland Department of Health and
Social Services concluded that, since the UK House of Lords was the highest
court in the UK (since 2009, replaced by the UK Supreme Court) and since the
decision was based on an analysis of the comparable common law, “there is no
reason to suppose therefore that the decision in the Gillick case would
not be followed by the Northern Ireland courts.”[189]
This approach is supported by the use of “Gillick competence” in the
courts in Northern Ireland as a basis for determining the maturity of persons
under 16, as evidenced in Re Z and T (Freeing Order Application).[190]
2.97
In this light, in 2003 the Northern Ireland Department of Health, Social
Services and Public Safety issued a Reference Guide to Consent for
Examination, Treatment or Care.[191] This 2003 Reference Guide builds on the
Department’s 1987 guidance document referred to above, and provides
comprehensive guidance to health and social care professionals concerning
consent to, and refusal of, treatment, both for adults over 18 and young persons
and children under 18. The 2003 Reference Guide draws on relevant
English case law on this issue, including the Gillick case and the
subsequent English case law on consent to and refusal of treatment, which has
been discussed above.[192]
2.98
As to persons under 18, the 2003 Reference Guide points out that,
under section 4 of the Age of Majority Act (Northern Ireland) 1969,
“people aged 16 or 17 are entitled to consent to their own medical treatment,
and any ancillary procedures involved in that treatment, such as an
anaesthetic.”[193] It also
points out that the same test of capacity as applies to adults, the functional
test, is applicable to 16 and 17 year olds. As to parental involvement with 16
and 17 year olds, it states:[194]
“If the requirements for valid consent
are met, it is not legally necessary to obtain consent from a person with
parental responsibility for the young person in addition to that of the young
person. It is, however, good practice to encourage the young person to involve
their family in the decision-making process, unless the young person
specifically wishes to exclude them.”
2.99
As to those under 16, the 2003 Reference Guide states: [195]
“Following the case of Gillick,
the courts have held that children who have sufficient understanding and
intelligence to enable them to understand fully what is involved in a proposed
intervention will also have the capacity to consent to that intervention. This
is sometimes described as being ‘Gillick competent’... As the
understanding required for different interventions will vary considerably, a
child under 16 may therefore have the capacity to consent to some interventions
but not to others.”
2.100
The 2003 Reference Guide adds:[196]
“The concept of Gillick
competence is said to reflect the child’s increasing development to maturity.
In some cases, for example because of a mental disorder, a child’s mental state
may fluctuate significantly so that on some occasions the child appears Gillick
competent in respect of a particular decision and on other occasions does
not. In cases such as these, careful consideration should be given to whether
the child is truly Gillick competent at any time to take this decision.”
2.101
As to parental involvement with those under 16, the 2003 Reference
Guide states:
[197]
“If the child is Gillick
competent and is able to give voluntary consent after receiving appropriate
information, that consent will be valid and additional consent by a person with
parental responsibility will not be required. However where the decision will
have on-going implications, such as long-term use of contraception, it is good
practice to encourage the child to inform his or her parents unless it would
clearly not be in the child’s best interests to do so.”
2.102
The Commission notes that the 2003 Reference Guide provides
extremely useful guidance for all health and social care professionals in
Northern Ireland concerning the position of those under 18. The Commission also
notes that the guidance applies across the range of professionals who are
likely to be involved in the wide scope of health care, as already defined in
this Report in Chapter 1, which those under 18 are likely to seek. In this State,
while the Medical Council’s 2009 Guide to Ethical Conduct and Behaviour,
discussed already, provides some useful guidance in this respect, it is not as
detailed as the comparable elements in the 2003 Reference Guide, nor
does it (nor could it) provide guidance to professionals other than doctors.
2.103
Having noted that the 2003 Reference Guide provides extremely
useful guidance for all health and social care professionals, the Commission
also notes that its discussion of the concept of Gillick competence,
that is, the “mature minor” concept, does not set out clearly all of the
factors, such as the 5 factors set out in the “Fraser Guidelines,” which are to
be found more clearly articulated in the English DHSS guidance discussed above.
The Commission concludes, nonetheless, that the approach taken in the 2003 Reference
Guide provides an extremely helpful basis on which to develop guidance that
would supplement an appropriate legal framework.
2.104
Scottish law differs
from the law in England, Wales and Northern Ireland in an important respect, in
that the Age of Legal Capacity (Scotland) Act 1991 sets the age of
majority at 16. The 1991 Act implemented the recommendations made in the
Scottish Law Commission’s 1987 Report on the Legal Capacity and
Responsibility of Minors and Pupils.[198]
The Commission’s 1987 Report recommended that 16 should be the age at which a
person has full legal capacity, including capacity to consent to medical
treatment. The Scottish Commission recommended a flexible exception for persons
under 16 years of age, in effect mirroring the test in what became the English Children
Act 1989,[199] discussed
above, and which derived from the “mature minor” rule in the Gillick case.
2.105
Section1(1)(b) of the Age
of Legal Capacity (Scotland) Act 1991 states that, in general:
“a person of or
over the age of sixteen years shall have legal capacity to enter into any
transaction.”
2.106
Section 9 of the 1991
Act defines “transaction” as a transaction which has legal effect and includes
the giving by a person of any consent having legal effect.
2.107
The Age of Legal Capacity (Scotland) Act 1991 therefore gives
young people full legal capacity to enter into most transactions at the age of
16. Under the 1991 Act, there
appear to be no grounds to enable a parent, guardian or the courts to override
the refusal of treatment by a 16 year old, unless the 16 year old in question
otherwise lacks capacity, based on a functional test.
2.108
As to persons under 16,
section 2(4) of the Age of Legal Capacity (Scotland) Act 1991 states:
“A person under
the age of sixteen shall have legal capacity to consent on his own behalf to
any surgical, medical or dental treatment where, in the opinion of a qualified
medical practitioner attending him, he is capable of understanding the nature
and possible consequences of the procedure or treatment.”
2.109
The language of section
2(4) is enabling in that it refers only to capacity to consent with no mention
of refusal of medical treatment as the corollary of consent. A number of
commentators have treated this provision as encompassing the legal capacity to
refuse medical treatment as well as the capacity to consent to medical
treatment.[200] The
wording of section 2(4) also suggests that no concurrent power of consent is
retained by the parent of a “section 2(4) competent” child (that is, a “mature
minor”). Furthermore, section 90 of the Children (Scotland) Act 1995
states that a child who is capable under section 2(4) may only be examined or
treated under the 1995 Act if he or she consents to the examination or
treatment. As discussed above, the comparable statutory provisions in the
English Children Act 1989 have been interpreted as being subject to the
inherent protective role of the courts concerning children (reflecting its
long-standing wardship or parens patriae jurisdiction) to override a refusal where the
courts consider that the person under 16 lacks capacity. In order to ensure
that any such approach would avoid a paternalistic view that does not take
account of the relevant rights of a person under 16, it may be that the
approach taken in the English Axon case, discussed above, would be
followed in Scotland.
2.110
In 2006, the Scottish
Executive’s Department of Health issued A Good Practice Guide on Consent for Health
Professionals in the NHS Scotland. The 2006 Good Practice Guide is,
broadly, comparable to the English (2004) and Northern Ireland (2003) Guides
discussed above, but reflects the different position in Scottish law as to the
age of majority. Thus, the 2006 Good Practice Guide points out that, under the Age of Legal Capacity
(Scotland) Act 1991, when persons reach their 16th birthday,
they gain the legal capacity to make decisions which have legal effect, unless
the person lacks the appropriate mental capacity.[201]
The 2006 Good Practice Guide also states that where a child, that is a person under 16, has capacity
to make a health care decision, the 1991 Act requires that the child’s decision
should be respected, even where it differs from the opinion of the healthcare
professional and the child’s parents.
2.111
In re Houston,
Applicant[202] involved a 15 year old boy who was
deemed competent under section 2(4) of the 1991 Act and who resisted an
application under section 18 of the Mental Health (Scotland) Act 1984 to
have him admitted to a mental health hospital. The central question to be
decided was whether parental consent could override the refusal of a competent
minor. The judge in the Sheriff’s Court who dealt with the case held that
section 2(4) of the 1991 Act applied to both consent and refusal, so that the
consent of the 15 year old’s mother could not override his refusal. He stated: [203]
“It seems to be
illogical that, on the one hand, a person under the age of 16 should be granted
the power to decide upon medical treatment for himself while, on the other
hand, his parents have the right to override his decision. I am inclined to the
view that the minor’s decision is paramount and cannot be overridden.”
2.112
There are, however,
limitations to the Houston case.[204]
Thus, section 11(2) of the Children (Scotland) Act 1995 provides for the
making of applications in relation to parental rights and responsibilities. An
application for a specific issue order can be made by a person with an
interest, such as a doctor. This is limited to persons under 16 years of age
because sections 1(2) and 2(7) of the Children (Scotland) Act 1995
provide for the cessation of parental responsibilities and rights when a child
reaches the age of 16, except for the responsibility to provide guidance which
ends on a child’s 18th birthday. Section 6 of the Adults with
Incapacity (Scotland) Act 2000 states that, for the purposes of the Act, an
adult is a person who has attained the age of 16 years.
2.113
It is clear that in
Scotland the age of 16 is well established in law as the age at which a young
person may assume responsibility for his or her healthcare. In respect of
essential medical treatment, it is worth noting the discussion of the Scottish
Law Commission in the 1987 Report which preceded the enactment of the 1991 Act
as to a proposed requirement that the treatment be in the young person’s best
interests:
“If it is
accepted that a child may consent if he or she is of sufficient maturity to
understand the treatment proposed then the test should apply whether the
treatment concerned is for his benefit or not. In that respect, the young
person should be treated no differently from anyone else capable of
consenting.”[205]
2.114
The absence of a best
interests requirement raises some questions in relation to the refusal of
essential medical treatment. For example, may a competent young person under
the age of 16 refuse medical treatment which is in his or her best interests?
The legal situation is not clear in this respect. The deliberate absence of a
best interests requirement suggests that a young person with capacity may make
healthcare decisions regardless of what is deemed to be in his or her best
interests. However if the Age of Legal Capacity (Scotland) Act 1991 is
read in conjunction with the Children (Scotland) Act 1995 a different
conclusion may be reached. Section 16 of the 1995 Act states that the welfare
of a child shall be the court’s paramount consideration.
2.115
The 2006 Good
Practice Guide issued by
the Scottish Executive’s Health Department also states that refusal of consent by or on
behalf of a child may be overridden by the courts under Section 11(2) of the
1995 Act, which provides for applications in relation to parental rights and
responsibilities. An application for a specific issue order can be made by a
person with an interest, such as a doctor.
2.116
In Canada, many
Provinces retain 18 as the general age of majority, but in respect of medical
treatment there has been a general move towards conferring full capacity on
persons from 16 years of age. In addition, for those under 16 years of age, a
“mature minor” rule is well established.[206]
While the “mature minor” rule has predominantly been developed at common law, a
number of relevant statutory provisions have also been enacted.[207]
Provisions enacted in British Columbia and New Brunswick in 1973 and 1975 are
similar to those enacted in other countries at the time, such as England and
Australia.[208] These
provisions can be contrasted with more recent legislative developments in
Ontario and Prince Edward Island,[209]
which are based on a functional approach to capacity and the general
presumption that a person is capable of making a healthcare decision. A number
of statutory provisions in force in other provinces, in relation to substitute
decision making and health care directives, confer a presumption of legal
capacity on individuals aged 16 years of age in terms of health care decision
making.
2.117
A number of the
Canadian provinces and territories, including Alberta and Manitoba, have not
enacted specific healthcare consent legislation in this respect, and continue
to rely on the mature minor rule, supplemented by child welfare legislation.
2.118
The relationship between the mature minor rule and child welfare
legislation has been debated in the courts, primarily in respect of refusal of
essential medical treatment. If a mature minor makes a decision to which child
welfare authorities object, the authorities may seek to override the mature
minor’s status of legal capacity and have the decision to refuse medical
treatment quashed, on the basis that the child is in need of protection.[210]
The incorporation of the best interests principle in various statutory
provisions means that mature minors will only have their decision to refuse
medical treatment upheld if the decision is deemed to be in their best
interests. Several cases involving the refusal of medical treatment, primarily
in the context of refusal of blood transfusions by Jehovah’s Witnesses, have
come before the courts. These have led to important decisions on the legal
capacity of a person under 16 to refuse medical treatment and how child welfare
legislation and the courts’ inherent jurisdiction to protect children (based on the long-standing
wardship or parens patriae jurisdiction) can affect this.
2.119
In this respect, the Commission considers that a 2009 decision of the
Supreme Court of Canada provides a valuable analysis of the law on healthcare decision-making in the context of
refusal of essential treatment. In AC v Manitoba (Director of Child
and Family Services)[211]
the Supreme Court of Canada analysed Canadian law on the mature minor rule and
the legal capacity of competent minors to make health care decisions. The case
involved a 14 year old girl who was admitted to hospital with internal bleeding
caused by Crohn’s disease. She was a devout Jehovah’s Witness, and some months
before hospitalisation she had signed an advance care directive refusing blood
products on account of her religious beliefs. After receiving advice on her
situation, she stated that she understood the reason why a blood transfusion
was recommended and the consequences of refusal. When her condition
deteriorated, her doctors stated that the bleeding was now causing an imminent
serious risk to her health and perhaps her life.
2.120
The Manitoba Director of Child and Family Services considered that she
was a child in need of protection and applied for a treatment order authorising
a blood transfusion under section 25(8) of the Manitoba Child and Family
Services Act which provides, subject to section 28(9), for the
authorisation of treatment for a person under 16 where the court considers this
is “in the best interests of the child.” Section 25(9) of the Act states that
where a person is 16 or over, no medical treatment can be ordered by the court
without the child’s consent unless the court is satisfied that the child is
unable to understand either the relevant information or the reasonably
foreseeable consequences of the treatment decision.
2.121
After a relatively brief hearing, the Manitoba High Court made the order
requested; three units of blood were given to the girl and she made a full
recovery within days. The girl and her parents appealed the order to the
Manitoba Court of Appeal, and also argued that section 25(8) of the Manitoba Child
and Family Services Act was in breach of her constitutional rights under
the 1982 Canadian Charter of Rights and Freedoms, notably her right to
freedom of conscience and religion, her right to life and her right to equal
treatment under the law. In particular, it was noted that section 25(9) of the
Manitoba Act contained a presumption of capacity for a person over 16
years of age (the age of capacity or majority) whereas no such presumption of
capacity applied to a person under 16. The Manitoba Court of Appeal dismissed
the constitutional claims and also approved the blood transfusion treatment
orders made. On further appeal, the Supreme Court of Canada dismissed the case
by a 6-1 majority.
2.122
The leading joint judgment of four of the judges of the Supreme Court of
Canada in the AC case, LeBel,
Deschamps, Abella and Charron JJ, was delivered by Abella J. Abella J described the mature minor
rule as a recognition by the common law that children are entitled to a degree
of decision-making autonomy that reflects their evolving intelligence and
understanding.[212] The
evolutionary and contextual character of maturity makes it difficult to define
and evaluate, yet the right of mature adolescents to have their medical
decision making ability valued means that an assessment of maturity must be
undertaken with respect and rigour.[213]
Abella J stated:
“It is a
sliding scale of scrutiny, with the adolescent’s views becoming increasingly
determinative depending on his or her ability to exercise mature, independent
judgement. The more serious the nature of the decision, and the more severe its
potential impact on the life or health of the child, the greater the degree of
scrutiny that will be required.”[214]
2.123
In her judgment in the AC
case, Abella J reviewed the development of the “mature minor” rule in the
wake of the UK House of Lords decision in Gillick v West Norfolk and
Wisbech Area Health Authority,[215] discussed above, noting that it had
been applied on many occasions in the Canadian courts. She also referred to the
extensive literature on child development and adolescence, which the Commission
has already referred to briefly in this Report. In this respect, Abella J
notably considered that the mature minor rule must be carried out in tandem
with a best interests test. She also noted that respect for the autonomy of the
person under 16 must not be equated with accepting the views of that person in
all instances. Abella J commented:
“There is considerable support for the notion that while many
adolescents may have the technical ability to make complex decisions, this does
not always mean they will have the necessary maturity and independence of
judgment to make truly autonomous choices. As Jane Fortin significantly
observes: ‘... cognitive capacity to reach decisions does not necessarily
correlate with “mature” judgment’ (Children’s Rights and the Developing Law
(2nd ed. 2003), at p. 73)...
Clearly the factors that may affect an adolescent’s ability to exercise
independent, mature judgment in making maximally autonomous choices are
numerous, complex, and difficult to enumerate with any precision. They include
‘the individual physical, intellectual and psychological maturity of the minor,
the minor’s lifestyle [and] the nature of the parent-child relationship’
(Manitoba Law Reform Commission, Minors’ Consent to Health Care, p. 32).
While it may be relatively easy to test cognitive competence alone, as the
social scientific literature shows, it will inevitably be a far more
challenging exercise to evaluate the impact of these other types of factors. The
difficulty and uncertainty involved in assessing maturity has prompted some
experts to suggest that children should be entitled to exercise their autonomy
only insofar as it does not threaten their life or health.” [216]
2.124
The approach of Abella
J in the AC case reflects, therefore, the literature on child
development and adolescence, namely, that (a) the technical or cognitive
capacity of adolescents to make decisions does not necessarily mean their
decisions will always be mature; (b) many complex and varying factors must be
considered in determining whether a particular person under 16 is capable of
making mature judgements; and (c) while the growing maturity of the person must
be taken into account as they reach young adulthood, where their immediate
health or life is at issue the court must assess on an objective basis what is
in their “best interests.”
2.125
Abella J then applied
this approach in concluding that the “best interests” test in section 25(8) of
the Manitoba Child and Family Services Act was not in conflict with AC’s rights under the 1982
Canadian Charter of Rights and Freedoms. She accepted that any
legislation would be “inherently
arbitrary” if it deprived an adolescent under the age of 16 the opportunity to
demonstrate sufficient maturity, but that this was not the situation in this
instance. Abella J stated:[217]
“... the “best interests” test referred to in s. 25(8) of the [Manitoba
Child and Family Services Act], properly interpreted, provides that a young person is entitled to a
degree of decisional autonomy commensurate with his or her maturity. The result
of this interpretation of s. 25(8) is that adolescents under 16 will have the
right to demonstrate mature medical decisional capacity. This protects both the
integrity of the statute and of the adolescent. It is also an interpretation
that precludes a dissonance between the statutory provisions and the [1982
Canadian Charter of Rights and Freedoms], since it enables adolescents to participate
meaningfully in medical treatment decisions in accordance with their maturity,
creating a sliding scale of decision-making autonomy. This, in my view,
reflects a proportionate response to the goal of protecting vulnerable young
people from harm, while respecting the individuality and autonomy of those who
are sufficiently mature to make a particular treatment decision.”
2.126
Abella J noted in this
respect that the “best interests” test had also been included in the 1989 UN
Convention on the Rights of the Child, discussed above, to which Canada (like
Ireland) is a State party. In the Commission’s view, Abella J’s analysis is
entirely consistent with the comparable approach taken by the Irish Supreme
Court in the McK case and the Irish High Court in the D case,
discussed above. It is also consistent with the analysis in the English cases
such as Hewer and Gillick, also discussed above.
2.127
Bearing in mind that
Abella J surveyed the general literature on child development and adolescence
that had emerged since the mid 1980s (when the Gillick case was
decided), the Commission notes that she also set out a list of 7 factors which
could be taken into account in this respect. Abella J stated: [218]
“[T]he evolutionary and contextual character of maturity makes it
difficult to define, let alone definitively identify. Yet the right of mature
adolescents not to be unfairly deprived of their medical decision-making
autonomy means that the assessment must be undertaken with respect and rigour.
The following factors may be of assistance:
[1] What is the nature, purpose and utility of the recommended medical
treatment? What are the risks and benefits?
[2] Does the adolescent demonstrate the intellectual capacity and
sophistication to understand the information relevant to making the decision
and to appreciate the potential consequences?
[3] Is there reason to believe that the adolescent’s views are stable
and a true reflection of his or her core values and beliefs?
[4] What is the potential impact of the adolescent’s lifestyle, family
relationships and broader social affiliations on his or her ability to exercise
independent judgment?
[5] Are there any existing emotional or psychiatric vulnerabilities?
[6] Does the adolescent’s illness or condition have an impact on his or
her decision-making ability?
[7] Is there any relevant information from adults who know the
adolescent, like teachers or doctors?”
2.128
Abella J emphasised
that this list of 7 factors was not intended as a mandatory formula, but
instead was intended “to assist courts in assessing the extent to which a child’s
wishes reflect true, stable and independent choices.” The Commission agrees
that this is the correct approach to take in what is a complex area. The
Commission also notes that these 7 factors have at least three important
benefits: (a) they clearly take a rights-based approach to assessing the
competence of decision-making of mature minors, those under 16; (b) they
acknowledge the many factors that should be taken into account in respect of
medical treatment, including an objective assessment of the “best interests” of
those under 16; and (c) they are more than an updated version of the “Fraser
Guidelines” from the Gillick case, because they are not confined to the
narrow issue discussed in Gillick of access to the contraceptive pill.
In the Commission’s view, therefore, the analysis by Abella J in the AC case
constitutes a very useful basis on which to formulate specific recommendations
concerning those “mature minors” under 16, to which the Commission turns in
Part D, below.
2.129
In Australia, there has
also been a gradual move towards conferring full capacity on persons from 16
years of age, in particular in respect of medical treatment. In addition, for
those under 16 years of age, the common law in Australia mirrors the mature
minor approach developed in England, Scotland, Canada and New Zealand.
2.130
Legislation on the
subject of young people’s capacity to consent to medical treatment has also
been enacted in New South Wales and South Australia.[219]
2.131
In 1992, in Secretary, Dept of Health and Community Services v
JWB,[220] the High
Court of Australia developed a mature minor rule. The joint judgment for the Court (of
Mason CJ, Dawson, Toohey and Gaudron JJ) approved the general approach taken by the majority of the UK House of
Lords in Gillick v West Norfolk and Wisbech Area Health Authority,[221] which has been discussed in detail
above. The High Court of Australia stated:
“The
proposition endorsed by the majority in that case [Gillick] was that
parental power to consent to medical treatment on behalf of a child diminishes
gradually as the child’s capacities and maturity grow and that the rate of
development depends on the individual child... This approach although lacking
the certainty of a fixed age rule, accords with experience and psychology... It
should be followed in this country as part of common law.”
2.132
The Court also referred briefly to refusal of treatment, but did not
endorse the principles laid down by the English Court of Appeal in Re R and
Re W, discussed above. The joint judgment for the Court contained
this footnote referring to Re R but also citing criticism of the Court
of Appeal’s decision:
“As to the priority of parental rights and the capacity of a
child to refuse medical treatment for mental illness, see In Re R... But
also see the comment on Lord Donaldson’s judgment by Bainham in ‘The Judge and
the Competent Minor’...”
2.133
The status of a minor to refuse medical treatment therefore remains
unclear in Australian law, but as in the UK and Ireland a court may, using its
inherent jurisdiction (the equivalent of the old parens patriae jurisdiction),
override a young person’s refusal of treatment.
2.134
In relation to life-sustaining treatment, the Supreme Court of Western
Australia decided in 2004, in Minister for Health v AS,[222]
that the court will almost always override a child’s decision to refuse
life-sustaining or life-prolonging treatment, in accordance with the child’s
best interests. Pullin J stated that the court’s power using its inherent
jurisdiction to countermand the wishes of a child patient is to be exercised
sparingly and with great caution, but that there are cases where it is
necessary to do so. He added that the views of the child are of course relevant
to the best interests analysis and the court would exercise great caution in
overturning them, but that these wishes alone shall not be determinative.
2.135
The Commission notes that this approach is broadly in line with the view
taken in the states already reviewed, including Ireland, and with the specific
guidance set out by Abella J in the Canadian case AC v Manitoba (Director of
Child and Family Services).[223]
2.136
The move towards a 16
year old reference point for determining capacity to consent, in particular in
the context of health care treatment, is also evident in New Zealand. Section
36 of the New Zealand Care of Children Act 2004 states:
“A consent, or
refusal to consent, to any of the following, if given by a child of or over the
age of 16 years, has effect as if the child were of full age:
(a)
any donation of blood
by the child
(b)
any medical, surgical
or dental treatment or procedure (including a blood transfusion... ) to be
carried out on the child for the child’s benefit by a person professionally
qualified to carry it out.”
2.137
Section 36 of the 2004
Act uses the word “benefit”, which is not limited by any qualification, so that
this may not be restricted to a health benefit.[224]
The 2004 Act clearly states that young people aged 16 and 17 years of age can
consent to or refuse medical treatment. Furthermore, their decision cannot be
overridden by a parent or guardian. The medical practitioner is not required to
assess the capacity of the 16 or 17 year old in question, rather capacity is
presumed.
2.138
It is not clear whether parents retain a co-existing right to consent to
or refuse medical treatment for their 16 year old child. In light of the
Australian and Canadian jurisprudence, it is unlikely that New Zealand courts
would recognise concurrent rights of consent retained by parents of a competent
child. Section 30 of the 2004 Act states that the High Court and Family Courts
have concurrent jurisdiction in respect of children and may make an order
placing a child under the guardianship of the court, either generally or for
any particular purpose, such as obtaining consent for medical treatment.[225]
2.139
Section 36 of
the 2004 Act does not refer to
the capacity of young people under the age of 16 to consent to medical
treatment. As is the case in the other countries discussed above, it has been
suggested that the common law rights of a “mature minor” under 16 in relation
to medical treatment have not been limited by statutory provisions such as the
2004 Act and that:
“the
better view is that minors’ common law capacity to consent to medical treatment
has not been extinguished by the New Zealand legislation, and that the consent
of those under the age of 16 will sometimes be effective in law.”[226]
2.140
It appears that, in practice, there is acceptance by the medical
profession of a capacity-based approach to consent.[227]
In addition, as with the other countries discussed above, it seems likely that,
in a situation where the life of a minor was threatened by the refusal of
medical treatment, the courts would intervene and authorise the treatment.
Section 11 of the New Zealand Bill of Rights Act 1990, which applies
equally to children, states that everyone has the right to refuse to undergo
any medical treatment. This is subject, however, to section 5 which states that
rights and freedoms may be subject to reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society.[228]
2.141
In this Part, the Commission
sets out its recommendations concerning consent to and refusal of medical
treatment for those under 18. The Commission’s approach is that this
should be as consistent as possible with the proposed reform of the law on
mental capacity for those over 18, and the Commission therefore favours a
functional test of capacity.
The Commission sets out its recommendations concerning 16 and 17 year olds
first, and then sets out separately its recommendations for those under 16.
2.142
As already noted in
this Report, in its 2006 Report on Vulnerable Adults and the Law,[229]
which contained a draft Scheme of a Mental Capacity Bill, the Commission recommended that
mental capacity legislation should be enacted which would include a presumption
of capacity for any person aged 18 years or more and that this legislation
should also include a functional test of capacity. As explained in the 2006
Report, the Commission favours the functional approach to capacity because this
is consistent with an approach based on the individual’s personal rights and
also determines whether the person understands the specific decision being
considered at the time it is being made, whether this involves buying a house
or undergoing medical treatment. It is also consistent with the right-based
approach in the 2006 UN Convention on the Rights of Persons with
Disabilities. The Commission
notes that the Government’s Scheme of a Mental Capacity Bill 2008,[230]
which is intended to implement the Commission’s 2006 Report, also adopts the
functional approach to capacity. The Commission is also conscious that
the Government is committed to publishing by the end of 2011 a Mental
Capacity Bill that is consistent with the 2006 UN Convention.[231]
2.143
In the 2006 Report, the
Commission rejected the use of a “status approach” to determining capacity. The
status approach involves making a decision on a person’s legal capacity based
on the presence or absence of certain characteristics, such as age or mental
illness. This approach (which is reflected in some current legislation such as
the Lunacy Regulation (Ireland) Act 1871) has been replaced in many
states, notably because the “status approach” involves making a long term
judgement on a person’s capacity, based on a once-off examination of their
status that often applies indefinitely into the future.
2.144
The Commission
considers that the proposals in this Report must be as consistent as possible
with this wider context of proposals to introduce a modern statutory framework
on mental capacity and decision-making for those over 18. The Commission notes that the functional test
of capacity is also consistent with the recognition of the rights of children
in the Constitution of Ireland, discussed above. It is also consistent with the
relevant international human rights standards in this area, notably those in
the 1989 UN Convention on the Rights of the Child (UNCRC).
2.145
The Commission has
already noted that the Oireachtas has accepted in section 23 of the Non
Fatal Offences Against the Person Act 1997 that, in connection with medical
and healthcare decisions, 16 and 17 year olds should be presumed to have
capacity to consent to medical treatment (albeit the 1997 Act is limited to the
criminal law sphere). The Commission has also noted that the decision of
the Supreme Court in McK v Information Commissioner,[232]
which arose in a health care setting, held that the views of a young person who
is over 17 “are very relevant”[233]
and that they may sometimes override a parent’s presumed entitlement to be able
to access health care information concerning their children.
2.146
Having regard to the
comparative analysis in Part C, it is clear that the approach in the 1997 Act
has been replicated in virtually every State surveyed in the context of
potential civil liability, sometimes by way of court decisions but increasingly
in terms of legislation that deals specifically with consent to, and refusal
of, health care treatment. The Commission therefore reiterates here the
suitability of a functional approach to capacity for 16 and 17 year olds in the
context of potential civil liability concerning health care treatment.
2.147
Following the
publication of the Consultation Paper,[234]
the submissions received by the Commission broadly supported the provisional
recommendations in respect of 16 and 17 year olds. The Commission notes that
these submissions, and existing practice as evidenced by the Medical Council’s
2009 Guide to Ethical Conduct and Behaviour, have taken the view that
section 23 of the Non Fatal Offences Against the Person Act 1997,
although confined to the criminal law sphere, should be seen as setting the
correct general approach, namely, that 16 and 17 year olds have capacity to
consent to medical treatment. Indeed, the submissions suggested that, since
section 23 of the 1997 Act greatly resembled comparable statutory provisions in
other countries that apply both in the criminal law and civil law context, it
would assist all those involved – 16 and 17 year olds, parents, guardians and
health care professionals – to have the position in Irish law clarified in this
manner.
2.148
The Commission notes
that this analysis reflects the picture in many other countries, including
those already discussed, where legislation has provided for many years that 16
and 17 year olds should be deemed fully competent both to consent to, and to
refuse, medical treatment. Indeed, many countries, including Scotland, have
moved beyond the area of medical treatment to reduce the age of majority from
18 to 16, so that 16 and 17 year olds have the status of adults in those
countries and have general competence in respect of virtually all
decision-making that affect them.
2.149
The Commission notes
that the submissions received also supported the view expressed in the
Consultation Paper, that this approach should apply to consent to, and refusal
of, treatment. The Commission agrees that issues of consent and refusal should
not be treated differently, as the literature, clinical practice and case law
in this area generally treats refusal as the corollary of consent. Indeed, as
many of the leading court decisions discussed above indicate, to treat them
differently would create an unworkable distinction because the standard needed
to satisfy the capacity test would rise, or fall, in accordance with whether a
person was consenting to or refusing treatment. For this reason, the Commission
has concluded, and recommends, that the general recommendation concerning 16
and 17 year olds should apply to consent to, and refusal of, treatment.
2.150
The Commission
reiterates here that this project and Report is confined to health care
decision-making rather than this wider scope of decision-making. It is
sufficient to note for the purposes of this project and Report that, as far as
health care treatment is concerned, virtually all countries have taken the
view, both in terms of health care practice and the relevant legislative
framework, that a 16 year old and 17 year old should, in general, be regarded
as competent to consent to, and refuse, medical treatment. This approach
reflects the well-documented literature that this age group has reached a state
of sufficient understating and maturity that there should be a presumption that
they have the capacity to make these decisions independently, and therefore on
the same basis (at least for this purpose, whatever about the wider debate as
to reducing the general age of majority to 16) as an 18 year old who, under the
current law, has reached the age of majority (that is, adulthood).
2.151
The Commission has
therefore concluded, and recommends, that legislation should clearly provide
that, in general, a person who is 16 or 17 years of age is presumed to have
capacity to consent to, and refuse, health care treatment. The effect of this
is to clarify that, for the purposes of civil liability – section 23 of the Non
Fatal Offences Against the Person Act 1997 already deals with criminal
liability – a 16 and 17 year old is presumed to have the same capacity, as far
as health care is concerned, as an 18 year old has under the current law. The
Commission considers that the current wording of section 23 of the Non Fatal
Offences Against the Person Act 1997 provides a useful statutory precedent
in this respect, subject to the need to provide that: (a) the proposed
statutory framework would apply to the civil liability setting and (b) that it
would, in general, deal with refusal of treatment and not merely consent to
treatment. On this basis, the Commission therefore recommends that the proposed
statutory framework should provide that a minor aged 16 years of age is
presumed to have the capacity to consent to, and to refuse, any health care
treatment, as already defined in this Report; that this capacity is, in the context
of any potential civil liability, as effective as it would be if he or she were
of full age, that is 18 years of age; and that where a minor has given such an
effective consent to, or refused, any such treatment it shall not be necessary
to obtain any consent for it, or refusal of consent for it, from his or her
parent or guardian.
2.152
As a result, in general
terms, a 16 and 17 year old would not be subject to any countervailing test,
such as whether the specific treatment is in their “best interests.” The
Commission notes that, since the 16 and 17 year old – like an 18 year old under
the present law – will be presumed to have capacity, this would be
subject to contrary evidence that the person lacks capacity. As already noted,
many of the legislative provisions enacted in other countries in this area
provide for this situation. Thus, if it is proved on the balance of
probabilities (the standard of proof in civil cases) that a 16 or 17 year old
does not have capacity to make a particular healthcare decision, his or
her parents or guardians will, in general terms, retain the entitlement to make
the healthcare decision on his or her behalf in accordance with the provisions
of the Constitution and relevant international instruments concerning the role
of parents and guardians and the general principles already set out in Chapter
1 of this Report. In addition, as discussed below, the “best interests” test
may be applicable where life sustaining treatment is involved or where a person
under 16 is involved.
2.153
This general approach
is, of course, subject to certain other existing legislative limits and
requirements. This includes existing requirements in, for example, the Control
of Clinical Trials Act 1987, the European Communities (Clinical Trials on Medicinal Products for Human
Use) Regulations 2004,[235]
the Child Care Act 1991 or the Mental Health Act 2001. The
Commission is also conscious that planned legislation may also affect this general
approach, such as the proposed Human Tissue Bill, the proposed Health
Information Bill[236] or any
proposal, for example, to regulate access to sunbeds for those under 18.
2.154
The Commission accordingly
recommends that, having regard to the general principles already set out in
this Report, the proposed legislative framework on health care treatment should
provide that, in general, a person who is 16 or 17 years of age is presumed, in
the context of any potential civil liability, to have capacity to consent to,
and refuse, health care treatment, as already defined in this Report; that this
capacity is as effective as it would be if he or she were of full age, that is
18 years of age; that the presumption of capacity is subject to contrary
evidence that the person lacks capacity; and that where a 16 or 17 year old has
given such an effective consent to, or refused, any such treatment it shall not
be necessary to obtain any consent for it, or refusal of consent for it, from
his or her parent or guardian. The Commission also recommends that this is
subject to certain other existing legislative limits and requirements,
including existing requirements in, for example, the Control of
Clinical Trials Act 1987, the European Communities (Clinical Trials on Medicinal Products for Human
Use) Regulations 2004,[237]
the Child Care Act 1991 and the Mental Health Act 2001. The Commission
also recommends that this should also have regard to planned legislation, such
as the proposed Human Tissue Bill, the proposed Health
Information Bill or any proposal, for example, to regulate access to
sunbeds for those under 18.
2.155
The Commission
recommends that, having regard to the general principles already set out in
this Report, the
proposed legislative framework on health care treatment should provide that, in
general, a person who is 16 or 17 years of age is presumed, in the context of
any potential civil liability, to have capacity to consent to, and refuse,
health care treatment, as already defined in this Report; that this capacity is
as effective as it would be if he or she were of full age, that is 18 years of
age; that the presumption of capacity is subject to contrary evidence that the
person lacks capacity; and that where a 16 or 17 year old has given such an
effective consent to, or refused, any such treatment it shall not be necessary
to obtain any consent for it, or refusal of consent for it, from his or her
parent or guardian. The Commission also recommends that this is subject to
certain other existing legislative limits and requirements, including existing
requirements in, for example, the Control of Clinical Trials Act 1987, the
European Communities (Clinical Trials on Medicinal Products for Human Use)
Regulations 2004, the Child Care Act 1991 and the Mental Health Act 2001. The
Commission also recommends that this should also have regard to planned legislation,
such as the proposed Human Tissue Bill, the proposed Health Information Bill or
any proposal, for example, to regulate access to sunbeds for those under 18.
2.156
It is important to
state that, in the majority of situations where a 16 and 17 year old either
consents to or refuses treatment, the consequences of such a decision are not
life threatening. The Commission accepts that while, in general, consent and
refusal should be treated similarly, additional considerations need to be taken
into account where life-sustaining treatment is refused.
2.157
In this respect, the
Commission notes that, in its 2006 Report on Vulnerable Adults and the Law,[238]
the Commission recommended that the issue of life sustaining treatment
concerning persons over 18 years of age should be subject to specific statutory
rules. Equally, in its 2009 Report on Bioethics: Advance Care Directives,[239]
the Commission concluded that advance care directives involving refusal of
life-sustaining treatment should involve specific treatment. This reflects the
Commission’s general approach that the law in this area should operate on the
basis of a presumption in favour of life, and this in turn is derived from the
important and high status given to the right to life in the Constitution of
Ireland and, indeed, in international human rights documents such as Article 2
of the Council of Europe’s 1950 Convention on Human Rights and Fundamental
Freedoms.
2.158
This approach is also
consistent with the approach taken in the Canadian cases discussed above and in
the legislative provisions in other countries where this matter has been
specifically addressed, as also discussed above. These cases and legislative
provisions involve an assessment of the capacity of a person under 18, and they
then apply an objective best interests standard in a way which ensures that the
judgement of a child’s best interests is informed in a real and meaningful way
by the voice of the child.
2.159
In the current project
and Report, the Commission reiterates this approach, and therefore recommends
that in cases where an individual under the age of 18 refuses life sustaining
treatment, an application should be made to the High Court to adjudicate on the
refusal. In such a case, the High Court could intervene to order treatment that
is necessary to save life and where this is in the best interests of the young
person. In the event of such an application, the Commission also recommends
that the person under 18 shall be separately represented.
2.160
The Commission
recommends that, in the context of refusal of life sustaining treatment by a
person under the age of 18, an application may be made to the High Court to
determine the validity of the refusal. The High Court may order treatment that
is necessary to save life and where this is in the best interests of the person
under 18 years of age. The Commission also recommends that in any such
application the person under 18 shall be separately represented.
2.161
In the 2009 Report on Bioethics: Advance Care Directives the
Commission defined the term “advance care directive” as the advance expression
of wishes by a person, at a time when they have the capacity to express their
wishes, about certain treatment that might arise at a future time when they no
longer have the capacity to express their wishes.[240]
The Commission recommended in the 2009 Report that, consistently with the
Council of Europe 2009 Recommendation on Principles Concerning Continuing
Powers of Attorney and Advance Directives for Incapacity,[241]
a legislative framework for advance care directives for those aged 18 and over
should be enacted in the context of proposed mental capacity legislation. The
Commission also noted that advance care directives are not restricted to
end-of-life settings but can also arise in a continuing-life setting.[242]
In addition, it is important to point out that advance care directives be seen
in the wider setting of overall health care planning (which is not confined to consent to or refusal of
medical treatment), particularly in the context of children and young
people dealing with long term illness.
2.162
The Commission
reiterates here the view expressed in the Consultation Paper that those under
18 with capacity should not be denied the opportunity to engage fully in
healthcare planning by way of making an advance care directive. In light of the
general approach taken above concerning 16 and 17 year olds, the Commission has
concluded, and recommends, that a 16 and 17 year old should be presumed to have
capacity to make an advance care directive. The Commission also reaffirms the
view it expressed in the Consultation Paper that an assessment of a minor and
young person by a trained and experienced health care professional is crucial
in determining capacity, rather than assuming capacity – or lack of capacity –
purely on the basis of age. As the literature on child development discussed in
Chapter 1 illustrates, one cannot disregard the experience of an
individual in respect of the particular healthcare decision. In that respect
the literature supports the view that personal experience and understanding are
relevant and often determinative of a particular child or young person’s
ability to understand and make informed decisions regarding his or her health
care. This point was echoed in a number of submissions received by the
Commission, which stressed the importance of the individual’s particular
experience and capacity to make an advance care directive.
2.163
The Commission
therefore recommends that the legislation proposed in this Report should
provide that a 16 or 17 year old is presumed to have capacity to make an
advance care directive. The Commission also recommends that where an advance
care directive is being considered by or for a 16 and 17 year old a specific
assessment be made by a trained and experienced health care professional of
that person’s capacity to understand the nature and consequences of the advance
care directive.
2.164
The Commission
recommends that the legislation proposed in this Report should provide that a
16 or 17 year old is presumed to have capacity to make an advance care
directive. The Commission also recommends that where an advance care directive
is being considered by or for a 16 and 17 year old a specific assessment be
made by a trained and experienced health care professional of that person’s
capacity to understand the nature and consequences of the advance care
directive.
2.165
The Commission has
already noted that the decisions of the Supreme Court in McK v
Information Commissioner[243] and of the
High Court in D v Brennan
and Ors[244] recognise
that a mature minor under the age of 16 is capable, under Irish law, of making significant
health care decisions as an independent rights holder. This reflects the
general principle stated by Walsh J in G v An Bord Uchtála[245] that the rights of
children are “independent of
any right of the parent as such.” This approach is also seen in specific
statutory provisions that have regard to the “maturity and understanding” of a
child, such as the provisions discussed in the Child Care Act 1991 and
the Adoption Act 2010.
2.166
This approach in
Irish law is consistent with the reality of the growing maturity of children as
they reach adolescence and early adulthood, which is reflected in the general
literature in this area discussed by the Commission in Chapter 1. It is also
clear that, in this respect, Irish law reflects developments in other
countries, including the views expressed in 1969 in the English case Hewer v
Bryant[246] that the
authority of parents in respect of their children “starts with a right of
control and ends with little more than advice.” The generality of that
statement has given rise to the development of the “mature minor” test in
decisions such as those of the UK
House of Lords in Gillick v West Norfolk and Wisbech Area Health
Authority[247] and of the Supreme Court of
Canada in AC v Manitoba (Director of Child and Family Services).[248]
The more recent decisions, such as the Canadian decision AC case, have
also specifically taken into account the relevant international human rights
standards in this area, notably the 1989 UN Convention on the Rights of the
Child (UNCRC).
2.167 The Commission reiterates here its
view that, in general, the law should apply a functional test of capacity to
those under 18. The Commission considers, however, that a presumption of
capacity should not apply to those under 16, so that it is necessary to clarify
how to assess the maturity and understanding of those individuals. In this respect,
the Commission acknowledges that the Medical Council’s 2009 Guide to Professional Conduct and Ethics[249]
provides a useful starting point. As already noted, the 2009 Guide,
though necessarily confined to providing guidance to doctors, reflects in
general terms the current law as set out in the Irish decisions already
referred to, such as the G, McK and D cases, which in turn
reflect the provisions on the family in Articles 41 and 42 of the Constitution and
in the relevant international standards already discussed in this Report. Thus,
the 2009 Guide correctly identifies that the “usual” position is that parents
should be asked for their consent, but that in “exceptional circumstances” the
doctor would “encourage” the under 16 year old to involve their parents,
bearing in mind the doctor’s “paramount responsibility to act in the patient’s
best interests.” While this general guidance is useful, the Commission notes
that it does not provide specific guidance on the nature of the “best
interests” test. Nor does it refer to a maturity test, which as the Commission
has already noted is currently part of Irish law (through both the case law and
legislation already noted in this Report).
2.168 As the Commission has already noted, in a 2009 study
of GPs in Ireland,[250] it is
clear that, in the absence of detailed professional guidance, the “Fraser
Guidelines” from the Gillick case are viewed as persuasive guidance by a
significant number of GPs and healthcare practitioners. Since the “Fraser
Guidelines” have formed the basis for the authoritative guidance documents
published in England and Wales (1986 and 2004), Northern Ireland (2003) and
Scotland (2006), discussed above, it is not surprising that health care
professionals in Ireland would be influenced by these developments. The
Commission notes that while the “Fraser Guidelines” provide helpful and
detailed criteria for assessing maturity and related matters, they are restricted
to the specific issue that arose in the Gillick case, namely, the
provision of contraception. By contrast, the authoritative guidance documents
from other countries discussed above involve an analysis of issues of capacity,
maturity and best interests in the broader context of heath care
decision-making generally, and also against the background of the relevant
international human rights standards that have developed since the mid 1980s.
In this respect, the Commission notes that more recent analysis, such as that
by the Supreme Court of Canada in AC v Manitoba (Director of Child
and Family Services),[251] provides a
more complete reference point for the development of guiding principles in this
area.
2.169
The Commission has already set out in Chapter 1 the relevant general
guiding principles that apply to this area, in particular the
inter-relationship between the rights of children, the rights of parents and
guardians and the application of a rights-based “best interests” test. In
addition, the Commission considers that the “sliding scale” referred to by the
Canadian decision in AC v Manitoba (Director of Child and Family Services)[252]
is especially relevant in the context of persons under the age of 16 because the interpretation of what is in the
best interests of a person under 16 is aided by the sliding scale approach.
This means that there is a scale of scrutiny or analysis against which a
child’s best interests is measured. The maturity of the child and the decision
to be made are both factors which are fed into the sliding scale. In Ireland,
as the Commission has already noted, the Supreme Court in McK v
Information Commissioner[253] has
recognised that the views of
the person under 16 become increasingly determinative as he or she matures so
that the greater the child’s level of maturity the greater the weight granted
to the child’s views. This is balanced against the specific decision to be
made, because the more serious the nature of the decision and the more severe
its potential impact on the health and well being of the child, the greater the
degree of scrutiny required.
2.170
Consistently with this
approach, and in light of the submissions received since the publication of the
Consultation Paper, the Commission has also concluded that, for those under the
age of 16, the law should not set out a detailed, prescriptive, legislative
framework that would differentiate between, for example, those aged 14 and 15
and those under the age of 14. In this respect, the Commission agrees with the
submissions received that the suggestion in the Consultation Paper that a
distinction might be drawn between those aged 14 and 15, on the one hand, and
those under 14, on the other hand,[254]
would not be practicable and would, rather, run the risk of leading to
increased complexity for all those involved in this area, whether those under
16, their parents or guardians as well as professional heath care providers. In
preparing this Report, the Commission also accepts that such a prescriptive
approach, in which age rather than maturity was the determining factor, does
not reflect the literature on child development (which the Commission discussed
in Chapter 1) and the reality of gradual maturing and understanding during
adolescence.
2.171
The Commission has
therefore concluded, and recommends, that for those under 16, a non-prescriptive
approach be taken in which the proposed legislative framework should not
include a presumption of capacity for those under 16, but should provide that
he or she may consent to, and refuse, health care treatment where it is
established that the person under 16 has the maturity and understanding to
appreciate the nature and consequences of the specific health care treatment
decision. The Commission also recommends that, in the case of health care
treatment involving those under 16, the usual situation should be that parents
or guardians, who have the primary responsibility for the upbringing and
development of children (as
provided for in Article 42.1 of the Constitution and Article 18 of the
1989 UN Convention on the Rights of the Child (UNCRC)), are involved in the decision-making process.
The Commission also recommends that the person under 16 should be encouraged
and advised to communicate with and involve his or her parents or guardians, as
already provided for in the Medical Council’s 2009 Guide to Professional
Conduct and Ethics.[255] The
Commission therefore also recommends that it is only in “exceptional”
circumstances (the term used in Article 42.5 of the Constitution, and in
authoritative published guidance such as the 2003 Northern Ireland Reference
Guide to Consent for Examination, Treatment or Care,[256] discussed
above), and 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,
that health care treatment would be provided for those under 16 without the
knowledge or consent of parents or guardians.
2.172
The Commission also
recommends that the “sliding scale” test and the 7 specific factors identified
by the Supreme Court of Canada in 2009 in AC v Manitoba (Director of
Child and Family Services)[257]
should also be incorporated into the proposed statutory framework. As the
discussion of the AC in this Report illustrates, the analysis by the Supreme Court of Canada in 2009 took
account of relevant international human rights standards that have been put in
place in recent years, notably the 1989 UN Convention on the Rights of the
Child. This rights-based approach also reflects the Commission’s approach, which is itself consistent with the
law in Ireland on the respective rights of children and parents already
discussed in this Report. The approach in the AC case has adopted a more
wide-ranging analysis when compared with the limited scope of the circumstances
that the UK House of Lords were required to deal with in 1985 in Gillick
v West Norfolk and Wisbech Area Health Authority.[258] In that respect, the analysis in the AC case
reinforces the reality that the “mature minor” rule is more wide-ranging in
scope than the prescribing of the contraceptive pill. Indeed, in 1969, an early
version of the “mature minor” rule was applied by the English Court of Appeal in Hewer v Bryant[259]
in the context of the application of limitation periods in a personal
injuries claim.
2.173
The Commission
accordingly recommends that the proposed legislative framework should provide
that, in determining whether a minor under 16 has the maturity and capacity to
consent to, and to refuse, health care treatment as already defined in this
Report, the following factors should be taken into account:
(a) whether he or she has sufficient maturity to understand the
information relevant to making the decision and to appreciate its potential
consequences;
(b) whether his or her views are stable and a true reflection of his or
her core values and beliefs, taking into account his or her physical and mental
health and any other factors that affect his or her ability to exercise
independent judgement;
(c) the nature, purpose and utility of the treatment;
(d) the risks and benefits involved in the treatment, and
(e) any other specific welfare, protection or public health
considerations, in respect of which relevant guidance and protocols such as the
2011 Children First: National Guidelines for the Protection and Welfare of
Children (or any equivalent replacement document)[260]
must be applied.
2.174
The Commission
recommends that the proposed legislative framework should not include a
presumption of capacity for those under 16, but should provide that a person
under 16 may consent to, and refuse, health care treatment where it is
established that he or she has the maturity and understanding to appreciate the
nature and consequences of the specific health care treatment decision. The
Commission also recommends that, in the case of health care treatment involving
those under 16, the usual situation should be that parents or guardians, who
have the primary responsibility for the upbringing and development of
children, are involved
in the decision-making process; that the person under 16 should be encouraged
and advised to communicate with and involve his or her parents or guardians;
and that, therefore, it is only in exceptional circumstances, and 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, that health care treatment would be
provided for those under 16 without the knowledge or consent of parents or
guardians.
2.175
The Commission also
recommends that the proposed legislative framework should provide that, in
determining whether a person under 16 has the maturity and capacity to consent
to, and to refuse, health care treatment as already defined in this Report, the
following factors are to be taken into account:
(a) whether he or she has sufficient maturity to understand the
information relevant to making the specific decision and to appreciate its
potential consequences;
(b) whether his or her views are stable and a true reflection of his or
her core values and beliefs, taking into account his or her physical and mental
health and any other factors that affect his or her ability to exercise
independent judgement;
(c) the nature, purpose and utility of the treatment;
(d) the risks and benefits involved in the treatment, and
(e) any other specific welfare, protection or public health
considerations, in respect of which relevant guidance and protocols such as the
2011 Children First: National Guidelines for the Protection and Welfare of
Children (or any equivalent replacement document) must be applied.
2.176
The Commission
emphasises that the proposed statutory framework, including the guiding principles
set out in Chapter 1 and the specific matters set out in this Part, should be
facilitative. This is consistent with the Commission’s approach it its 2009 Report
on Bioethics: Advance Care Directives.[261]
It means that the proposed statutory framework is intended to clarify the
position of all those involved in the process – those under 18, parents,
guardians and professionals – and that health care professionals who act in
good faith should not be at risk of any civil liability. Indeed, the risk of
potential civil liability was referred to in the 2009 study of Irish GPs
discussed above.[262] In this
respect, and having regard to the submissions received since the publication of
the Consultation Paper, the Commission has concluded, and therefore recommends,
that the proposed statutory framework should include, in respect of potential
civil liability, a defence of good faith for health care practitioners who
treat children and young people under 18 years of age. Section 23 of the Non-Fatal
Offences Against the Person Act 1997 already provides a comparable defence
in terms of criminal liability. The Commission recommends that the defence
would apply to a health care practitioner who, acting in good faith and
exercising due diligence, makes a decision to provide medical treatment, or a
decision to withhold medical treatment, in respect of a child or a young person
under 18 years of age. The Commission also recommends that acting in good faith
and exercising due diligence would be defined as where the health care
professional acts consistently with the general principles and specific
matters, including as to assessment of capacity of those under 16, in the
proposed statutory framework.
2.177
The Commission recommends that the proposed
statutory framework should include, in respect of potential civil liability, a
defence of good faith for health care practitioners who treat children and
young people under 18 years of age. The Commission recommends that the defence
would apply to a health care practitioner who, acting in good faith and
exercising due diligence, makes a decision to provide medical treatment, or a
decision to withhold medical treatment, in respect of a child or a young person
under 18 years of age. The Commission also recommends that acting in good faith
and exercising due diligence would be defined as where the health care
professional acts consistently with the general principles and specific
matters, including as to assessment of capacity of those under 16, in the
proposed statutory framework.
2.178
The Commission has already noted in the Introduction to this Report[263]
that, ideally, through informed discussion and participation by all those
involved – those under 18,
parents, guardians and health care professionals – practical solutions and
consensus can be reached that respect the rights and interests of all those
involved. When this is not possible, however, it is important to have in place
a clear statutory framework. Given the complexities of the issues raised, which
is clear from the discussion in this Report, the proposed statutory framework
cannot provide definitive solutions to all the moral, legal, ethical and public
policy questions involved.
2.179
It is clear that, in
the countries surveyed in Part C, there is a recognised need to supplement any
general legislative framework with guidance material to provide detailed
guidelines that concern situations that arise in clinical practice. The
Commission notes that, in its 2006 Report on Vulnerable Adults and
the Law,[264] which contained a draft Scheme of a Mental
Capacity Bill, the Commission proposed that a statutory Code of Practice should be prepared and
published for the purpose of providing practical guidance on, for example, the
application in practice of the presumption of capacity and related matters.
Similarly, the Commission reiterated this approach in its 2009 Report on
Bioethics: Advance Care Directives[265]
concerning guidance as to the applicability and validity of advance care
directives. In the context of this Report, a statutory Code of Practice would
provide detailed guidance on complex issues of consent, refusal and
confidentiality, allowing health care professionals to treat children and young
people in a manner which recognises their rights and those of their parents and
guardians, while also enabling the practitioner to work in a manner which is
consistent with relevant ethics frameworks.
2.180
It is important to note
that complex medical situations involve circumstances which are specific and
personal to the particular individual with the particular medical concern. As
the many court decisions surveyed in this Report indicate, there are a range of
complex medical and ethical issues which patients and healthcare professionals
face on a daily basis, for example the refusal of blood products, the treatment
of anorexia, the dilemmas faced by patients coping with a terminal illness –
these examples reflect the diversity and difficulty inherent in health care decision
making, which is more pronounced when the patient concerned is under 18 years
of age. In this respect, the Commission notes that a number of models exist on
which to base any Code of Practice, such as the Guides developed in Northern
Ireland (2003), England and Wales (2004) and Scotland (2006) that have been
referred to and discussed in Part C, above. The Commission notes that a guide
such as the 2003 Northern Ireland Reference Guide to Consent for
Examination, Treatment or Care[266]
has the advantage of providing wide-ranging guidance on health care treatment
both for those over 18 and those under 18 within the general context of a
reformed law on mental capacity.
2.181
In addition to
providing needed practical guidance, another advantage associated with such
Codes of Practice is that they may be regularly revised, and thus provide an up
to date guide to health care practice and ethics, without the need to amend the
legislative framework.
2.182
The Commission
accordingly recommends that the Minister for Health and the Minister for
Children and Youth Affairs should establish a broad-based Working Group which
would assist the Ministers in preparing a Code of Practice in this area. The
Commission does not intend to set out a prescriptive list of those who might be
members of such a Working Group or who would be consulted in preparing the Code
of Practice, but clearly it would need to involve a wide range of bodies. Those
involved or consulted could include, for example, the Medical Council, the
Irish College of General Practitioners, the Irish College of Psychiatry, the
Mental Health Commission, An Bord Altranais, the Dental Council, the National
Parents Council, the HSE Crisis Pregnancy Programme, the Ombudsman for
Children, Headstrong (the National Centre for Youth Mental Health) and
Barnardos.
2.183
As with the possible membership of the Working Group that would assist
in preparing the Code of Practice, the Commission does not intend to set out a prescriptive list of
the range of health care treatment settings on which guidance should be
provided. It is sufficient to note that it would involve both physical and
mental health care settings. It could, therefore, provide guidance on:
· dental
care and treatment
· eye
care and treatment
· over-the-counter
medicine of specific relevance to adolescents, such as products related to skin
conditions
· prescription
for antibiotics
· prescription
for contraception
· advice
and counselling on general health and development
· counselling
and treatment concerning mental health
· prescription
for anti-depressants
· admission
to approved mental health care centre
· X
ray
· surgery
and treatment related to a broken arm
· surgery
for removal of the appendix
· surgery
and treatment connected to cancer
· surgery and treatment
connected with a chronic condition such as cystic fibrosis and
· paediatric research
and clinical trials.
2.184
The Commission has concluded, and therefore recommends, that the Minister for Children and Youth
Affairs, in consultation with the Minister for Health, should establish a
broad-based Working Group which would assist the Minister in preparing and
publishing a Code of Practice based on the principles in the proposed
statutory framework. The Commission also recommends that the Code of Practice would provide detailed
guidance as to the application of the proposed statutory framework in the
context of all forms of health care and treatment settings as already defined
in this Report.
2.185
The Commission recommends that the Minister for Children and Youth Affairs, in
consultation with the Minister for Health, should establish a broad-based
Working Group which would assist the Minister in preparing and publishing a
Code of Practice based on the principles in the proposed statutory
framework. The Commission also recommends that the Code of Practice would provide detailed
guidance as to the application of the proposed statutory framework in the
context of all forms of health care and treatment settings as already
defined in this Report.
3
3.01
In this chapter the
Commission discusses issues of capacity and healthcare decision-making
involving children and young people who engage with mental health services. The
Commission notes that the general principles and detailed recommendations set
out in Chapters 1 and 2 also apply in the context of mental health provision.
In this Chapter, the Commission’s discussion does not deal with mental health
law in general, but focuses primarily on the admissions process under the Mental
Health Act 2001. The Commission notes that the Programme for
Government 2011 to 2016 proposes a general review of the Mental Health
Act 2001 and the Commission considers that the recommendations made in this
Chapter could form part of that general review.[267] Part B
contains a brief overview of the extent of mental health issues involving
children and young people in Ireland and the appropriateness of available
services. Part C examines the rights of children and young people in the
context of mental health legislation and service provision. Part D discusses
the provisions of the Mental Health Act 2001 as they relate to children
and young people, including its shortcomings in this respect. Part E contains
the Commission’s recommendations for reform of the Mental Health Act 2001 as
it applies to children and young people, which includes recommending the
introduction of a new category of “intermediate” admission and treatment.
3.02
The extent of mental
health issues involving children and young people was discussed in detail in
the Consultation Paper, drawing on information and statistics from a range of
reports and research papers. Mental health issues were also raised by many
children and young people with whom the Commission consulted.[268]
3.03
Submissions received by
the Commission from young people have highlighted mental health as a subject of
particular concern, stating that not enough information and support is
available in this area. Young people have emphasised that relevant legislation
ought to look at the issue of mental health from a young person’s perspective,
and should aim to protect the young person, taking their best interests into
consideration.
3.04
A submission received
by the Commission suggested that a child or young person with experience of
mental illness be represented on the Mental Health Commission. The Commission
agrees that the experience and views of the child or young person would add
greatly to the work of the Mental Health Commission. This is discussed in more
detail below.
3.05
Children of any age can
suffer from a mental illness or mental health difficulties, but adolescence is
a typical time for the development of such problems. Headstrong, the National
Centre for Youth Mental Health, has estimated that in Ireland, at any given
time, one in five young people are experiencing serious emotional distress.
“Young people experiencing
mental health difficulties often imagine that everyone else is somehow managing
to cope and that they are in some way different or weird for feeling the way
they do. The reality is that mental health problems are a lot more common in
young people than most of us realise.”[269]
3.06
Adolescent mental
distress and concerns can have long term implications. The 2008 Annual Report
of the Child and Adolescent Mental Health Services (CAMHS) stated that
the majority of illnesses borne in childhood, and particularly in adolescence,
is caused by mental disorders. Furthermore, the majority of adult mental health
disorders have their onset in adolescence.[270]
The Report also stated that the prevalence of mental health disorders in young
people is increasing with time.[271]
3.07
The high rates of
suicide in Ireland have been well documented, with suicide considered as the leading
cause of death amongst young people.[272]
There is a strong link between suicide and self harm, as engaging in self harm
is the strongest predictor of future suicidal behaviour. The 2008 Report of the
National Registry of Deliberate Self Harm Ireland revealed a total of 11,700
presentations to hospitals in Ireland, an increase of 6% from 2007 figures.[273]
These figures do not include the numbers of people who engage in self harm
without receiving medical attention.
3.08
Deliberate self harm is
largely confined to younger age groups, particularly young women. The peak rate
for self-harm in relation to age and gender is found amongst young women aged
15-19.[274] The 2008
Report found that one in every 156 adolescent girls were treated in hospital as
a result of deliberate self harm. The Report also found an increase in
deliberate self harm amongst boys and girls aged 10-14 years.[275]
3.09
It is clear that
children and young people need appropriate, high-quality, accessible mental
health services to help them cope with such concerns. At a local level there is
a need for a holistic, community-based approach to the prevention of mental
health problems. A vital aspect of health care for adolescents is simply to
have access to a reliable person to confide in and talk to about their difficulties
and health concerns. This is particularly important in relation to mental
health difficulties such as depression, insecurity and low self-esteem. The
importance of GPs as an early point of contact, offering opportunities for
timely intervention and treatment, was documented in the National Strategy for
Action on Suicide Prevention.[276]
Moreover, the 2008 Annual Report of the Child and Adolescent Mental Health
Services (CAMHS) revealed that the vast majority of referrals come from general
practitioners.[277]
3.10
As discussed in the
Consultation Paper, children as young as 13 have availed of addiction services.
Alcoholism is a huge problem in Irish society, and children who become addicted
to alcohol from an early age often do not have adequate support from parents
and family, particularly if there is a family history of alcohol abuse.
3.11
People from all social
classes and backgrounds can develop a mental health disorder but certain young
people may be particularly at risk due to a history of mental illness, family
breakdown, abuse, learning disability, bereavement or substance abuse.[278]
Children and young people sometimes face a clash of personalities and attitudes
in their home and familial environment, leading to disruptive behaviour and the
consequent development of mental health problems. Disruptive and aggressive
behaviour, however, can be the product of intolerance and hostility rather than
an inherent mental health issue. This is particularly relevant in light of
concerns raised by the Mental Health Commission with regard to behaviourally
disturbed children who come under the auspices of the Mental Health Act 2001
as opposed to the Children Act 2001. These children may be disruptive,
hostile and in need of expert care and supervision but this does not mean that
they should be placed in the mental health system.[279]
It has been suggested that the provisions of the Children Act 2001 on
family welfare conferences could be utilised in such circumstances to guard
against the unnecessary and unsuitable placement of children in the mental
health system.[280] The Mental
Health Commission’s Annual Report 2009 drew attention to the practice,
stating:
“We are
concerned by the occupation of scarce CAMH [Child and Adolescent Mental Health]
beds by individuals with no diagnosable mental disorder often with social
problems ‘with nowhere to go’. This is inappropriate and potentially damaging
to these individuals as well as depriving others of needed beds.”[281]
3.12
A number of
commentators have discussed appropriate and beneficial responses to youth
mental health and recommended the introduction or improvement of different
mental health services. It is widely acknowledged that mental health services
are not meeting current demand and there are considerable gaps in service
provision.[282] In 2009, the Mental Health Commission
stated that Child and Adolescent Mental Health Services (CAMHS), which has
responsibility for providing services to all children up to 18 years of age,
were at that time not in a position to fulfil their obligations.[283]
Community facilities such as day hospitals and clinics were at that time
inadequate, and waiting for an appointment could take over a year.[284]
The CAMHS Annual Report 2008 served to confirm this as it revealed that only 54
of the recommended 99 CAMH teams were then in place, and staff numbers in 49
community teams were below recommended levels. There was also a significant
variation in the distribution and disciplinary composition of the workforce
across teams and regions with 18 teams rating their premises as inadequate or
totally unsuitable.[285]
3.13
One of the key failings
in respect of necessary mental health services for children and adolescents is
the shortage of approved centres for in-patient treatment which has led to the
practice of treating young people, as young as 11 years of age, in adult psychiatric
wards.[286] The Mental
Health Commission referred to this practice as:
“inexcusable,
counter-therapeutic and almost purely custodial in that clinical supervision is
provided by teams unqualified in child and adolescent psychiatry.[287]
3.14
In 2009, the Mental
Health Commission published an addendum to the Code of Practice relating to the
admission of children under the Mental Health Act 2001, aimed at phasing
out the admission of children and adolescents to adult units and centres. By
December 2011 no child under 18 years of age should be admitted to an adult
unit in an approved centre, save in exceptional circumstances. Regarding
children and adolescents who live a considerable distance away from the
approved centres for children, it is probable that they will fall under the
category of exceptional circumstances, and continue to be treated in local
approved centres for adults (modified to address their particular needs) in
order to remain close to family support.
3.15
Such an admission
should only take place in exceptional circumstances, where there is no
available alternative. It should also be noted that it may in fact be for the
benefit of the child or young person that he or she be admitted to a centre
which is not geographically close to home, in circumstances where that child’s
problems begin at home or are exacerbated by the family home environment. The
practice of placing children and young people in adult psychiatric wards and
approved centres for adults represents a violation of the rights of children
under a number of international instruments. In respect of age appropriate
accommodation, the Council of Europe’s 2000 White Paper on the Protection of
Human Rights and Dignity of People Suffering from a Mental Disorder refers
specifically to the living conditions of minors, stating that they should be
treated and reside in separate premises from those in which adults reside,
unless this is against the interest of the minor in question.[288]
Similarly, the 1991 UN Principles for the Protection of Persons with
Mental Illness and the Improvement of Mental Health Care also state that the
environment and living conditions in mental health facilities shall be as close
as possible to those of the normal life of persons of similar age.[289] Article 29 of the 2003 UN General
Comment on Adolescent Health and Development focuses specifically on young
people with mental illness, stating that in the event of hospitalisation or
institutionalisation, adolescents should be separated from adults, where
appropriate.[290]
3.16
The Commission also
notes that the English Mental Health Act 1983, as amended by the Mental
Health Act 2007 (the amendments coming into effect in 2010),[291]
has addressed concerns in relation to the negative experiences of young people
placed on adult psychiatric wards. Section 131 of the 1983 Act, as amended,
provides that children and young people under the age of 18 should be
accommodated in an age-appropriate environment, with access to physical and
educational facilities in order to allow to their personal, social and
educational development to continue.
3.17
The Commission notes
that, since 2009, considerable improvements have taken place in this aspect of
the CAMH services. In its Annual Report 2010,[292]
the Mental Health Commission pointed out that in 2010, 36% of admissions (155
admissions) were to adult units, which was a 24% decrease by comparison with
2009 (193 admissions). Similarly, there was a 65% increase in admissions of
children to child units in 2010 by comparison with 2009.[293]
The Commission echoes the Mental Health Commission’s welcome to and approval of
these development, subject to this proviso: if a completely holistic approach
to service provision is applied, it must also be asked whether hospital
admission, even to an age-appropriate ward, is actually “appropriate” in its
widest sense.
3.18
In this respect, it has
been noted in a 2010 Report for the Mental Health Commission that, for example,
young people with drug and alcohol problems have been admitted to hospital
inappropriately, leading sometimes “to inappropriate short term admissions
that... in many other areas would be considered ‘social admissions,’ more
appropriately dealt with by social services.”[294]
The Commission also notes that any such “social admissions” are highly
questionable in terms of the rights of children under the Constitution of Ireland
and the 1989 UN Convention on the Rights of the Child. In particular, they must
give rise to questions as to whether they can be seen as conforming with an
objective assessment of the best interests of the child or young person, as
discussed in Chapter 1 of this Report. In the Commission’s view, it is
imperative that a young person, going through an important stage of physical
and mental development, receives appropriate treatment in its widest sense,
encompassing family, school and community support – and, if suitable and
appropriate, medical treatment (including treatment in hospital).
3.19
In this Part, the Commission discusses some of the shortcomings of the Mental
Health Act 2001 in respect of the protection of the individual rights of
children and young people admitted and treated under the 2001 Act.
3.20
One matter of concern
is that there is no specific section of the Mental Health Act 2001 which
relates specifically to persons under 18 years of age. This has led to
confusion over which provisions are applicable to children and adults and which
are applicable to adults only.[295]
To quote from the Mental Health Commission:
“The provisions
of the 2001 Act with regard to children need to be completely redrafted to take
account of specific principles applying under human rights law and in national
law. Children are being made to fit within the parameters of a law that was
drafted with adults in mind.”[296]
3.21
The Commission notes
that the rights of children under Irish law, and relevant international human
rights standards, as already discussed in this Report, are particularly
relevant to the present discussion of the admission and treatment of children
and young people under mental health legislation. The Mental Health
Act 2001 contains no clear reference to the rights of children and young
people who are patients under the 2001 Act. Section 4 of the 2001 Act does
contain a statement of rights, but it is unclear whether this section has a
broad application in respect of both children and adults:
“(1) In making
a decision under this Act concerning the care or treatment of a person
(including a decision to make an admission order in relation to a person), the
best interests of the person shall be the principal consideration with due
regard being given to the interests of other persons who may be at risk of
serious harm if the decision is not made.
(2) Where it is
proposed to make a recommendation or an admission order in respect of a person,
or to administer treatment to a person, under this Act, the person shall, so
far as is reasonably practicable, be notified of the proposal and be entitled
to make any representations in relation to it and before deciding this matter
due consideration shall be given to any representations duly made under this
section.
(3) In making a
decision under this Act concerning the care or treatment of a person (including
a decision to make an admission order in relation to a person) due regard shall
be given to the need to respect the right of the person to dignity, bodily
integrity, autonomy and privacy.”
3.22
The Mental Health
Commission has stated that section 4 of the 2001 Act should be interpreted as
applying to both children and adults. However, as discussed in Part D below, it
is clear that the specific rights and best interests of children and young
people are not currently provided for specifically in the 2001 Act. Indeed,
children and young people are not granted the opportunity to make decisions or
representations in respect of their admission and treatment. Furthermore, there
is no requirement to inform the child or young person, much less take their
views into account, which seems to be at variance with section 4(2) of the 2001
Act.
3.23
In the Commission’s
view, more concrete provisions outlining the rights of children and young
people are necessary to ensure that these rights are upheld and protected. The
principle of best interests, for example, is a fundamental cornerstone of
children’s rights and is an important element of the Commission’s
recommendations in respect of healthcare and the medical treatment of children
and young people. As discussed in Chapter 1, an assessment of the best
interests of a child should be informed by the views of the child. Furthermore,
an interpretation of best interests must be carried out from a holistic
viewpoint, encompassing emotional as well as physical well-being, and to avoid
the “social admissions” already mentioned.
3.24
Recognition of the
evolving capacities of children and young people, as discussed in Chapter 1, is
another principle which must be respected in the context of mental health
legislation. Articles 5 and 12 of the 1989 UN Convention on the Rights of the
Child (UNCRC) are particularly significant. Article 5 refers to the evolving
capacities of children, and the responsibility of parents and others to
continually adjust the levels of support and guidance offered to children,
gradually enabling children to participate more in the realisation of their
rights. Article 12 also carries an obligation to inform children, to
ensure that they receive all the necessary advice and information to make a
decision in their best interests. It is clear that the operation of the Mental
Health Act 2001 does not permit children and young people to realise their
Article 12 rights. As outlined below, all rights in respect of information,
participation and decision making are vested entirely in the parents or
guardians of the child or young person, or the District Court.
3.25
Article 24 of the UNCRC refers to the rights of children in the context
of healthcare provision, namely the right of the child to the highest
attainable standard of health. Article 25 provides that State Parties:
“recognise the right of a child who has been placed by the
competent authorities for the purpose of care, protection or treatment of his
or her physical or mental health, to a periodic review of the treatment
provided to the child and all other circumstances relevant to his or her
placement”.
3.26
Article 29 of the General Comment on Adolescent Health and Development
builds on Article 24, focusing specifically on the treatment of adolescents
with mental disorders, stating that the adolescent patient should be given the
maximum possible opportunity to enjoy all his or her rights as recognised under
the UNCRC.[297] Also,
State parties must ensure that adolescents have access to a personal
representative other than a family member to represent their interests, where
necessary and appropriate. This is discussed below, in light of the failure to
represent and advocate for children and young people who are admitted and
treated under the 2001 Act.
3.27
As discussed below, the Mental Health Act 2001 is silent on the
rights of children and young people to be informed and partake in discussions
and decisions concerning their mental health. The development by the Mental Health Commission
of the Headspace Toolkit is very important in this respect. The Toolkit is a
guide aimed at providing age appropriate, accessible information to young
people who are inpatients of mental health services. The Toolkit is written in
a familiar, colloquial manner and covers essential topics such as the rights
afforded to inpatients, what a patient may expect in terms of accommodation and
treatment, and how a child or young person can speak out or make a complaint.
3.28
Section 25 of the Mental
Health Act 2001, which provides for the involuntary admission of children,
is discussed below. For present purposes it is
sufficient to state that section 25 does not contain any significant safeguards
which would ensure that children and young persons who are involuntarily
admitted and treated have access to information and representation.
3.29
A brief examination of
mental health legislation in force in other countries serves to highlight the
lack of attention paid to the rights of children and young people by the Mental
Health Act 2001. Mental health legislation in many other countries,
discussed below, places a higher emphasis on the capacity of children and young
people (particularly those aged 16 and 17 years of age) to participate, either
partially or fully in healthcare decision making.
3.30
In England and Wales,
the Code of Practice on the Mental Health Act 1983, updated in light of
the Mental Health Act 2007, contains a detailed chapter on the admission
and treatment of children and adolescents.[298]
The updated Code of Practice provides a clear and detailed overview of how
mental health law in England has changed in order to respect and safeguard the
rights of children and young people. Again, the Code refers to a number of
principles, echoing those found in Australian legislation, discussed below.
Fundamentally, the best interests of the child or young person must always be a
significant consideration and their views, wishes and feelings should always be
considered. Children and young people should also be kept as fully informed as
possible, just as an adult would be, and should receive clear and detailed
information concerning their care and treatment, explained in a way they can
understand and in a format that is appropriate to their age.
3.31
Similarly, Part 2 of
the South Australia Mental Health Act 2009 contains a list of objects and
guiding principles, which state that services should take into account the
different developmental stages of children and young persons; and that children
and young persons should be cared for and treated separately from other
patients as necessary to enable the care and treatment to be tailored to their
different developmental stages. Patients should be provided with comprehensive
information about their illnesses, orders that apply to them, their legal
rights, the treatments and other services that are to be provided or offered to
them and what alternatives are available. Also, information should be provided
in a way that ensures as far as practicable that it can be understood by those
to whom it is provided.
3.32
The New South Wales
Mental Health Act 2007 also contains a list of principles for care and
treatment, which include the principle that the age-related, gender-related,
religious, cultural, language and other special needs of people with a mental
illness or mental disorder should be recognised. Every effort that is
reasonably practicable should be made to involve persons with a mental illness
or mental disorder in the development of treatment plans and plans for ongoing
care, and people with a mental illness or mental disorder should be informed of
their legal rights and other entitlements under the Act and all reasonable
efforts should be made to ensure the information is given in the language, mode
of communication or terms that they are most likely to understand.
3.33
Reverting to the 2001 Act, the Mental Health Commission’s Code of
Practice Relating to the Admission of Children under the Mental Health Act 2001
is an important document, and highlights some of the shortcomings of the Act in
respect of the rights of children and young people. The Code draws particular
attention to the failure of the Act to address issues of capacity and
healthcare decision making. Also, the Code states that all children receiving
treatment pursuant to the Act should be involved, consistent with their
identified needs and wishes, in the planning, implementation and evaluation of
their care and treatment. The Code of Practice, however, is not legally binding
and does not provide a comprehensive statement of rights and principles for
children and young people who are admitted and treated under the Mental
Health Act 2001. In the Commission’s view, it is doubtful whether the guiding principles
contained in the Code of Practice and the few safeguards under section
25 of the 2001 Act, discussed below, are adequate to provide a robust defence
of children’s rights, particularly their right to participate in health care
decisions.
3.34
Generally speaking, the
focus of mental health legislation and service provision has changed
considerably. The nature of service provision is much more inclusive and is
focused on promoting capacity and accommodating persons with mental health
problems within their community. This is reflected in a rights-based, capacity
building approach to mental health legislation. The provisions of the Mental
Health Act 2001 as they pertain to children and young people do not reflect
a rights-based approach to legislating for persons with mental illness or
disorders.
3.35
The key structures and
definitions upon which the Mental Health Act 2001 are based apply to all
persons treated under the 2001 Act. The definition of mental disorder in the
2001 Act applies to both children and adults, as do the categories of voluntary
and involuntary admission.
3.36
A voluntary patient is
defined in the 2001 Act as “a person receiving care and treatment in an
approved centre who is not the subject of an admission order or a renewal
order”. As discussed in the Consultation Paper, in light of the Supreme Court
decision in E.H. v St Vincent’s Hospital & Ors,[299]
the definition of a voluntary patient is a negative one, centred on what a
voluntary patient is not, rather than what a voluntary patient is. The
Commission reiterates its view that a voluntary admission must contain an
element of voluntariness on behalf of the patient to consent to admission and
treatment. A voluntary patient is not the subject of an admission or renewal
order and therefore is not suffering from a mental disorder under section 2 of
the 2001 Act. A voluntary patient is therefore regarded as a person who has the
requisite capacity to consent to admission and treatment. A voluntary patient,
who is under 18 years of age, however, is treated differently.
3.37
As mentioned above, the
structures and definitions upon which the scheme of the 2001 Act is based,
namely mental disorder, voluntary admission and involuntary admission, are
applicable to both children and adults. There are, however, significant
differences in the practical application of these important terms and
definitions.
3.38
Importantly, the distinction between a
voluntary and an involuntary patient is maintained in principle, but
circumvented in practice in respect of persons under 18 years of age. The
majority of children and young people requiring in-patient treatment are
admitted at the request of, or through obtaining the consent of, a parent or
guardian. This practice was questioned in the Consultation Paper and the
Commission reiterates its view that the practice of admitting a child or a
young person “voluntarily,” solely on the basis of parental consent, is flawed
and out of line with the rights of children and the general principles set out
in Chapter 1 of this Report.
3.39
The issue of obtaining
parental consent for the voluntary admission and treatment of a child or young
person appears to have developed as a response to the lack of reference to
issues of capacity and consent in the 2001 Act in respect of persons under 18
years of age. This omission has caused considerable confusion over the capacity
of a young person to make healthcare decisions in respect of his or her mental
health.
3.40
The traditional
acceptance of 16 years as the age at which young people have the legal capacity
to make healthcare decisions is discussed above in Chapter 2. The Mental Health Act 2001, however, does
not engage with section 23 of the Non-Fatal Offences Against the Person Act
1997, which provides that a minor aged 16 years of age may consent to
medical treatment. The uneasy relationship between section 23 of the 1997 Act
and the 2001 Act raises questions over the status of consent or refusal given
by a young person aged 16 years of age under the 2001 Act.[300]
This uncertainty also extends to issues of capacity and consent in respect of
young people under 16 years of age.
3.41
A quote from the Mental
Health Commission’s Code of Practice illustrates the failure of the Mental
Health Act 2001 to recognise the capacity of young people admitted as
voluntary patients:
“where a child
who is 16 years or older is being treated as a voluntary patient in an approved
centre on the basis of consent given by his or her parents, it would appear
that the child would not have a right to leave as such”
3.42
The term “voluntary” is
not an accurate description of a patient who has not given consent to his or
her admission, cannot consent to treatment and cannot leave the centre.
Furthermore, persons who are admitted as voluntary patients do not have the
same level of automatic protections and safeguards available to persons admitted
as involuntary patients. The safeguards in place for children admitted as
involuntary patients are in need of significant reform but at least the
presence of such safeguards, regardless of their adequacy, serves to recognise
that the rights of children and young people admitted in such circumstances
must be protected.
3.43
The limited nature of
the safeguards in place to protect the rights of children and young people
admitted and detained under the 2001 Act is evident from the blurred distinction
between voluntary and involuntary patients. Where this distinction is blurred,
it is doubtful if appropriate safeguards can be applied as many of the
available protections and safeguards are triggered only when a patient is
admitted as an involuntary patient. The majority of children and young people
are admitted as voluntary patients and therefore do not have an opportunity to
engage with the safeguards available to patients admitted as involuntary
patients. Furthermore, it is likely that the section 25 process of involuntary
admission is being circumvented by simply obtaining parental consent to admit
children and young people as voluntary patients. It is highly unsuitable to
treat the terms of voluntary and involuntary as interchangeable by circumventing
procedures of involuntary admission. This practice results in young people with
a mental disorder being treated as voluntary patients, which may have an
adverse effect on the type of treatment they receive and, as mentioned above,
has an impact on the number and strength of safeguards available to them.
3.44
The Mental Health
Commission’s Headspace Toolkit, mentioned above,[301]
attempts to clarify the confusion created by the use of the word “voluntary” in
the context of the 2001 Act and the word in its ordinary context:
“Most of the
young people you meet will be there as voluntary patients. The word voluntary
may seem a little strange if you have not agreed to being admitted but
according to the law your admission is voluntary if you are under 18 and your
parents agreed to it.”[302]
3.45
The Mental Health
Commission has also referred to the detrimental effect which the practice of
voluntary admission may have on the relationship between parents or guardians
and their children, who are admitted under the Act as a direct result of
parental consent.[303] For
example, a young person aged 16 or 17 years of age who has capacity to make day
to day decisions about his or her education, money, leisure, and general
healthcare may become distrusting and hostile towards his or her parents who
have consented to admission and treatment which may well be against the young
person’s wishes. The quality of the parent-child relationship is a vital and an
extremely influential part of every child and young person’s life, particularly
when the young person is experiencing mental health difficulties. Family
dynamics and relationships are obviously important to any child or young
person, but are a particularly important source of support to the child or
young person experiencing mental health difficulties. The majority of children
and young people are treated with their families, and many interventions are
targeted at both the patient and the family unit as a whole.
3.46
In the Commission’s
view, it is also likely that the shortcomings of the 2001 Act in respect of the
voluntary admission of children and young people infringe the European
Convention on Human Rights (ECHR). In Nielson v Denmark,[304]
the European Court of Human Rights held that parents have rights of parental
authority which are protected under Article 8. These rights, however, are
limited and it is incumbent on the State to provide safeguards against abuse.
This view was reiterated in Johanssen v Norway,[305]
where the court held that Article 8 of the ECHR should not be interpreted in a
way which protects family life to the detriment of a child’s health and
development.
3.47
The decision in Storck
v Germany[306] is
particularly relevant to the present evaluation of the provisions of the Mental
Health Act 2001 as they pertain to children and young people detained as
voluntary patients. The applicant was a woman who had spent 20 years in
psychiatric institutions and hospitals, after her initial admission at 15 years
of age, by way of parental consent. After a considerable period of time, it was
revealed that the applicant had never suffered from schizophrenia, despite
receiving treatment for the disorder, and her behaviour had been caused by
conflict with her family. The court held that Member States have a positive
obligation under Articles 5 and 8 of the ECHR to ensure effective supervision
and review of decisions to detain or to treat without consent.[307]
Member States are also under an obligation to provide effective supervision and
review of deprivations of liberty and interferences with the physical integrity
of a young person.[308]
3.48
Significant reforms
have been carried out in England and Wales to strengthen the rights of children
and young people who could otherwise be treated against their wishes, but with
their parent’s consent. Prior to the reforms brought about by the Mental
Health Act 2007, practice in England was similar to the current
situation in Ireland, where children and young people were admitted by their
parents or guardians. Section 131 of the Mental Health Act 1983 was amended
by Section 43 of the Mental Health Act 2007 to end the admission of 16
and 17 year olds on the basis of parental consent. As a result, 16 and 17 year
olds who have capacity under the Mental Capacity Act 2005 may consent to
admission, even where one or more persons may have parental responsibility for
them. This is consistent with section 8 of the English Family Law Reform Act
1969, which, as discussed in Chapter 2 above, is the statutory precedent
for section 23 of the Non Fatal Offences Against the Person Act 1997.
3.49
In respect of children
who are less than 16 years of age, those with capacity to consent to admission
may do so, without the need for additional parental consent. In this regard,
the child’s capacity must be assessed carefully in relation to each decision
that needs to be made, as the understanding for different interventions and
treatments will vary considerably.
3.50
The law in other countries on the issues of
capacity and consent in respect of mental health treatment indicate a much closer,
and more appropriate, relationship between the law of capacity in respect of
physical treatment and the law on capacity in respect of mental health
treatment. For example, in New South Wales, a child or a young person may
consent to admission as a voluntary patient, in tandem with rules of parental
notification and rights of consent, which are linked to the age of the child in
question.[309] The traditional threshold of 16 years of age is retained in the
legislation, discussed in more detail in Chapter 2 above. In New South Wales,
the age of 16 has been recognised as the age of consent to general medical
treatment since 1970.[310]
3.51
The South Australia
Mental Health Act 2009 applies to children in the same way as it applies to
persons of full age. However, a distinction is drawn between young people aged
16 and 17 and those aged less than 16 years of age, in that a right conferred
on a person under the Act may be exercised by a parent, if the person is under
16 years of age.[311] Similar to
the legal position in New South Wales, the age of 16 is accepted as the age of
consent to medical treatment. Section 6 of the Consent to Treatment and
Palliative Care Act 1995, discussed in Chapter 2, states that a person of
16 years of age may make decisions about his or her medical treatment as
validly and effectively as an adult.
3.52
In New Zealand, section
36 of the Care of Children Act 2004 states that a young person aged 16
years of age may consent to or refuse medical treatment, and this is mirrored
in the Mental Health (Compulsory Assessment and Treatment) Act 1992
which states that the consent of a parent or guardian for the assessment or
treatment of a person who has reached 16 years of age, shall not be sufficient
consent for the purposes of the Act.[312]
3.53
The Commission
considers that the 2001 Act should be amended to end the practice of admitting
children and young people as voluntary patients, solely on the basis of
parental consent. Furthermore, the failure to recognise the capacity of
children and young people, particularly those aged 16 and 17 years of age in
respect of consent to mental health admission and treatment creates an
arbitrary distinction between physical and mental health. Following the
publication of its Consultation Paper, the Commission received a considerable
number of submissions outlining the deficiencies of the practice of voluntary
admission as it currently applies to children and young people, and supporting
the Commission’s recommendations to end the current practice of such
admissions.
3.54
Section 25 of the Mental Health Act 2001 provides for the
involuntary admission of children and young people. This system of involuntary
admission is different to the system in place of the involuntary admission and
treatment of adults. Children and young people clearly have different needs
than adults but safeguards relating to the involuntary placement and treatment
of children and young people should be at least as stringent as those in place
for adults admitted and treated as involuntary patients.[313]
3.55
In order to have a person involuntarily admitted, the Health Service
Executive (HSE) may apply to the District Court for an order authorising the
detention of a child in an approved centre, where it appears that the child is
suffering from a mental disorder and the child requires treatment which he or
she is unlikely to receive unless an order is made under section 25. The child
or young person must be examined by a consultant psychiatrist who reports to
the court as part of the application. Section 25(3) of the 2001 Act provides an
exception to the general rule that the child or young person must be examined
by a psychiatrist, where a parent is unwilling or unable to consent to the
examination. Following an application under section 25(3) the court may give
directions in respect of the appropriate care of the child, which may include
detention. Section 25 of the 2001 Act does not contain a specific time frame
within which a child must be examined by a psychiatrist, or what constitutes a
permissible period of detention pending final determination, aided by the
report of a psychiatrist. The Mental Health Commission has drawn attention to
this issue, stating that the lack of objective medical expertise confirming the
presence of a mental disorder may infringe Article 5(1) of the European
Convention on Human Rights.[314]
3.56
Furthermore, section 25 of the 2001 Act refers to the report of a
consultant psychiatrist. As stated in the Consultation Paper, children and
young people have specific mental health issues, which are not dealt with in
general psychiatric adult practice.[315]
The Mental Health Commission has recommended that, in so far as is practicable,
the HSE should arrange for such a report to be made by a child and adolescent
consultant psychiatrist.[316]
3.57
As to the time frames under section 25 of the 2001 Act, the permissible
periods of detention following a successful application consist of an initial
detention period not exceeding 21 days, followed by periods not exceeding 3 and
6 months. As stated in the Consultation Paper, there is no mechanism for a
person detained under section 25 of the 2001 Act to challenge a detention or
seek a review of his or her detention or treatment. Therefore, a child or a
young person detained under section 25 of the 2001 Act cannot challenge a
period of detention between the initial admission order and a subsequent
renewal order, or the period of time between each renewal order, which as noted
above, may last for 6 months. The 6 month detention period between renewal
orders under section 25 may be excessive in some cases and raise concerns in
respect of proportionality.
3.58
The decision of the High Court in SM v Mental Health Commission[317]
is relevant in this respect, as it pertains to section 15 of the Mental
Health Act 2001, which is concerned with the involuntary detention and
treatment of adult patients. The central issue in the SM case was
whether the power vested in a consultant psychiatrist under section 15 of the
2001 Act was satisfied when he or she makes a renewal order which states that
the order does not exceed 12 months. The period of 12 months is the maximum
period of time permitted under section 15(3). Mc Mahon J stated:
“Section 15, since it purports to restrict a constitutional
right to liberty, albeit for the patient’s own good and the safety of others,
should be interpreted in a proportionate way so that the detention is not for
longer periods than are necessary to achieve the object of the legislation. The
approach to an interpretation of the section should be that which is most
favourable to the patient while yet achieving the object of the Act.”
3.59
The High Court held in the SM case that section 15, which refers
to a renewal order for a period not exceeding 12 months, may not be interpreted
as a renewal order for a fixed period of 12 months. Such an interpretation
would prevent the psychiatrist from making shorter orders, in the best
interests of the patient. The maximum period of 12 months detention orders may
of course be used where appropriate, but otherwise the specific period of time
must be clearly indicated. The decision in the SM case resulted in the
requirement to insert a specific date when renewal orders of the detention of
adult patients are being made. The Mental Health Commission has stated that the
same requirement should apply in respect of children and young people detained
under section 25 of the 2001 Act.
3.60
The Mental Health Act 2001 has relied heavily on the Child
Care Act 1991 in attempting to safeguard the rights of children and secure
their best interests.[318] The 1991
Act is primarily concerned with children in care and recognises the District
Court as the primary forum for the adjudication of such care proceedings.[319]
Section 25(14) of the 2001 Act incorporates a number of provisions from the
1991 Act, intended to safeguard the rights of children and young people who are
involuntary patients.[320] As stated
in the Consultation Paper, these provisions are not sufficient in the context
of children and young people detained as involuntary patients.
3.61
For example, section 30 of the 1991 Act makes provision for the presence
of a child during a court hearing. As discussed in the Consultation Paper, the
provision is rather limited.[321] The
provision seems to indicate that a child may only be present where his or her
presence is necessary for the disposal of the case. Although a child or young
person may request to be present, the utility of this is largely dependent on
his or her knowledge that the provision exists. There is no reference to the
maturity of the child, or his or her understanding of the particular
proceedings.
3.62
Section 24 of the 1991 Act refers to the duty of the court to take the
wishes of the child into consideration during court proceedings. The
shortcomings of section 24 are discussed in the Consultation Paper[322]
but for present purposes it is sufficient to state that section 24 does not
ensure that the voice of the child (discussed in Chapter 1 of this Report) is
heard in line with Article 12 of the UN Convention on the Rights of the Child.
Sections 21 and 22 of the 1991 Act deals with the appeal, variation and
discharge of orders, which infers that a court may vary or discharge an order
made under section 25. It is unlikely that a child or young person admitted
under section 25 could utilise this provision, to have their admission
reviewed, bearing in mind that the Act is rather silent on the participation
rights of children and young people.
3.63
Section 26 of the 1991 Act provides for the appointment of a guardian
ad litem. This is particularly important to children and young people
detained under section 25, as they have no effective way of seeking review of
their admission and treatment. The appointment of an advocate would support
them and ensure that their views are taken into account. The guardian ad
litem system, however, is under severe pressure at present. Therefore, much
like sections 21 and 22 of the 1991 Act, discussed above, the practical utility
of section 26 of the 1991 Act in relation to a child or young person who is
detained as an involuntary patient is rather negligible.
3.64
The guiding principles in the Mental Health Commission’s Code of
Practice and the best interests requirement contained in section 4(2) of the
2001 Act may be considered as additional safeguards to supplement those
contained in section 25. These supplementary safeguards are not, however,
sufficient to form an adequate defence to protect the rights of children and
young people admitted and treated under the 2001 Act.
3.65
Section 16 of the 2001 Act makes provision for
information to be provided to persons who are admitted to approved centres.
Although the application of this section is not restricted to adults detained
as involuntary patients, it seems to have been interpreted to that effect. This
provision of information is extremely important. Patients are alerted to their
rights under the 2001 Act such as their right to legal representation and their
right to communicate with the Inspector of Mental Health. The statement also
informs the patient that they may be admitted as a voluntary patient if they
wish, and that their admission as an involuntary patient shall be reviewed by
the Mental Health Tribunal. This statement of information is a vital element of
ensuring that patients are informed and aware of the nature of their admission.
There is no reason why children and young people should not receive similar
information, provided to them in a comprehensible, age-appropriate manner.
3.66
As discussed above, the 2001 Act does not engage with issues of capacity
and healthcare decision making in respect of persons under 18 years of age. The
uncertain relationship between the 2001 Act and section 23 of the Non-Fatal
Offences Against the Person Act 1997 has created considerable practical
difficulties, as a young person aged 16 or 17 years of age may make a range of
healthcare decisions but cannot make any decisions which would fall within the
remit of the 2001 Act.
3.67
A 16 year old may make healthcare decisions which are considered to be outside
the remit of the 2001 Act, for example, when presenting to an Accident and
Emergency Unit for mental distress or attending an outpatient or day care
appointment. Similarly, a young person aged 16 years of age may consent to
medical treatment which is unrelated to his or her mental illness or disorder.
For example, a 16 or a 17 year old may leave the centre where he or she is
receiving treatment under the 2001 Act, in order to consent to and receive
medical treatment in another medical setting. When the young person returns to
resume treatment in respect of his or her mental illness, however, he or she
will have lost all rights in relation to healthcare decision making.
3.68
The Commission received a number of submissions which drew attention to
the considerable confusion and inconsistencies caused by the lack of clarity on
the relationship between capacity in respect of mental health and capacity in
respect of physical health. It is difficult and somewhat arbitrary to attempt
to draw a clear line between care and treatment of the physical self and care
and treatment of the mind.
3.69
The illogicality of the present legal position as regards capacity under
the 2001 Act is highlighted by the consideration of a typical situation
involving a 16 or 17 year old experiencing mental health difficulties. The
young person attends a GP and may consent to pharmaceutical treatment, with an
anti-depressant for example. However, perhaps the young person feels that the
treatment is not appropriate or perhaps the GP is unsure as to the most
effective course of treatment. The GP may decide to refer the matter to a Child
Psychiatrist. Upon receiving the referral however, it seems a line has been
crossed, in terms of legal capacity to make healthcare decisions. The Child
Psychiatrist, in light of the current confusion over the relationship between
the Non-Fatal Offences Against the Person Act 1997 and the Mental
Health Act 2001, cannot treat the young person in question without parental
involvement and consent.
3.70
In respect of voluntary patients, the Mental Health Commission’s Code of
Practice states that in order for treatment to be administered to a child who
has been admitted voluntarily, that is admitted by parental consent, consent
for the treatment must be obtained from one or both of the child’s parents.
Again, as discussed above, this serves to highlight the unsuitability of the
term ‘voluntary’ to describe children and young people whose voluntary status
under the Act derives solely from parental consent, and who cannot consent to
or refuse treatment. The
Commission is aware that in day to day practice, clinicians make these
treatment decisions based on the best interests of their patient, and such
treatments are not available simply at the request of a parent. Nevertheless,
clarity is important to ensure that patient’s rights are protected, both in
theory and in practice.
3.71
Section 61 of the 2001 Act regulates the provision of treatment of
children and young people who are involuntary patients under section 25. The shortcomings of section 61 of
the 2001 Act are discussed in the Consultation Paper. The 2007 Review of the
Operation of the Mental Health Act 2001[323]
referred to the drafting error in section 61, stating that the process of
detention in respect of persons under 18, provided for in section 25, is quite
different to the involuntary admission of an adult which is not reflected correctly
in section 61. The Minister for Health has acknowledged the drafting error in
section 61, which will be amended as soon as a suitable opportunity arises.
3.72
Section 61 states that
where medication has been administered to a child or young person for a period
of three months, the authorisation of the treating consultant psychiatrist and
a second consultant psychiatrist is necessary in order to continue treatment
for a further three month period. As stated in the Consultation Paper the three
month period which passes before medication is approved under section 61 is
excessive and should be addressed. Under the Act as it stands, it is
permissible to prescribe medication to a child or a young person for a period
of three months without even obtaining a second opinion.[324]
Furthermore, the child or young person does not have the right to consent or
even assent to the proposed treatment. Under section 60, the patient may be
prescribed treatment without engaging in a discussion with his or her
psychiatrist on the nature of the treatment, its merits and any side effects.
3.73
This represents a
failure to respect the rights of children and young people who are patients
under the Mental Health Act 2001. It is of the utmost importance
to involve children in the management of their health care plans, to facilitate
their participation and allow them to develop the skills to make decisions and
assume responsibility for aspects of their health care. On a practical level,
studies have shown that increased participation and patient choice can lead to
improved treatment outcomes.[325] A presumption that the child
or young person cannot understand and express their views about their admission
and treatment must not be made solely on the basis of the patient’s minority
status.
3.74
A requirement to
discuss the proposed treatment with the child or adolescent would strengthen
that child’s rights. The child or young person should have an opportunity to
participate in the drawing up of an individualised treatment plan. Under
section 60 of the 2001 Act, which provides for the treatment of adults who are
involuntary patients, patients are given the opportunity to consent to
treatment in writing. An adult patient’s proposed treatment plan is also
contained in the statement of information presented to them upon their
admission as an involuntary patient.
3.75
It is clear that, in respect
of treatment administered under the Mental Health Act 2001, children and
young people do not have their rights protected to the same degree as adults.
As stated above in respect of admission and detention under the 2001 Act,
safeguards in place to protect the rights and civil liberties of patients under
mental health legislation should apply to all persons, including those under 18
years of age. Indeed, in some circumstances, the fact that children are often
reliant on others to exercise their rights means that the safeguards in place
for children and young people need to be more robust than those in place for
adults.
3.76
Under section 25 of the
2001 Act, court approval must be obtained for more serious aspects of
treatment, namely psychosurgery or electro-convulsive therapy. Again, there is
no requirement to inform the child or young person or discuss treatment
options. There is no representative to act on behalf of the child, nor is the
child or young person required to be present in court when his or her treatment
is being discussed and approved.
3.77
The court process in
respect of obtaining consent for psychosurgery or electro-convulsive therapy is
unclear. Section 25 does not provide any detail as to reports or evidence to be
presented to the court to assist in such decision making, or whether for
example a second opinion from an independent psychiatrist is necessary. The
Mental Health Commission has stated that independent opinions in such
situations are essential.[326]
3.78
It is evident from the
discussion in the preceding paragraphs that reform is needed in respect of the
administration of treatment to children and young people who are admitted under
the Mental Health Act 2001, whether as voluntary or involuntary
patients.
3.79
In this Part, the
Commission sets out its final recommendations for reform of the Mental Health
Act 2001 in so far as it applies to children and young people. In Part D,
the Commission has discussed the absence in the 2001 Act of specific provisions
concerning children and young persons. While the general principles discussed
in Chapters 1 and 2 would, if enacted, apply to the 2001 Act, the Commission
considers that it would be more appropriate to include in the 2001 Act a
detailed set of suitably tailored provisions. These would allow those involved
in the implementation of the 2001 Act a clear set of criteria by which the
appropriateness of admissions could be gauged.
3.80
The Commission begins
with a consideration of general principles. Based on the general recommendations
in Chapter 2, these principles would clarify the specific approach to capacity
of persons under 18 in connection with admissions under the 2001 Act. In
keeping with this approach, the Commission also considers that the 2001 Act
should include the type of objective best interests test discussed in Chapter
1. This would assist in ensuring that a full assessment is made of the most
appropriate outcome for each child or young person. The best interests test
would also assist in preventing the inappropriate “social admissions” referred
to in Part D, above. [327]
3.81
The Commission has
accordingly concluded, and therefore recommends, that the 2001 Act be amended
to include specific provisions for persons under the age of 18, based on the
general principles already recommended in this Report. The Commission also
recommends that the 2001 Act should be amended to provide:
(a) that children and young people admitted under the 2001 Act should be
accommodated in an environment that is suitable for their age;
(b) that children and young people may only be admitted under the 2001
Act if such an admission is in their best interests, objectively assessed by
reference to their rights;
(c) that the provisions outlined in the Mental Health Commission’s Code
of Practice should be followed to ensure that children and young people can
avail of age appropriate facilities and activities to allow their personal,
social and educational development to continue;
(d) that children and young people should receive the least intrusive
and restrictive treatment possible, in the least restrictive environment
possible, for the shortest possible period in accordance with an individualised
care plan;
(e) that children and young people should be provided with clear
information regarding their proposed admission and treatment in a manner which
is accessible and appropriate with regard to their age and understanding; and
that this information should include details of their legal rights, and it
should include information on the purpose, side effects, and any alternatives
to the proposed treatment;
(f) that children and young people should have access to independent,
specialised advocacy services and should have access to a personal
representative, other than a family member, in circumstances where this is
necessary and appropriate, and
(g) that the protections that apply to adults with respect to mental
health treatment under the 2001 Act should apply equally to persons under 18.
3.82
The Commission recommends that the Mental
Health Act 2001 be amended to include specific provisions for persons under the
age of 18, based on the general principles already recommended in this Report.
The Commission also recommends that the 2001 Act should be amended to provide:
(a) that children and young people admitted under the 2001 Act should be
accommodated in an environment that is suitable for their age;
(b) that children and young people may only be admitted under the 2001
Act if such an admission is in their best interests, objectively assessed by
reference to their rights;
(c) that the provisions outlined in the Mental Health Commission’s Code
of Practice should be followed to ensure that children and young people the patient can
avail of age appropriate facilities and activities to allow their personal,
social and educational development to continue.
(d) that children and young people should receive the least intrusive
and restrictive treatment possible, in the least restrictive environment
possible, for the shortest possible period in accordance with an individualised
care plan;
(e) that children and young people should be provided with clear
information regarding their proposed admission and treatment in a manner which
is accessible and appropriate with regard to their age and understanding; and
that this information should include details of their legal rights, and it
should include information on the purpose, side effects, and any alternatives
to the proposed treatment;
(f) that children and young people should have access to independent,
specialised advocacy services and should have access to a personal
representative, other than a family member, in circumstances where this is
necessary and appropriate, and
(g) that the protections that apply to adults with respect to mental
health treatment under the 2001 Act should apply equally to persons under 18.
3.83
In order to address the
shortcomings of the system of voluntary admission, it is necessary to recognise
the capacity of children and young people to make healthcare decisions in
respect of their own admission and treatment, and also to address the confusion
created by the word “voluntary” in ordinary terms and the meaning attributed to
it as a categorisation under the Mental Health Act 2001. The Commission
has also concluded, and therefore recommends, that the 2001 Act should be amended
to safeguard the rights of children and adolescents admitted by parental
consent as voluntary patients so that they are afforded the same safeguards
granted to adults.
3.84
In respect of
decision-making concerning voluntary admission and treatment, it is imperative
to distinguish between children and young people who have the capacity to make
such a decision and those who do not. As already noted, the Commission’s
recommendations on healthcare decision-making outlined in Chapter 2 are applicable
in the context of mental health. Therefore, a young person aged 16 or 17 years
of age is presumed to have capacity to consent to and refuse healthcare and
treatment. Applying this in the context of the 2001 Act, young people aged 16
and 17 years of age may consent to or refuse voluntary admission and treatment.
3.85
Where a young person
aged 16 or 17 does not have the capacity to make the admission or treatment
decision in question, his or her parents or guardians may not provide an
effective consent. In such a case, the only options for admission would be
involuntary admission (where the child has a mental disorder) or intermediate
admission (discussed below).
3.86
The Commission
recommends that that the Mental Health Act 2001 be amended to provide that a
person who is 16 or 17 years of age is presumed to have capacity to consent to
and refuse healthcare and medical treatment, including psychiatric treatment.
3.87
The Commission
considers that, to avoid any doubt on the matter, it recommends that the
recommendations in Chapter 2 concerning persons under the age of 16 should also
apply to the Mental Health Act 2001. The capacity of the child under 16
would have to be assessed in relation to each decision and aspect of admission
and treatment. The provision of clear information and guidance would be
particularly important in such cases, as would the option of an independent
advocate.
3.88
The Commission
recommends that, to avoid any doubt, the recommendations concerning healthcare
decision-making by persons under 16 years of age should also be applied in the
context of mental health, including decisions in respect of admission and
treatment under the Mental Health Act 2001.
3.89
Section 23 of the 2001
Act states that where a parent of a child who is being treated as a voluntary
patient in an approved centre indicates that he or she wishes to remove the
child, the child may be placed in the care of the Health Service Executive
(HSE),[328] if the
relevant medical practitioner is of the opinion that the child is suffering
from a mental disorder. Unless the HSE returns the child or young person to his
or her parents, an application must be made to the District Court within a 3
day period in order to apply for involuntary admission. Under sections 23 and
24 of the 2001 Act, where an adult who is being treated as a voluntary patient
requests to leave the approved centre, and the relevant medical practitioner is
of the opinion that he or she is suffering from a mental disorder, he or she
may be detained for a period not exceeding 24 hours.
3.90
In the Commission’s
view, the three day time frame in place under section 23 of the 2001 Act seems
to be quite long, possibly to accommodate for an application to the District
Court under section 25 of the 2001 Act. The Commission recommends that this
should be included in the proposed Code of Practice (see Chapter 2, above) and
considered in the light of current practice and whatever length of time is
involved in the making of such an application. The Code of Practice could also
include appropriate time frames to operate in such situations, where children
and young people who have consented to admission and treatment as voluntary
patients, request to leave the approved centre.
3.91
The Commission
recommends that the proposed Code of Practice already recommended in this
Report should include guidance on appropriate time frames to operate in cases
of voluntary and involuntary admissions.
3.92
As discussed in the
Consultation Paper, categorisation of patients as voluntary or involuntary
under the Mental Health Act 2001 is only appropriate in relation to
children and young people who consent to admission as voluntary patients, or
are suffering from a mental disorder and are therefore categorised as
involuntary patients. The Commission reiterates here that a third category of
“intermediate” admission would be more appropriate to describe children who do
not have the capacity to consent to admission and are admitted by their
parents. Children under the age of 16, without the capacity to consent to
voluntary admission and treatment, would be admitted as intermediate patients
with the consent of their parents or guardians.
3.93
Intermediate patients
would have their admission reviewed in the same manner as the review of admission
of an involuntary patient, with the exception that the psychiatrist on the
Mental Health Tribunal would be an age-appropriate child or adolescent
psychiatrist. In respect of the treatment of intermediate patients, the
provision of information and guidance on the proposed treatment, its purpose,
possible side effects and any alternatives would be discussed with the patient,
where appropriate and his or her parents. Ideally, a treatment plan would be
decided upon by the patient, his or her parents, and the psychiatrist,
supported by the second opinion of a consultant psychiatrist.
3.94
The Commission
recommends the introduction of a third category of “intermediate” admission for
children and young persons who are admitted under the Mental Health Act 2001 by
way of the consent of persons having parental responsibility for them. The
admission and treatment of intermediate patients would be subject to regular
review, in the same manner as involuntary patients.
3.95
The Commission also accepts that the Mental Health Act 2001 should be amended to safeguard the rights of children
and young people with mental disorders who are admitted as involuntary patients
under section 25 of the 2001 Act. The small number of safeguards imported into the 2001 Act from the Child
Care Act 1991 should be replaced with stronger and more definite
protections, accessible and appropriate for children and young people.
3.96
Firstly, there are a
number of procedural aspects under section 25 which may be improved. For
example, section 25 refers to a report by a consultant psychiatrist. The
Commission agrees with the Mental Health Commission that such a report should
be made by a consultant child and adolescent psychiatrist.[329]
An additional point made by the Mental Health Commission is that the system of
involuntary admission operates on the assumption that, if the HSE is not
involved, parents or guardians are only permitted to make voluntary
applications. Parents or guardians or interested persons such as a medical
practitioner, a psychiatrist or a relative could make an application in some
cases where the child or young person has a mental disorder and is in need of
admission and treatment.
3.97
Copies of the admission
order granted under section 25 should be given to parents and guardians to
ensure they are kept informed. This also applies to the child or young person
who is admitted, which is discussed further below.
3.98
The Commission reiterates its view, expressed in the Consultation Paper,
that the system of involuntary admission of children and young people must be
addressed. As stated in the Consultation Paper, there is no mechanism for a
person detained under section 25 to challenge a detention or seek a review of
his or her detention or treatment. A child or a young person detained under
section 25 cannot challenge a period of detention between the initial admission
order and a subsequent renewal order, or the period of time between each
renewal order, which as noted above, may last for 6 months.
3.99
Also, in light of the decision in SM v Mental Health Commission 2008,[330]
the consultant psychiatrist must be in a position to recommend an admission or
renewal order for a period of time which is less than the maximum permissible
period of time.
3.100
It has been suggested to the Commission that within a week of admission,
a discussion shall take place between the treating psychiatrist and a second
independent psychiatrist, possibly with input from other staff members. This
meeting would discuss the general suitability of the admission and proposed
treatments.
3.101
The Commission recommends that a system of regular review of
involuntary admissions be established, to be carried out by a consultant
independent of the consultant involved in the initial admission. The opinion of
the reviewing consultant should be supported by a second independent opinion.
3.102
The Mental Health Act 2001, drawing on the Child Care Act 1991,
provides that the District
Court is the appropriate forum to determine matters concerning a person under
18. This is reflected in section 25 of the 2001 Act, where the admission and
review of children and young people who are involuntarily detained is carried
out by the court. The admission of an adult who is detained as an
involuntary patient is reviewed by the Mental Health Tribunal. The Tribunal
comprises a legal member, a
lay person and a consultant psychiatrist. The Mental Health Commission’s
Reference Guide to the
Mental Health Act
states that the primary function of the Tribunal is to ensure the protection of
the rights of patients.[331] Patients
have a right to attend the Tribunal if they wish and may be represented by a
legal representative.
3.103
Submissions received by
the Commission on the issue were in favour of a more informal arena of review,
with an age appropriate focus and awareness of the importance of the voice of
the child. The Commission reiterates its view, expressed as a
provisional recommendation in the Consultation Paper, that a less formal arena,
with an age appropriate focus is a more fitting option. Therefore, the Tribunal
ought to be made up of a legal representative, a lay representative, and an age
appropriate child psychiatrist.
It is important that a forum which reviews the admission and treatment of
children and young people must respect Article 12 of the 1989 UN Convention on
the Rights of the Child and give the child or young person the opportunity to
express his or her views and give them due weight in accordance with his or her
age and maturity. The child or young person must be given the opportunity to
participate, by attending the informal hearing, or possibly submitting his or
her opinion in writing. The representative of the child or young person would
also attend the hearing, to advocate for the patient.
3.104
The Commission recommends that the District Court make the initial
decision on admission of
children and young people as involuntary patients for the purposes of the
Mental Health Act 2001, but that a Mental Heath Tribunal (with an age appropriate focus) rather
than the District Court should review the admission.
3.105
A significant
shortcoming in the operation of section 25 of the 2001 Act is the failure to
give children and young people, detained as involuntary patients, the choice to
be admitted as voluntary patients. Adults who are detained as involuntary
patients are provided with this choice, presented to them in the statement of
information they receive within 24 hours of admission. Children and young
people who have capacity should also be able to choose the least restrictive
option of detention available to them.
3.106
The Commission
recommends that a consultant psychiatrist initially assess the child in order
to decide which type of admission is appropriate under the circumstances and to
assess whether the minor is providing consent or not, where the child has
capacity to provide such consent. However, where the child has a mental
disorder within the terms of section 25 of the 2001 Act, the choice of a child
to become a voluntary patient could clearly be overridden.
3.107
The Commission also
recommends that where a child is admitted as an involuntary patient, that
individual should have the option to change their status to a voluntary patient
where they satisfy the relevant criteria.
3.108
Children and young people detained under section 25 of the 2001 Act are
particularly vulnerable and it is important that they are informed and
represented. Therefore, the Commission recommends that children and young
people, who are detained as involuntary patients, be presented with a statement
of information, similar to the information given to adults detained as
involuntary patients. Clearly, a statement of information aimed at children and
young people must be age appropriate, and communicated to them in a manner and
language with which they are comfortable.
3.109
The Commission recommends that persons under 18 years of age who are
admitted as involuntary patients under the Mental Health Act 2001 be given a
statement of information, communicated to them in an age appropriate manner.
3.110
As stated in the Consultation Paper, the Commission considers that independent and specialised advocacy
services should be available to children and adolescents admitted and treated
under the Mental Health Act 2001, as voluntary, involuntary or
intermediate patients. The guiding principles outlined above at also
highlight the importance of specialised advocacy services for children and
young people.
3.111
The Commission
recommends that all children and adolescents admitted and treated under the
Mental Health Act 2001 should have access to an independent advocate.
3.112
The Commission has also
concluded that reform of the 2001 Act is required in respect of treatment of
children and young people who are admitted and detained under the 2001 Act. It
is of the utmost importance to involve children in the management of their
health care plans, to facilitate their participation and allow them to develop
the skills to make decisions and assume responsibility for aspects of their
health care. Consistently with the Commission’s recommendations outlined in
Chapter 2, above, children and young people with the capacity to make a
treatment decision could do so. If the treatment decision in question concerned
the refusal of life sustaining treatment, the purported refusal would be
addressed and adjudicated by the District Court. It is important to note that
the proposed Code of Practice would include a number of guidelines to support
clinicians in this context, helping them to make a decision on what treatments
are considered to be life sustaining in different circumstances.
3.113
Where a child or young person does not have capacity to make a treatment
decision, it is essential that safeguards are put into place to ensure that
treatment is subject to regular and effective review. Review should be carried
out by the treating consultant psychiatrist, supported by a second opinion,
independent of the treating psychiatrist. Furthermore, both psychiatrists must
discuss the treatment with the patient, and his or her views must be taken into
account in determining whether or not the treatment is necessary and in the
best interests of the patient.
3.114
The Commission
accordingly recommends that the proposed Code of Practice recommended in this
Report consider the time frame for review of treatment under the Mental
Health Act 2001. The Commission has discussed the time frame with a number
of medical specialists in this area and, while no general consensus has
emerged, the Commission agrees with the views expressed to it that this might,
initially, involve review after one month. The Commission recommends that this
timeframe should be considered in the context of the development of the Code of
Practice. The Commission also recommends that the Code of Practice consider
stricter rules with respect to ECT and psycho-surgery with a view to
prohibiting psycho-surgery for persons under 18 years of age.
3.115
The Commission recommends that the proposed Code of Practice
recommended in this Report consider the time frame for review of treatment of
persons under the age of 18 under the Mental Health Act 2001, and that an initial review after one
month should be considered in the context of the development of the Code of
Practice. The Commission also recommends that the Code of Practice
consider stricter rules with respect to ECT and psycho-surgery with a view to
prohibiting psycho-surgery for persons under 18 years of age.
4
The
recommendations made by the Commission in this Report are as follows.
4.01
The Commission
recommends that legislation should be enacted dealing with consent to, and
refusal of, medical treatment concerning persons under the age of 18, and that
it should include the following general principles: having regard to the
recognition in the Constitution and international instruments of the family as
the fundamental group in society, parents and guardians have primary
responsibility for the upbringing and development of their children; the State
may intervene to supply the place of parents in exceptional circumstances where
this is necessary; the rights of the child, and their best interests, must
always be taken into account in this context; a child has rights that are
independent of any right of the parent as such; these rights are, during the
child’s early years, exercised on behalf of the child, usually by the child’s
parents or guardians; these rights remain the rights of the child as they
develop towards maturity and adulthood; and there are various points, sometimes
based on an age threshold and sometimes based on an assessment of maturity and
capacity, at which the law recognises that the child can exercise these rights
independently of their parents or guardians even before they reach full
adulthood at the age of 18. [paragraph 1.32]
4.02
The Commission
recommends that its proposed legislation on consent to, and refusal of, health
care and medical treatment concerning persons under the age of 18 should
include as a primary consideration the best interests of the child, assessed
objectively by reference to the rights of the child. [paragraph 1.35]
4.03
The Commission
recommends, that, for the purposes of its proposed legislation on health care
and treatment concerning persons under the age of 18, health care and medical
treatment should be defined as including:
(a) the provision of surgical, medical, nursing,
pharmaceutical, dental and mental health care or treatment, including the
prescription or supply of drugs;
(b) any assessment or examination for the purposes
of diagnosis, including invasive exploratory acts;
(c) any procedure undertaken for the purposes of
preventing a disease or illness;
(d) any procedure which is ancillary to any
treatment as it applies to that treatment (including but not limited to
anaesthesia);
(e) a course of treatment or a group of associated
treatments;
(f) any treatment carried out by a health and
social care professional, within the meaning of the Health and Social Care
Professionals Act 2005;
(g) health promotion, and
(h) the provision of advice, information and
counselling in connection with any of the above. [paragraph 1.47]
4.04
The Commission
recommends that, when treating children, health care professionals must give
children an opportunity to express their views and to give these views due
weight, in accordance with the child’s age and maturity. [paragraph 1.59]
4.05
The Commission
recommends that when treating persons under 18, health care professionals must
ensure respect for confidentiality, subject to any specific statutory
obligations to disclose medical records. The Commission further recommends that
this confidentiality must also have regard to the rights of parents and
guardians to access to relevant health information, and that this information
should be given where it would, having regard to all of the circumstances and
to the general principles already set out in this Report, be in the best
interests of the person under 18. [paragraph 1.68]
4.06
The Commission recommends
that, having regard to the general principles already set out in this Report,
the proposed legislative framework on health care treatment should provide
that, in general, a person who is 16 or 17 years of age is presumed, in the
context of any potential civil liability, to have capacity to consent to, and
refuse, health care treatment, as already defined in this Report; that this
capacity is as effective as it would be if he or she were of full age, that is
18 years of age; that the presumption of capacity is subject to contrary
evidence that the person lacks capacity; and that where a 16 or 17 year old has
given such an effective consent to, or refused, any such treatment it shall not
be necessary to obtain any consent for it, or refusal of consent for it, from
his or her parent or guardian. The Commission also recommends that this is
subject to certain other existing legislative limits and requirements,
including existing requirements in, for example, the Control of Clinical
Trials Act 1987, the European Communities (Clinical Trials on Medicinal
Products for Human Use) Regulations 2004, the Child Care Act 1991
and the Mental Health Act 2001. The Commission also recommends that this
should also have regard to planned legislation, such as the proposed Human
Tissue Bill, the proposed Health Information Bill or any proposal, for example,
to regulate access to sunbeds for those under 18. [paragraph 2.155]
4.07
The Commission
recommends that, in the context of refusal of life sustaining treatment by a
person under the age of 18, an application may be made to the High Court to
determine the validity of the refusal. The High Court may order treatment that
is necessary to save life and where this is in the best interests of the person
under 18 years of age. The Commission also recommends that in any such
application the person under 18 shall be separately represented. [paragraph
2.160]
4.08
The Commission
recommends that the legislation proposed in this Report should provide that a
16 or 17 year old is presumed to have capacity to make an advance care
directive. The Commission also recommends that where an advance care directive
is being considered by or for a 16 and 17 year old a specific assessment be
made by a trained and experienced health care professional of that person’s
capacity to understand the nature and consequences of the advance care
directive. [paragraph 2.164]
4.09
The Commission
recommends that the proposed legislative framework should not include a
presumption of capacity for those under 16, but should provide that a person
under 16 may consent to, and refuse, health care treatment where it is
established that he or she has the maturity and understanding to appreciate the
nature and consequences of the specific health care treatment decision. The
Commission also recommends that, in the case of health care treatment involving
those under 16, the usual situation should be that parents or guardians, who
have the primary responsibility for the upbringing and development of
children, are involved in the
decision-making process; that the person under 16 should be encouraged and
advised to communicate with and involve his or her parents or guardians; and
that, therefore, it is only in exceptional circumstances, and 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, that health care treatment would be
provided for those under 16 without the knowledge or consent of parents or
guardians. [paragraph 2.174]
4.10
The Commission also
recommends that the proposed legislative framework should provide that, in
determining whether a person under 16 has the maturity and capacity to consent
to, and to refuse, health care treatment as already defined in this Report, the
following factors are to be taken into account:
(a) whether he or she has sufficient maturity to understand the
information relevant to making the specific decision and to appreciate its
potential consequences;
(b) whether his or her views are stable and a true reflection of his or
her core values and beliefs, taking into account his or her physical and mental
health and any other factors that affect his or her ability to exercise
independent judgement;
(c) the nature, purpose and utility of the treatment;
(d) the risks and benefits involved in the treatment, and
(e) any other specific welfare, protection or public health
considerations, in respect of which relevant guidance and protocols such as the
2011 Children First: National Guidelines for the Protection and Welfare of
Children (or any equivalent replacement document) must be applied. [paragraph
2.175]
4.11
The Commission
recommends that the proposed statutory framework should include, in respect of
potential civil liability, a defence of good faith for health care
practitioners who treat children and young people under 18 years of age. The
Commission recommends that the defence would apply to a health care
practitioner who, acting in good faith and exercising due diligence, makes a
decision to provide medical treatment, or a decision to withhold medical
treatment, in respect of a child or a young person under 18 years of age. The
Commission also recommends that acting in good faith and exercising due
diligence would be defined as where the health care professional acts
consistently with the general principles and specific matters, including as to
assessment of capacity of those under 16, in the proposed statutory framework.
[paragraph 2.177]
4.12
The Commission
recommends that the Minister for Children and Youth Affairs, in consultation
with the Minister for Health, should establish a broad-based Working Group
which would assist the Minister in preparing and publishing a Code of Practice
based on the principles in the proposed statutory framework. The Commission
also recommends that the Code of Practice would provide detailed guidance as to
the application of the proposed statutory framework in the context of all forms
of health care and treatment settings as already defined in this Report.
[paragraph 2.185]
4.13
The Commission
recommends that the Mental Health Act 2001 be amended to include
specific provisions for persons under the age of 18, based on the general
principles already recommended in this Report. The Commission also recommends
that the 2001 Act should be amended to provide:
(a) that children and young people admitted under the 2001 Act should be
accommodated in an environment that is suitable for their age;
(b) that children and young people may only be admitted under the 2001
Act if such an admission is in their best interests, objectively assessed by
reference to their rights;
(c) that the provisions outlined in the Mental Health Commission’s Code
of Practice should be followed to ensure that children and young people the
patient can avail of age appropriate facilities and activities to allow their
personal, social and educational development to continue.
(d) that children and young people should receive the least intrusive
and restrictive treatment possible, in the least restrictive environment
possible, for the shortest possible period in accordance with an individualised
care plan;
(e) that children and young people should be provided with clear
information regarding their proposed admission and treatment in a manner which
is accessible and appropriate with regard to their age and understanding; and
that this information should include details of their legal rights, and it
should include information on the purpose, side effects, and any alternatives
to the proposed treatment.
(f) that children and young people should have access to independent,
specialised advocacy services and should have access to a personal
representative, other than a family member, in circumstances where this is
necessary and appropriate, and
(g) that the protections that apply to adults with respect to mental
health treatment under the 2001 Act should apply equally to persons under 18.
[paragraph 3.82]
4.14
The Commission
recommends that that the Mental Health Act 2001 be amended to provide that a
person who is 16 or 17 years of age is presumed to have capacity to consent to
and refuse healthcare and medical treatment, including psychiatric treatment.
[paragraph 3.86]
4.15
The Commission
recommends that, to avoid any doubt, the recommendations concerning healthcare
decision-making by persons under 16 years of age should also be applied in the
context of mental health, including decisions in respect of admission and
treatment under the Mental Health Act 2001. [paragraph 3.88]
4.16
The Commission
recommends that the proposed Code of Practice already recommended in this
Report should include guidance on appropriate time frames to operate in cases
of voluntary and involuntary admissions. [paragraph 3.91]
4.17
The Commission
recommends the introduction of a third category of “intermediate” admission for
children and young persons who are admitted under the Mental Health Act 2001 by
way of the consent of persons having parental responsibility for them. The
admission and treatment of intermediate patients would be subject to regular
review, in the same manner as involuntary patients. [paragraph 3.94]
4.18
The Commission
recommends that a system of regular review of involuntary admissions be
established, to be carried out by a consultant independent of the consultant
involved in the initial admission. The opinion of the reviewing consultant
should be supported by a second independent opinion. [paragraph 3.101]
4.19
The Commission recommends that the District Court make the initial
decision on admission of
children and young people as involuntary patients for the purposes of the Mental
Health Act 2001, but
that a Mental Heath Tribunal (with an age appropriate focus) rather than the
District Court should review the admission. [paragraph 3.104]
4.20
The Commission
recommends that a consultant psychiatrist initially assess the child in order
to decide which type of admission is appropriate under the circumstances and to
assess whether the minor is providing consent or not, where the child has
capacity to provide such consent. However, where the child has a mental
disorder within the terms of section 25 of the 2001 Act, the choice of a child
to become a voluntary patient could clearly be overridden. [paragraph 3.106]
4.21
The Commission also recommends
that where a child is admitted as an involuntary patient, that individual
should have the option to change their status to a voluntary patient where they
satisfy the relevant criteria. [paragraph 3.107]
4.22
The Commission recommends that persons under 18 years of age who are
admitted as involuntary patients under the Mental Health Act 2001 be
given a statement of information, communicated to them in an age appropriate
manner. [paragraph 3.109]
4.23
The Commission recommends
that all children and adolescents admitted and treated under the Mental
Health Act 2001 should have access to an independent advocate. [paragraph
3.111]
4.24
The Commission
recommends that the proposed Code of Practice recommended in this Report
consider the time frame for review of treatment of persons under the age of 18
under the Mental Health Act 2001, and that an initial review after one
month should be considered in the context of the development of the Code of
Practice. The Commission also recommends that the Code of Practice consider
stricter rules with respect to ECT and psycho-surgery with a view to
prohibiting psycho-surgery for persons under 18 years of age. [paragraph 3.115]
APPENDIX A
draft health
(children and consent to health care treatment) bill 2011[332]
DRAFT HEALTH
(CHILDREN AND CONSENT TO HEALTH CARE TREATMENT) BILL 2011
ARRANGEMENT OF
SECTIONS
Section
1.
Short
title and
commencement
2.
Interpretation
3.
General
principles
4.
Best
interests of child to be primary consideration
5.
Due
weight for views of child in accordance with child’s age and maturity
6.
Confidentiality
7.
Health
care and treatment involving 16 and 17 year old: general
8.
Refusal
of life-sustaining treatment by person under 18 years of age
9.
Advance
care directive by 16 and 17 year old
10. Health care and
treatment involving person under 16 years of age: general
11. Civil liability:
defence of good faith
12. Code of Practice
ACTS
REFERRED TO
Child Care Act 1991 1991, No. 17
Control of Clinical Trials Act 1987 1987, No. 28
Health and Social Care Professionals Act 2005 2005,
No. 27
Mental Health Act 2001 2001, No. 25
DRAFT HEALTH
(CHILDREN AND CONSENT TO HEALTH CARE TREATMENT) BILL 2011
BILL
entitled
AN
ACT TO PROVIDE THAT CHILDREN, THAT IS THOSE UNDER 18 YEARS OF AGE, MAY CONSENT
TO AND REFUSE HEALTH CARE TREATMENT IN ACCORDANCE WITH SPECIFIED PRINCIPLES AND
CONDITIONS; AND TO PROVIDE FOR RELATED MATTERS
BE
IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Short
title and commencement
1.—(1) This Act
may be cited as the Health (Children and Consent to Health Care Treatment) Act
2011.
(2)
This Act comes into operation on such day or days as the Minister for Children
and Youth Affairs, after consultation and with the consent of the Minister for
Health, may appoint by order or orders either generally or with reference to
any particular purpose or provision, and different days may be so appointed for
different purposes or provisions.
Interpretation
2.—(1) In this
Act, unless the context otherwise requires—
“child”
means a person who has not reached the age of 18;
“health
care and treatment” includes—
(a)
the provision of surgical, medical, nursing,
pharmaceutical, dental and mental health care or treatment, including the
prescription or supply of drugs;
(b) any assessment or examination for the purposes of
diagnosis, including invasive exploratory acts;
(c)
any procedure undertaken for the purposes of
preventing a disease or illness;
(d) any procedure which is ancillary to any treatment as
it applies to that treatment (including but not limited to anaesthesia);
(e)
a course of treatment or a group of associated
treatments;
(f)
any treatment carried out by a health or social care
professional, within the meaning of the Health and Social Care Professionals
Act 2005;
(g)
health promotion; and
(h) the provision of advice, information and counselling
in connection with any of the above;
“parent”
has the same meaning as in the Children and Parental Responsibility Act
[20XX].[333]
Explanatory
Note
The
definition of “health care and treatment” in this section implements the
recommendation in paragraph 1.47 of the Report.
General
principles
3. — Every person concerned in the application of this
Act shall have regard to the following general principles—
(a) in light of the role of the
family as the fundamental group in society, and that parents and guardians have
primary responsibility for the upbringing and development of their children,
the State may intervene to supply the place of parents in exceptional
circumstances where this is necessary;
(b) the rights of the child, and
their best interests, must always be taken into account in this context;
(c) a child has rights that are
independent of any right of the parent as such; that these rights are, during
the child’s early years, exercised on behalf of the child, usually by the
child’s parents or guardians; and
(d) these rights remain the
rights of the child as they develop towards maturity and adulthood; and there
are various points, sometimes based on an age threshold and sometimes based on
an assessment of maturity and capacity, at which the law recognises that the
child can exercise these rights independently of their parents or guardians
even before they reach full adulthood at the age of 18.
Explanatory
Note
This
section implements the recommendation in paragraph 1.32 on the guiding
principles to be applied in the legislative framework.
Best
interests of child to be primary consideration
4.— Every person
concerned in the application of this Act shall have regard to the best
interests of the child, assessed objectively by reference to the rights of the
child, as a primary consideration.
Explanatory
Note
This
section implements the recommendation in paragraph 1.35 that the best interests
of the child, assessed objectively by reference to the rights of the child, is
to be a primary consideration in the legislative framework.
Due
weight for views of child in accordance with child’s age and
maturity
5.— When
providing health care and treatment to a child, a health care professional
shall give a child an opportunity to express his or her views and to give these
views due weight, in accordance with the child’s age and maturity.
Explanatory
Note
This
section implements the recommendation in paragraph 1.59 that a child be given
the opportunity to express his or her views and that these be given due weight,
in accordance with the child’s age and maturity.
Confidentiality
6.— (1) When
providing health care and treatment to a child, a health care professional
shall ensure respect for confidentiality,
(2) The confidentiality in this section
—
(a) is subject to any specific
statutory obligations to disclose medical records, and
(b) shall
have regard to the rights of parents and guardians to access to relevant health
information, and this information shall be given where it would, having regard
to all of the circumstances, be in the best interests of the child and to the
general principles in section 3.
Explanatory
Note
This
section implements the recommendations in paragraph 1.68 concerning
confidentiality.
Health
care and treatment involving 16 and 17 year old: general
7.— (1) Subject
to section 8, a person who is 16 or 17 years of age shall be presumed,
in the context of any potential civil liability, to have capacity to consent
to, and refuse, health care and treatment.
(2) The capacity of a person who is 16
or 17 years of age is as effective as it would be if he or she were of full
age, that is, 18 years of age.
(3) The presumption of capacity of a
person who is 16 or 17 years of age is subject to contrary evidence that the
person lacks capacity.
(4) Where a 16 or 17 year old has given
an effective consent to, or refused, any such treatment it shall not be
necessary to obtain any consent for it, or refusal of consent for it, from his
or her parent or guardian.
(5) This section is without prejudice to
other relevant statutory provisions, including the Control of Clinical Trials
Act 1987, the European Communities (Clinical Trials on Medicinal Products for
Human Use) Regulations 2004, the Child Care Act 1991 and the Mental Health Act
2001.
Explanatory
Note
This
section implements the recommendations in paragraph 2.155 concerning the
general position as to health care and treatment involving 16 and 17 year olds.
In general terms, it applies in the civil law setting the approach to consent
involving 16 and 17 year olds already set out in section 23 of the Non-Fatal
Offences Against the Person Act 1997.
Subsection
(5)
implement the specific recommendation in paragraph 2.155 that this general
approach is without prejudice to other current relevant statutory provisions,
including those in the Control of Clinical Trials Act 1987, the European
Communities (Clinical Trials on Medicinal Products for Human Use) Regulations
2004, the Child Care Act 1991 and the Mental Health Act 2001.
Paragraph 2.155 also recommends that this should also have regard to planned
legislation, such as the proposed Human Tissue Bill, the proposed Health
Information Bill or any proposal, for example, to regulate access to
sunbeds for those under 18. These proposed legislative provisions have not been
included in subsection (5).
Refusal
of life-sustaining treatment by person under 18 years of age
8.— (1) Where a
person under the age of 18 refuses life sustaining treatment, an application
may be made to the High Court to determine the validity of the refusal.
(2) The High Court may order treatment
that is necessary to save life and where this is in the best interests of the
person under 18 years of age.
(3) In any such application to the High
Court, the person under 18 shall be separately represented.
Explanatory
Note
This
section implements the recommendations in paragraph 2.160 concerning the
refusal of life-sustaining treatment by a person under 18 years of age.
Advance
care directive by 16 and 17 year old
9.— (1) A person
who is 16 or 17 years of age shall be presumed to have capacity to make an
advance care directive.
(2) Where a person who is 16 or 17 years
of age is considering making an advance care directive, a specific assessment
shall be made by a trained and experienced health care professional of that
person’s capacity to understand the nature and consequences of the advance care
directive.
Explanatory
Note
This
section implements the recommendations in paragraph 2.164 concerning the making
of an advance care directive by a 16 and 17 year old. The Commission’s 2009 Report
on Bioethics: Advance Care Directives (LRC 94-2009) deals with advance care
directives by persons aged 18 years and over.
Health
care and treatment involving person under 16 years of age: general
10.— (1) Subject
to section 8 and subsection (2), a person who is under 16 years
of age shall not be presumed, in the context of any potential civil liability,
to have capacity to consent to, and refuse, health care and treatment.
(2) A person who is under 16 years of
age may consent to, and refuse, health care treatment where it is established
that he or she has the maturity and understanding to appreciate the nature and
consequences of the specific health care and treatment decision.
(3) It shall be presumed, in the case of
health care treatment involving a person under 16 years of age, that parents or
guardians, who have the primary responsibility for the upbringing and
development of children, are involved in the decision-making process.
(4) A person under 16 shall be
encouraged and advised to communicate with and involve his or her parents or
guardians and, therefore, it is only in exceptional circumstances, and 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, that health care and
treatment is provided for those under 16 without the knowledge or consent of
parents or guardians.
(5) In determining whether a person
under 16 has the maturity and capacity to consent to, and to refuse, health
care and treatment, the following factors shall be taken into account —
(a) whether he or she has sufficient maturity to understand the
information relevant to making the specific decision and to appreciate its
potential consequences;
(b)
whether his or her views are stable and a true reflection of his or her core
values and beliefs, taking into account his or her physical and mental health
and any other factors that affect his or her ability to exercise independent
judgement;
(c) the
nature, purpose and utility of the treatment;
(d) the
risks and benefits involved in the treatment; and
(e) any other specific welfare, protection or public health
considerations, in respect of which relevant guidance and protocols such as the
2011 Children First: National Guidelines for the Protection and Welfare of
Children (or any equivalent replacement document) must be applied.
Explanatory
Note
This
section implements the recommendations in paragraph 2.174 and 2.175 concerning
the general position as to health care and treatment involving those under 16
years of age.
Civil
liability: defence of good faith
11.— (1) No civil
liability shall be imposed on a health care practitioner who, acting in good
faith and exercising due diligence, makes a decision to provide medical
treatment, or a decision to withhold medical treatment, in respect of a person
under 18 years of age.
(2) In this section, acting in good
faith and exercising due diligence means where the health care professional
acts consistently with the general principles and specific matters, including
as to assessment of capacity of those under 16, in this Act.
Explanatory
Note
This
section implements the recommendations in paragraph 2.177 concerning the
defence of good faith, in terms of potential civil liability, for a health care
practitioner.
Code
of Practice
12.— (1) The
Minister for Children and Youth Affairs, in consultation with the Minister for
Health, shall establish a Working Group to assist the Minister to prepare and
publish a Code of Practice based on the principles in this Act.
(2) The Code of Practice shall provide
detailed guidance as to the application of this Act in all forms of health care
and treatment settings as defined in this Act.
Explanatory
Note
This
section implements the recommendations in paragraph 2.185 concerning the publication
of a Code of Practice by the Minister for Children and Youth Affairs, in
consultation with the Minister for Health. The Code of Practice, based on the
assistance of a broad-based Working Group, would provide detailed guidance as
to the application of the Commission’s proposed legislative framework in all
forms of health care and treatment settings as defined in the Report.
APPENDIX B
outline
scheme of Mental health (amendment) bill[334]
ARRANGEMENT OF HEADS
Head
1. General principles concerning detention of persons under 18 years of age
Head
2. Presumption of capacity of person who is 16 or 17 years of age
Head
3. General principles concerning persons under 16 years of age
Head
4. Intermediate admission
Head
5. Review of involuntary admissions
Head
6. Review role of District Court and of Mental Heath Tribunal
Head
7. Initial assessment of person under 18 years of age
Head
8. Change from involuntary to voluntary patient
Head
9. Statement of information
Head
10. Access to independent advocate
Head
11. Code of Practice
OUTLINE SCHEME OF MENTAL HEALTH
(AMENDMENT) BILL
Head
1. General principles concerning detention of persons under 18 years of age
(1)
Provide that the Mental Health Act 2001 be amended to include specific
provisions for persons under the age of 18, based on the general principles in
the draft Health (Children and Consent to Health Care Treatment)
Bill in
this Report.
(2)
Provide that the Mental Health Act 2001 be amended to provide:
(a) that children and young
people admitted under the 2001 Act should be accommodated in an environment
that is suitable for their age;
(b) that children and young
people may only be admitted under the 2001 Act if such an admission is in their
best interests, objectively assessed by reference to their rights;
(c) that the provisions outlined
in the Mental Health Commission’s Code of Practice should be followed to ensure
that children and young people can avail of age appropriate facilities and
activities to allow their personal, social and educational development to
continue.
(d) that children and young
people should receive the least intrusive and restrictive treatment possible,
in the least restrictive environment possible, for the shortest possible period
in accordance with an individualised care plan;
(e) that children and young
people should be provided with clear information regarding their proposed
admission and treatment in a manner which is accessible and appropriate with
regard to their age and understanding; and that this information should include
details of their legal rights, and it should include information on the
purpose, side effects, and any alternatives to the proposed treatment.
(f) that children and young
people should have access to independent, specialised advocacy services and
should have access to a personal representative, other than a family member, in
circumstances where this is necessary and appropriate; and
(g) that the protections that apply
to adults with respect to mental health treatment under the 2001 Act should
apply equally to persons under 18.
Note:
this Head implements the recommendations in paragraph 3.82 of the Report.
Head
2. Presumption of capacity of person who is 16 or 17 years of age
Provide
that the Mental Health Act 2001 be amended to include a provision that a person
who is 16 or 17 years of age is presumed to have capacity to consent to and
refuse healthcare and medical treatment, including psychiatric treatment.
Note:
this Head implements the recommendation in paragraph 3.86 of the Report.
Head
3. General principles concerning persons under 16 years of age
Provide
that the Mental Health Act 2001 be amended to provide that the provisions in
the draft Health (Children and Consent to Health Care Treatment)
Bill in
this Report concerning healthcare decision-making by persons under 16 years of
age should also be applied in the context of mental health, including decisions
in respect of admission and treatment under the 2001 Act.
Note:
this Head implements the recommendation in paragraph 3.88 of the Report.
Head
4. Intermediate admission
(1)
Provide that the Mental Health Act 2001 be amended to provide for the
introduction of a third category of “intermediate” admission for children and
young persons who are admitted under the Mental Health Act 2001 by way of the
consent of persons having parental responsibility for them.
(2)
Provide that the admission and treatment of intermediate patients would be
subject to regular review, in the same manner as involuntary patients.
Note:
this Head implements the recommendations in paragraph 3.94 of the Report.
Head
5. Review of involuntary admission
(1)
Provide that the Mental Health Act 2001 be amended to provide for a system of
regular review of involuntary admissions, to be carried out by a consultant
independent of the consultant involved in the initial admission.
(2)
Provide that the opinion of the reviewing consultant should be supported by a
second independent opinion.
Note:
this Head implements the recommendations in paragraph 3.101 of the Report.
Head
6. Review role of District Court and of Mental Heath Tribunal
(1)
Provide that the Mental Health Act 2001 be amended to provide that the District
Court make the initial decision on admission of children and young people as
involuntary patients for the purposes of the Mental Health Act 2001.
(2)
Provide that a Mental Health Tribunal (with an age appropriate focus) rather
than the District Court should review the admission.
Note:
this Head implements the recommendations in paragraph 3.104 of the Report.
Head
7. Initial assessment of person under 18 years of age
(1)
Provide that the Mental Health Act 2001 be amended to provide that a consultant
psychiatrist initially assess the child in order to decide which type of
admission is appropriate under the circumstances and to assess whether the
minor is providing consent or not, where the child has capacity to provide such
consent.
(2)
Provide that, however, where the child has a mental disorder within the terms
of section 25 of the 2001 Act, the choice of a child to become a voluntary
patient could be overridden.
Note:
this Head implements the recommendations in paragraph 3.106 of the Report.
Head
8. Change from involuntary to voluntary patient
Provide
that the Mental Health Act 2001 be amended to provide that where a child is
admitted as an involuntary patient he or she should have the option to change
their status to a voluntary patient where he or she satisfies the relevant
criteria.
Note:
this Head implements the recommendation in paragraph 3.107 of the Report.
Head
9. Statement of information
Provide
that the Mental Health Act 2001 be amended to provide that persons under 18
years of age who are admitted as involuntary patients under the Mental Health
Act 2001 be given a statement of information, communicated to them in an age
appropriate manner.
Note:
this Head implements the recommendation in paragraph 3.109 of the Report.
Head
10. Access to independent advocate
Provide
that the Mental Health Act 2001 be amended to provide that all children
admitted and treated under the Mental Health Act 2001 should have access to an
independent advocate.
Note:
this Head implements the recommendation in paragraph 3.111 of the Report.
Head
11. Code of Practice
(1)
Provide that the proposed Code of Practice already recommended in this Report
should include guidance on appropriate time frames to operate in cases of
voluntary and involuntary admissions.
(2)
Provide that the proposed Code of Practice already recommended in this Report
consider the time frame for review of treatment of persons under the age of 18
under the Mental Health Act 2001, and that an initial review after one month
should be considered in the context of the development of the Code of Practice.
(3)
Provide that the proposed Code of Practice already recommended in this Report
consider stricter rules with respect to ECT and psycho-surgery with a view to
prohibiting psycho-surgery for persons under 18 years of age.
Note:
this Head implements the recommendations in paragraphs 3.91 and 3.115 of the
Report.
[1] Report
on the Third Programme of Law Reform 2008-2014 (LRC 86-2007) Project 26.
[2] Consultation
Paper on Children and the Law: Medical Treatment (LRC CP 59-2009). This is
referred to as the Consultation Paper in the remainder of this Report.
[3] The Commission, in
its Report on Legal Aspects of Family Relationships (LRC 101-2010),
recommended that the term “parental responsibility” should replace the term
“guardianship” in connection with this aspect of family law. Pending the
implementation of this recommendation, the Commission uses the term
“guardianship” in the remainder of this Report.
[4] (LRC 5-1983).
[5] (LRC 83-2006).
[6] The Programme for
Government 2011-2016 (March 2011), at 38, available at www.taoiseach.ie,
contains a commitment to “introduce a Mental Capacity Bill that is in line with
the UN Convention on the Rights of Persons with Disabilities.” The Government
Legislation Programme, Summer Session 2011 (April 2011), available at www.taoiseach.ie,
states that the Mental Capacity Bill is scheduled for publication in
late 2011.
[7] (LRC 94-2009).
[8] (LRC 94-2009) at
paragraph 1.08.
[9] Ibid.
[10] (LRC 101-2010).
[11] See, for example,
the Ferns Inquiry Report (Government Publications, 2005), Report of the Commission to Inquire
into Child Abuse (2009)
(available at www.childabusecommission.com), Dublin Archdiocese Commission
of Investigation Report (2009) (available at www.dacoi.ie) and Report by Commission
of Investigation into Catholic Diocese of Cloyne (December 2010, published July 2011) (available
at www.justice.ie).
[12] See, for example, Report
of the Kilkenny Incest Investigation (Government Publications, 1993) and
Third Report of Joint Committee on the Constitutional Amendment on Children (2010)
(available at www.oireachtas.ie).
[13] The Minister for
Children and Youth Affairs also indicated
that these would be placed on a statutory footing: see The Irish Times 16
July 2011. The Minister for Justice and Equality also published in July 2011
the Scheme of a Criminal Justice (Withholding Information on Crimes against
Children and Vulnerable Adults) Bill 2011 (available at www.justice.ie)
which would, if enacted, require reporting of allegations of child sexual
abuse.
[14] See the examples given in paragraph 1.37,
below.
[15] In North
Western Health Board v HW and CW [2001]
IESC 90, [2001]
3 IR 622 (discussed in paragraph 1.16, below), the Supreme Court
reaffirmed that the pre-constitutional parens patriae jurisdiction
concerning children had, in effect, been subsumed under the courts’ inherent
jurisdiction under the Constitution to vindicate and protect rights where
necessary. In that case, the
Supreme Court declined to intervene to override the refusal of parents to give
their consent to allow doctors to carry out the “heel prick” PKU blood test on
their baby boy, because it was not clearly evident that the refusal threatened
his life or immediate health.
[16] Mason & McCall Smith Law and
Medical Ethics (2006) at 23.
[17] New South Wales
Law Reform Commission, Young People and Consent to Health Care Report
119 (2008), at 31.
[18] Much of the recent
international literature is summarised in Lansdown, The Evolving Capacities
of the Child (UNICEF Innocenti Research Centre, 2005). See also Fortin, Children's
Rights and the Developing Law 3rd ed (Cambridge University
Press, 2009).
[19] See Greene,
“Children as Social Actors”, paper delivered at Irish Human Rights Commission
and Law Society of Ireland Conference on Achieving Rights-Based Child Law (14
October 2006), available at www.ihrc.ie, and Shannon, Fourth Report
of the Special Rapporteur on Child Protection: A Report Submitted to the
Oireachtas (December 2010), available at www.dohc.ie. In the specific context of
this Report, see Logan, “The Rights of Children in Healthcare: the Views of the
Ombudsman for Children” (2008) 14, 2 MLJI 66 and McMahon et al, “The
Prescribing of Contraception and Emergency Contraception to Girls Aged Less
than 16 – What are the Views and Beliefs of GPs and of Parents?” (2010) 16, 2
MLJI 91.
[20] In law, the word
“infant” has often meant a person up to 18 years of age, as was the case in the
Guardianship of Infants Act 1964 as originally enacted. Section 12 of the
Children Act 1997 provides that any reference in the 1964 Act to
“infant” should be read as “child”. In its 2010 Report on Legal Aspects of
Family Relationships (LRC 101-2010), the Commission has recommended that
the 1964 Act be replaced by a Child and Parental Responsibility Act, a
draft Bill for which was appended to the Report.
[21] See the literature
summarised in Lansdown, The Evolving Capacities of the Child (UNICEF
Innocenti Research Centre, 2005) at 23ff.
[22] While adolescence
stretches past 17, the Commission is particularly concerned with the capacity
of 16 and 17 year olds because the age of majority in Ireland is (since the
enactment of the Age of Majority Act 1985) already 18, so that 18 and 19
year olds are already deemed legally competent for most important decisions,
including healthcare decisions.
[23] Alderson, Children’s
Consent to Surgery, (Open University Press, 1993), cited in Lansdown, The
Evolving Capacities of the Child (UNICEF Innocenti Research Centre, 2005),
at 25.
[24] Greene, “Children
as Social Actors”, paper delivered at Irish Human Rights Commission and Law
Society of Ireland Conference on Achieving Rights-Based Child Law (14
October 2006), available at www.ihrc.ie.
[25] In addition to
this category of personal decision-making, three other categories requiring a
protective approach have been noted: protection from physical and emotional
harm, protection from harmful social or economic factors and protection from
exploitation and abuse: see Lansdown, The Evolving Capacities of the Child (UNICEF
Innocenti Research Centre, 2005), at 33.
[26] See, for example,
the discussion in the Commission’s Report on the Age of Majority, the Age
for Marriage and Some Connected Subjects (LRC 5-1983).
[27] The 1985 Act
implemented the main recommendations in the Commission’s 1983 Report on the
Age of Majority, the Age for Marriage and Some Connected Subjects (LRC
5-1983).
[29] See section 52 of
the Children Act 2001, as amended by section 129 of the Criminal
Justice Act 2006. The general age of criminal responsibility is set at 12,
though it is 10 for murder, rape and aggravated sexual assault. This lower age,
which attracted criticism during the Oireachtas debate on the 2006 Act, appears
to have been influenced by the highly-publicised murder in 1993 of a 2-year-old
English boy Jamie Bulger by two children, Robert Thompson and Jon Venables, who
were both 10 at the time.
[30] Thus, the Children
Act 2001, as amended, provides for various interventions to divert young
offenders from the usual court-based consequences of breaches of the criminal
code.
[32] [2006]
1 IR 260, at 268. The case is discussed at paragraph 1.65, below.
[33] (LRC 83-2006).
[34] See section 3 of
the Guardianship of Infants Act 1964, section 24 of the Child Care
Act 1991 and section 24(2) of the Adoption Act 2010, discussed
below.
[35] See the discussion
in Chapter 2 of the various ages below 18 at which persons are deemed competent
for specific purposes.
[36] See the discussion
in the following: Hogan and Whyte (eds) Kelly: The Irish Constitution
4th ed (LexisNexis, 2003), paragraph 7.6.01, fn 1; Hogan,
“DeValera, the Constitution and the historians” (2005) 40 Irish Jurist 293;
and Gallagher, “The Irish Constitution – Its Unique Nature and the Relevance of
International Jurisprudence” (2010) 45 Irish Jurist 22.
[37] Hogan and Whyte
(eds) Kelly: The Irish Constitution 4th ed
(LexisNexis, 2003), paragraph 7.6.01, fn 2, citing Article 6 of the 1949
German Grundgesetz (the German Basic Law, in effect its Constitution)
and section 43(1)(b) of the Australian (federal) Family Law Act 1975.
[38] See, for example,
Australian Law Reform Commission, Family Violence – A National Legal
Response (ALRC Report 114, 2010) paragraph 4.42, referring to the Second
Stage speech on the Family Law Bill (which became the 1975 Act) of
the then Australian Attorney General, Lionel Murphy (who had cited the ICCPR in
this context).
[39] G v An Bord Uchtála [1980] IR 32 at 69.
[40] [2001]
IESC 90, [2001]
3 IR 622, discussed in paragraph 2.28, below.
[41] [2004]
IEHC 4, [2004]
1 IR 12; [2006]
IESC 2, [2006]
1 IR 260, discussed at paragraph 1.65, below.
[42]
See Thomas & O’Kane “When Children’s Wishes and Feelings Clash with their
Best Interests” (1998) 6 International Journal of Children’s Rights 137
at 138, Alston “The Best Interests Principle: Towards a Reconciliation of
Culture and Human Rights” (1994) 8 International Journal of Law & Family
1 at 9. Eekelaar “The Interests of the Child and the Child’s Wishes: The Role
of Dynamic Self-Determinism” (1994) 8(1) International Journal of Law Policy
& Family 42.
[43] [2009] SCC 30,
[2009] 2 SCR 181, discussed at paragraph 2.118, below.
[44] (LRC CP 59-2009 at
6.123).
[45] Kilkelly,
Children’s Rights in Ireland (Tottel Publishing 2008) at 405. For further
discussion, see Consultation Paper at 4.94.
[46] Staff Guidelines in Relation to Obtaining Consent for
Children and Young People (Crumlin Children’s Hospital, December 2007) at
2.2.
[47]
Coyne et al Giving Children a Voice: Investigation of children’s experiences
of participation in consultation and decision-making in Irish hospitals (Office
of the minister for Children 2006) at 57.
[48] See section 24(2)
of the Adoption Act 2010.
[49] See section 24(b)
of the Child Care Act 1991.
[50] Section 6 of The Children (Scotland) Act 1995 reflects
this aspect of the UNCRC: “A person shall, in reaching any major decision which
involves (a) his fulfilling a parental responsibility or the responsibility
mentioned in section 5(1) of this Act or (b) his exercising a parental right or
giving consent by virtue of that section, have regard so far as practicable to
the views (if he wishes to express them) of the child concerned, taking account
of the child’s age and maturity, and to those of any other person who has
parental responsibilities or parental rights in relation to the child (and
wishes to express those views); and without prejudice to the generality of this
subsection a child twelve years of age or more shall be presumed to be of
sufficient age and maturity to form a view.”
[51] Committee on the Rights of the Child
“The Right of the Child to be Heard” (General Comment No.12 of 2009
CRC/C/GC/12) at 98.
[52]
(LRC 101 – 2010), in particular, at paragraphs 4.18 and 4.22.
[53] The
National Children’s Strategy: Our Children Their Lives (Stationary Office
Dublin 2000) at 3.1.
[54] Guide
to Ethical Conduct and Behaviour 6th ed (Medical Council, 2009),
paragraphs 24 and 25.
[55] Disclosure may be
required by law, or may be necessary to protect the patient or others from
harm. Disclosure may also be necessary to protect the public interest.
[56] Freedom
of Information Act 1997 (Section 28(6)) Regulations 1999 (SI No.47 of
1999).
[58] [2006]
1 IR 260, at 268.
[59] Annual
Report of the Information Commissioner 2006 at 21-23, available at
www.oic.gov.ie.
[60] Ms McK had not
spoken to her father for a number of years before the request for information
and contact with her father caused her stress and anxiety. She viewed the
request as an attack on her privacy and did not believe disclosure of the
information would be in her best interests.
[61] (LRC 83-2006).
[62] The Programme
for Government 2011-2016 (March 2011), p.38, available at www.taoiseach.ie,
contains a commitment to “introduce a Mental Capacity Bill that is in line with
the UN Convention on the Rights of Persons with Disabilities.” The Government
Legislation Programme, Summer Session 2011 (April 2011), available at www.taoiseach.ie,
states that the Mental Capacity Bill is scheduled for publication in
late 2011.
[63] The 1985 Act
implemented the main recommendations in the Commission’s Report on the Age
of Majority, the Age for Marriage and Some Connected Subjects (LRC 5-1983).
[64] (LRC
CP 59-2009) at 2.23.
[65] See also the
Commission’s Working Paper The Law Relating to the Age of Majority, the Age
for Marriage and Some Connected Subjects (Working Paper No 2, 1977),
Appendix B “Relationships Between Age and the Law”.
[66] SI No.190 of 2004.
[67] Regulation 2(1) of
the UK Medicines for Human Use (Clinical Trials) Regulations 2004 (SI
1031/2004) (the 2004 Regulations implemented the 2001 Directive) provides:
“‘adult’ means a person who has attained the age of 16 years.”
[68] Draft
Proposals for General Scheme of the Human Tissue Bill 2009 (Department of
Health and Children, 2009), available at www.dohc.ie. The Draft 2009 Bill proposes
to implement the recommendations of the 2006 Report into Post-Mortem
Practice and Procedures (prepared by Dr Deirdre Madden), also available at www.dohc.ie.
[69] Sections 2.17 and
3.11 of the Draft Proposals for General Scheme of the Human Tissue Bill 2009,
65-66 and 97, respectively.
[70] Referred to in Draft
Proposals for General Scheme of the Human Tissue Bill 2009, 66. The Government
Legislation Programme, Summer Session 2011 (April 2011), available at www.taoiseach.ie,
states that the Health Information Bill is scheduled for publication in
2011.
[71] LRC CP 59-2009 at
4.11.
[72] High
Level Framework Brief for the National Paediatric Hospital: Final Report (Health Service Executive and Department of Health and Children, October 2007) at 47.
[73] Temple St
Children’s Hospital, Dublin.
[74] Adelaide and Meath
Hospital, incorporating the National Children’s Hospital, Tallaght.
[75] Our Lady’s
Children’s Hospital Crumlin.
[76] Law Reform
Commission Report on Non-Fatal Offences Against the Person (LRC
45-1994).
[77] Law Reform
Commission Report on Non-Fatal Offences Against the Person (LRC
45-1994), paragraphs 9.166-9.169.
[78] [1985]
UKHL 7, [1985] 3 All ER 402. The Gillick case is discussed
below, paragraph 2.62ff.
[79] Law Reform
Commission Report on Non-Fatal Offences Against the Person (LRC 45-1994)
at paragraph 9.169.
[81] [2006]
1 IR 260. 268. See the discussion at paragraph 1.48ff, above.
[82] D
v Brennan and Ors High Court, 9 May 2007.
[83] (LRC CP 59-2009)
at 4.03.
[84] Ibid
at 4.05.
[85] Section 25 of the
New Zealand Guardianship Act 1968 contains an identical saver.
[86] Law Reform
Commission Report on Non-Fatal Offences Against the Person (LRC 45-1994)
at 9.168.
[87] [1969] 3 All ER
578, discussed at paragraph 2.54, below.
[88] (LRC CP 59-2009)
at 4.07.
[89] [2004]
IEHC 4, [2004]
1 IR 12; [2006]
IESC 2, [2006]
1 IR 260. See the discussion at paragraph 1.65ff, above.
[90] D
v Brennan and Ors High Court, 9 May 2007.
[91] [1996]
2 IR 79. This case, which concerned the removal of artificial feeding and
hydration from a 42 year old woman in a near persistent vegetative state,
attracted a great deal of media coverage at the time. It was, however, heard in
camera and the parties were not identified at the time of the court
proceedings: see Re a Ward of Court (No 1) [1996]
2 IR 73. Ten years later, in 2006, her mother Margaret Chamberlain
wrote to The Irish Times (11 April 2006) identifying herself and naming
her daughter Lucy Chamberlain as the “Ward of Court” in the title of the 1996
case.
[92] [2008]
IEHC 104, [2009] 2 IR 7.
[93] Re
Ward of Court (No 2) [1996] 2 IR 79.
[94] Ibid
at 129.
[95] [2006]
IEHC 392, [2007] 2 IR 406.
[96] [2008]
IEHC 104, [2009] 2 IR 7.
[97] Ibid.
[98] (LRC CP 59-2009)
at 5.09.
[99] Citing Lord
Donaldson in Re T (refusal of medical treatment) [1992]
4 All ER 649.
[100] (LRC 83-2006).
[101] The Programme
for Government 2011-2016, at 38, contains a commitment to “introduce
a Mental Capacity Bill that is in line with the UN Convention on the Rights of
Persons with Disabilities.” The Government Legislation Programme, Summer
Session 2011 (April 2011), available at www.taoiseach.ie, states that the Mental
Capacity Bill is scheduled for publication in late 2011.
[102]
[2001]
IESC 90, [2001]
3 IR 622, discussed at paragraph 2.28, below.
[103] 2009 SCC 30,
[2009] 2 SCR 181, discussed at paragraph 2.119, below.
[104] See paragraph
1.21, above.
[105] G v An Bord Uchtála [1980] IR 32 at 69.
[107]
Re E (a minor) (wardship: medical treatment) [1993] 1 FLR 386,
discussed at paragraph 2.80, below.
[108]
North Western Health Board v HW and CW [2001]
IESC 90, [2001]
3 IR 622, at 701 (judgment of Keane CJ, summarising Re E (a
minor) (wardship: medical treatment) [1993] 1 FLR 386).
[109]
[2004]
IEHC 4, [2004]
1 IR 12; [2006]
IESC 2, [2006]
1 IR 260. See the discussion at paragraph 1.65ff, above.
[110]
[2006]
1 IR 260, 268.
[111]
Hewer v Bryant [1969] 3 All ER 578, 582, discussed at paragraph
2.54, below.
[112] High Court, 9
May 2007. The judgment in this case had not been circulated publicly at the
time of writing (July 2011). The Commission’s discussion of the case in this
Report is based on a number of sources: the detailed discussion in Shannon, Child
Law (Round Hall, 2010), paragraphs 7.06-7.11; the applicant’s submissions
in the case, available at http://www.ihrc.ie/publications/list/ad-minor-submissions;
and newspaper reports of the hearing (The Irish Times, 4-5 May 2007 and
10 May 2007). A transcript of the judgment in the case was made available to
the European Court of Human Rights in connection with its decision in A, B
and C v Ireland [2010]
ECHR 2032: see paragraph 99 of the Court’s judgment.
[115] See paragraph 42
of the applicant’s submissions in the case, available at http://www.ihrc.ie/publications/list/ad-minor-submissions.
[117]
[2006]
1 IR 260, at 268. See the discussion at paragraph 1.65ff, above.
[118] See paragraph 8
of the applicant’s submissions in the case, available at http://www.ihrc.ie/publications/list/ad-minor-submissions
[120]
[1980] IR 32 at 69.
[122]
[2004]
IEHC 4, [2004]
1 IR 12; [2006]
IESC 2, [2006]
1 IR 260. See the discussion at paragraph 1.65ff, above.
[123] [1969] 3 All ER
578, at 582, discussed in paragraph 2.54, below.
[124]
[1985]
UKHL 7, [1985] 3 All ER 402.
[125] 2009 SCC 30,
[2009] 2 SCR 181.
[126] Staff Guidelines
for Obtaining Consent for Non Emergency Treatment/Services from Parents of
Children and Young People under 18 Years of Age. See: http://www.hse.ie/eng/services/Publications/services/Children/medicalconsent.pdf
[127] A father’s right
to consent to medical treatment on behalf of his child is largely dependent on
whether or not the father is a guardian of the child. Currently, non-marital
fathers do not have automatic joint guardianship responsibility. In the
Commission’s Report on Legal Aspects of Family Relationships (LRC
101-2010), the Commission recommended that non-marital fathers should have
automatic joint guardianship responsibility (which the Commission also
recommended should be renamed joint parental responsibility).
[128]
Medical Council’s 2009 Guide
to Professional Conduct and Ethics (7th ed, 2009), available at www.medicalcouncil.ie.
[129] Regulation
16(2)(d) of the Child Care (Placement of Children in Foster Care)
Regulations 1995 (SI No.260 of 1995), made under the Child Care Act 1991,
states that foster parents must seek appropriate medical aid for the child if
the child suffers from illness or injury. Guidance issued by the Department of
Health and Children suggests that foster carers have the capacity to consent to
urgent medical treatment if, in the clinical judgement of the medical
practitioner, it is necessary in the interest of the child’s welfare: see
Appendix 2 of the National Standards for Foster Care (Department of
Health and Children, 2003).
[130] McMahon et al,
“The Prescribing of Contraception and Emergency Contraception to Girls Aged
Less than 16 – What are the Views and Beliefs of GPs and of Parents?” (2010)
16, 2 MLJI 91.
[131]
[1985]
UKHL 7, [1985] 3 All ER 402.
[132] McMahon et al,
“The Prescribing of Contraception and Emergency Contraception to Girls Aged
Less than 16 – What are the Views and Beliefs of GPs and of Parents?” (2010)
16, 2 MLJI 91.
[133]
[1985]
UKHL 7, [1985] 3 All ER 402.
[134] 2009 SCC 30,
[2009] 2 SCR 181.
[135]
Report of the Committee on the Age of Majority (chaired by Latey
J), Cmnd.3342, July 1967.
[136] [1969] 3 All ER
578.
[137] The Hewer case
was decided in June 1969, and the English Family Law Reform Act 1969 was
enacted in July 1969.
[138] This was because
the father thought that (a)
the plaintiff, his son, would make a full recovery and (b) there was no
insurance in place to deal with the type of car crash that had occurred. When
his father later realised that his son was, in fact, quite badly affected by
the accident and that the claims would be covered by insurance, it was too late
for the father to bring proceedings, and this was why the son brought the
claim.
[139] [1969] 3 All ER
578, at 588.
[140] (1883) 24 Ch D
317, at 326, in which Brett MR had stated: “... the law in England... is, that
the father has control over the person, education and conduct of his children until
they are twenty-one years of age. That is the law.”
[141] [1969] 3 All ER
578, at 582.
[142] [1969] 3 All ER
578, at 582 (emphasis added).
[143]
Since 2009, replaced in
terms of its judicial function by the UK Supreme Court.
[144] [1984] 1 All ER
365 (English High Court); [1985] 1 All ER 533 (English Court of Appeal); [1985]
UKHL 7, [1985] 3 All ER 402 (UK House of Lords).
[145] Bainham Children
and the Modern Law (3rd ed Family Law 2005) at 346.
[146]
In the English High Court, in Gillick v West Norfolk and Wisbech Area
Heath Authority [1984] 1 All ER 365 Woolf J had upheld the legality of the
1980 DHSS guidance. The English Court of Appeal overturned that decision
([1985] 1 All ER 533), and the UK House of Lords ultimately took the same view
as Woolf J and upheld the legality of the DHSS guidance
[147] [1969] 3 All ER
578.
[148] [1985] 3 All ER
402, at 422-3.
[149] [1985] 3 All ER
402, at 422-3.
[150] [1985] 3 All ER
402, at 413.
[151]
Best practice guidance for doctors and other health professionals on
the provision of advice and treatment to young people under 16 on
contraception, sexual and reproductive health (English Department of
Health, 2004), available at www.dh.gov.uk.
[152] See sections
38(6), 43(8), 44(7) and paragraphs 4(4)(a) and 5(a) of Schedule 3 of the Children
Act 1989. See Brazier and Bridge “Coercion or caring: analysing adolescent
autonomy” (1996) 16 Legal Studies 84 at 96.
[153]
Re R (a minor) (wardship: consent to medical treatment) [1991] 4
All ER 177.
[154]
Re W (a minor) (medical treatment: court’s jurisdiction) [1992] 4
All ER 627.
[155]
Re W (a minor) (medical treatment: court’s jurisdiction) [1992] 4
All ER 627.
[156]
Re W (a minor) (medical treatment: court’s jurisdiction) [1992] 4
All ER 627 at 635.
[157] Eekelaar “White
Coats or Flak Jackets? Doctors, Children and the Courts-Again” (1993)
109 Law Quarterly Review 182 at 185.
[158]
Devereux et al “Can Children withhold consent to treatment?” (1993) BMJ
1459 at 1460.
[159]
Report on Bioethics: Advance Care Directives (LRC 94-2009),
paragraph 1.106.
[160]
Re E (a minor) (wardship: medical treatment) [1993] 1 FLR 386.
[161]
Re S (a minor) (medical treatment) [1994] 2 FLR 1065.
[162]
Re L (medical treatment: Gillick competency) [1998] 2 FLR 810.
[163]
Re M (medical treatment: consent) [1999] 2 FLR 1097.
[164]
Re P [2004] 2 FLR 1117.
[165]
Re E (a minor) (wardship: medical treatment) [1993] 1 FLR 386.
[166]
[2001]
IESC 90, [2001]
3 IR 622. See the discussion in paragraph 2.28, above
[167]
North Western Health Board v HW and CW [2001]
IESC 90, [2001]
3 IR 622, at 701, judgment of Keane CJ, summarising In re E (a
minor) (wardship: medical treatment) [1993] 1 FLR 386.
[168]
Re E (a minor) (wardship: medical treatment) [1993] 1 FLR 386,
391.
[169]
Ibid, at 393.
[170]
[2008]
IEHC 104, [2009] 2 IR 7, discussed at paragraphs 2.23-2.25, above.
[171] Devereux et al
“Can Children withhold consent to treatment?” (1993) BMJ 1459 at 1459.
[172]
Re M (medical treatment: consent) [1999] 2 FLR 1097.
[173] [2006] 1 FCR
175. See O’Connor, “The Rights of Children to Medical Confidentiality: Gillick
Revisited” (2006) 24 ILT 188 (Part I), 199 (Part II).
[174] Herring Family
Law (3rd ed Pearson Longman 2007) at 427.
[175] Herring Family
Law (3rd ed, Pearson Longman 2007) at 428.
[176]
See paragraphs 2.116ff, below.
[177] Taylor
“Reversing the Retreat from Gillick? R (Axon) v Secretary of State for Health”
(2007) 19(1) Child & Family Law Quarterly 81 at 93.
[178] Gillen, “O
Tempore, O Mores” (2004) 55 NILQ 55 (the Daniel O’Connell Lecture,
delivered at St Malachy’s College, Belfast, 23 November 2003). The title of the
lecture (“Oh the Times, Oh the Customs”) refers to one of Cicero’s famous
oratorical phrases in a speech to the Roman Senate in 63BC condemning the
attempted overthrow of the Roman Republic by Catilina.
[179]
Ibid, at 64-65.
[180]
Ibid, at 65, citing Bainham, “Can we Protect Children and Protect
their Rights?” (2002) 32 Family Law 279
[181]
Ibid, at 65, citing Re A [2001] 1 FLR 715.
[183]
Re Z and T (Freeing Order Application) [2005]
NIFam 6, at para 21 of the judgment. Similarly, in Re Jakub and
Dawid [2009]
NIFam 23, at paragraph 45 of the judgment, Stephens J stated that he
had “taken into consideration the views of the children in accordance
with their age and maturity” in a case involving the recognition and
enforcement of a Polish court’s residence order under Regulation (EC)
No.2201/2003 (“Brussels II bis”) on the recognition and enforcement of
judgments in family proceedings.
[184] Kerr, “Medical
Treatment of Children” (1984) 35 NILQ 185.
[185] Gillian Kerr’s
1984 article was written shortly after the decision of the English High Court
in 1983 in Gillick v West Norfolk and Wisbech Area Heath Authority [1984]
1 All ER 365, in which Woolf J had upheld the legality of the 1980 DHSS
guidance. The article was written before the Court of Appeal had overturned
that decision ([1985] 1 All ER 533) and before the House of Lords ([1985]
UKHL 7, [1985] 3 All ER 402) had ultimately taken the same view as
Woolf J and had upheld the legality of the DHSS guidance.
[186] Kerr, “Medical
Treatment of Children” (1984) 35 NILQ 185, at 193.
[187]
Ibid, at 193.
[189]
Family planning service. HSS(CH)1/87 (Northern Ireland Department
of Health and Social Services, 8 May 1987). See also Re Shearer and Corrie's
Judicial Application [1993] 2 NIJB 12, High Court of Northern Ireland
(Queen’s Bench Division) 22 January 1993 (Carswell J), in which the Court
appeared to accept the applicability in Northern Ireland of the English DHSS
1986 guidance issued after Gillick.
[191] Available at http://www.dhsspsni.gov.uk.
[192] The 2003 Reference
Guide does not refer to any decisions of the Northern Ireland courts. It
was published before the decision in Re Z and T (Freeing Order Application)
[2005]
NIFam 6.
[193]
Reference Guide to Consent for Examination, Treatment or Care (Northern
Ireland Department of Health, Social Services and Public Safety, 2003)
(available at http://www.dhsspsni.gov.uk), Chapter 3, paragraph 2.1, p.20.
[194]
Ibid., Chapter 3, paragraph 2.4, at 21.
[195]
Ibid.
[196]
Ibid.
[197]
Ibid.
[198] Scottish Law
Commission Report on the Legal Capacity and Responsibility of Minors and
Pupils (Report 110 1987).
[199]
Ibid, at 3.67.
[200] Norrie, The
Law Relating to Parent and Child in Scotland (2nd ed W. Green
1999) at 480, Elliston, The Best Interests of the child in Healthcare
(Routledge Cavendish 2007) at 112.
[201]
A Good Practice Guide on Consent for Health Professionals in the NHS
Scotland (Scottish Executive Health Department 2006).
[202] [1996] SCLR 943.
Discussed in the Consultation
Paper: LRC CP 59-2009 at 5.115.
[203] [1996] SCLR 943,
at 945 (Sheriff McGowan).
[204] See LRC CP
59-2009 at 5.117. See Grubb “Refusal of Treatment: Competent Child and Parents”
5 Med. L. Rev. (1997) at 237-259, Elliston The Best Interests of the Child
in Healthcare (Routledge Cavendish 2007) at 114.
[205] Scottish Law
Commission Report on the Legal Capacity and Responsibility of Minors and
Pupils (Report 110 1987) at 3.77.
[206] (LRC CP 59-2009)
at 4.19 to 4.51.
[207] Newfoundland and Labrador:
section 12 of the Child, Youth and Family Services Act 1998, section 3
of the Neglected Adults Welfare Act 1990, section 7 of the Advance
Care Directives Act 1995.
[208] In 1976,
New Brunswick adopted the Medical Consent of Minors Act. British
Columbia: Infants Act 1973 (amended in 1992 to become part of the
Infants Act 1996).
[209] Ontario: Consent to Treatment Act 1992,
replaced by the Health Care Consent Act 1996, codified the common law on
consent to medical treatment. Young people of or above 16 years of age also
benefit from section 2(2) of the Substitute Decisions Act 1992 which
states: “A person who is sixteen years of age or more is presumed to be capable
of giving or refusing consent in connection with his or her own personal care.”
Prince Edward Island: Consent to Treatment and Health Care Directives Act
1999.
[210] See Ferguson The
end of An Age: Beyond Age Restrictions for Minors Medical Treatment Decisions
(Paper prepared for the Law Reform Commission of Canada, 2004) at 8-21 for a
detailed discussion of the relationship between health care consent
legislation, the mature minor rule, child welfare legislation and the parens
patriae jurisdiction of the courts.
[211] 2009 SCC 30,
[2009] 2 SCR 181.
[212]
Ibid at paragraph 46.
[213]
Ibid at paragraph 96.
[214]
Ibid at paragraph 22.
[215]
[1985]
UKHL 7, [1985] 3 All ER 402.
[216]
2009 SCC 30, [2009] 2 SCR 181, at paragraphs 72, 78 and 79.
[217]
Ibid at paragraphs 114-115.
[218]
Ibid at paragraph 96.
[219] South Australia:
Consent to Medical
Treatment and Palliative Care Act 1995. New South Wales: Section 49 of
the Minors (Property and Contracts) Act 1970.
[220]
Secretary, Dept of Health and Community Services v JWB and SMB
(1992) 175 CLR 218.
[221]
[1985]
UKHL 7, [1985] 3 All ER 402.
[222] [2004] WASC 286,
33 Fam. L.R. 223.
[223] 2009 SCC 30,
[2009] 2 SCR 181.
[224] Skegg &
Paterson Medical Law in New Zealand (Thompson Brokers 2006) at 190.
[225]
Ibid at 203.
[226]
Ibid at 189.
[227] McLean “Children
and Competence to Consent: Gillick Guiding Medical Treatment in New Zealand”
(2000) 31 Victoria U Wellington L Rev 551 at 555, Thompson “Whose Right
to Choose? A Competent Child’s Right to Consent to and Refuse Medical Treatment
in New Zealand” (2001-2002) 8 Canterbury Law Review 145 at 177.
[228] See Thompson
“Whose Right to Choose? A Competent Child’s Right to Consent to and Refuse
Medical Treatment in New Zealand” (2001-2002) 8 Canterbury Law Review
145 at 173.
[229] (LRC 83-2006).
[230] Available at
www.justice.ie.
[231] The Programme
for Government 2011-2016 (March 2011), p.38, available at www.taoiseach.ie,
contains a commitment to “introduce a Mental Capacity Bill that is in line with
the UN Convention on the Rights of Persons with Disabilities.” The Government
Legislation Programme, Summer Session 2011 (April 2011), available at www.taoiseach.ie,
states that the Mental Capacity Bill is scheduled for publication in
late 2011.
[233]
[2006]
1 IR 260, at 268. See the discussion at paragraph 1.65ff, above.
[234] (LRC CP
59-2009).
[235] SI No.190 of
2004.
[236] See paragraph
2.07, discussing the Draft Proposals for General Scheme of the Human Tissue
Bill 2009 (Department of Health and Children, 2009), available at www.dohc.ie,
and the Health Information Bill, which is scheduled for publication in
2011.
[237] SI No.190 of
2004.
[238] (LRC 83-2006).
[239] (LRC 94-2009).
[240] Law Reform
Commission Report on Bioethics: Advance Care Directives (LRC 94 -2009)
at 2.
[241] Recommendation
CM/Rec(2009)11 of the Committee of Ministers to member states on principles
concerning continuing powers of attorney and advance directives for incapacity
(9 December 2009).
[242] Law Reform
Commission Report on Bioethics: Advance Care Directives (LRC 94 -2009)
at 1.13.
[243]
[2004]
IEHC 4, [2004]
1 IR 12; [2006]
IESC 2, [2006]
1 IR 260, discussed at paragraph 1.65ff, above.
[244]
D v Brennan and Ors High Court, 9 May 2007, discussed in
paragraph 2.31ff, above.
[245] G v An Bord Uchtála [1980] IR 32 at 69.
[246] [1969] 3 All ER
578, at 582.
[247]
[1985]
UKHL 7, [1985] 3 All ER 402.
[248] 2009 SCC 30,
[2009] 2 SCR 181.
[249]
Medical Council’s 2009 Guide
to Professional Conduct and Ethics (7th ed, 2009), available at www.medicalcouncil.ie.
[250] McMahon et al,
“The Prescribing of Contraception and Emergency Contraception to Girls Aged
Less than 16 – What are the Views and Beliefs of GPs and of Parents?” (2010)
16, 2 MLJI 91, discussed at paragraph 2.50, above.
[251] 2009 SCC 30,
[2009] 2 SCR 181.
[252] 2009 SCC 30,
[2009] 2 SCR 181.
[253]
[2004]
IEHC 4, [2004]
1 IR 12; [2006]
IESC 2, [2006]
1 IR 260, discussed at paragraph 1.65ff, above.
[254] See in
particular the provisional recommendations in the Consultation Paper, at
paragraphs 4.127 (14 and 15 year olds) and 4.128 (12 and 13 year olds).
[255]
Medical Council’s 2009 Guide
to Professional Conduct and Ethics (7th ed, 2009), available at www.medicalcouncil.ie.
[256] Available at http://www.dhsspsni.gov.uk.
[257] 2009 SCC 30,
[2009] 2 SCR 181.
[258]
[1985]
UKHL 7, [1985] 3 All ER 402.
[259] [1969] 3 All ER
578.
[260] In July 2011,
the Minister for Children and Youth Affairs launched the revised 2011 Children First: National
Guidelines for the Protection and Welfare of Children and indicated that these would be
placed on a statutory footing: The Irish Times 16 July 2011. The
Minister for Justice and Equality also published in July 2011 the Scheme of
a Criminal Justice (Withholding Information on Crimes against Children and
Vulnerable Adults) Bill 2011, which would, if enacted, require reporting of
allegations of child sexual abuse.
[261] See Report on Bioethics: Advance Care
Directives (LRC
94-2009), Chapter 4.
[262] McMahon et al,
“The Prescribing of Contraception and Emergency Contraception to Girls Aged
Less than 16 – What are the Views and Beliefs of GPs and of Parents?” (2010)
16, 2 MLJI 91.
[263] See paragraph 15
of the Introduction to the Report, above.
[264]
(LRC 83-2006).
[265] See Report on Bioethics: Advance Care
Directives (LRC
94-2009), Chapter 4.
[266] Available at http://www.dhsspsni.gov.uk.
[267] For this reason,
the Commission’s recommendations in this Chapter have been incorporated into
the Outline Scheme of a Mental Health (Amendment) Bill in Appendix B of
this Report.
[268] (LRC CP 59-2009)
at 1.59
[269] Bates et al Someone
to Turn To Someone to Talk To (Headstrong 2009) at 16.
[270] Child and
Adolescent Mental Health Services: First Annual Report 2008 (Health Service
Executive 2009) at 6.
[271]
Ibid.
[272] Bates et al Someone
to Turn To Someone to Talk To (Headstrong 2009) at 18.
[273]
National Registry of Deliberate Self Harm Ireland: Annual Report 2008
(National Suicide Research Foundation) at i.
[274]
National Office for Suicide Prevention Annual Report 2008 (Health
Service Executive) at 28, National Office for Suicide Prevention Annual
Report 2006 (Health Service Executive) at 26.
[275]
National Registry of Deliberate Self Harm Ireland: Annual Report 2008
(National Suicide Research Foundation) at i.
[276]
Reach Out: National Strategy for Action on Suicide Prevention
2005-2014 (Health Service Executive 2005) at 31.
[277] In 2008, 76.6 %
of referrals were from general practitioners and child health services, 9.4% of
referrals were from educational services, 5.6% were from primary care services,
3.2% of referrals were from social services, 2.7% of referrals were self
referrals and 2.4% of referrals were from other sources. Child and
Adolescent Mental Health Services: First Annual Report 2008 (Health Service
Executive 2009) at 14.
[278]
Get Connected: Developing an Adolescent Friendly Health Service (National
Conjoint Child Health Committee 2001) at 23.
[279] Mental Health
Commission Response to the Law Reform Consultation Paper on Children and the
Law: Medical Treatment (2010) at 10.
[280] Part 2 of the Children
Act 2001.
[281]
Annual Report 2009: Book One Part Two (Mental Health Commission
2010) at 83.
[282]
See Lynch et al “Challenging Times: Prevalence of psychiatric disorders and
suicidal behaviours in Irish adolescents” (2006) 29 Journal of Adolescence
570; Kilkelly Children’s Rights in Ireland (Tottel Publishing 2008) at
433; “Mental Health Services still do not reflect new policies” The Irish
Times 15 May 2009; and “Major gaps still exist in psychiatric teen
services” The Irish Times 31 March 2009.
[283]
Annual Report 2008: Book One Part Two (Mental Health Commission
2009) at 63.
[284]
Annual Report 2008: Book One Part Two (Dublin: Mental Health
Commission 2009) at 63.
[285]
Child and Adolescent Mental Health Services: First Annual Report 2008
(Health Service Executive 2009) at 24.
[286] (LRC CP 59-2009)
at 6.18. See Report of the Inspector of Mental Hospitals for year ending
2003 (Dept of Health and Children 2004) at 25.
[287]
Annual Report 2008: Book One Part One (Mental Health Commission
2009) at 29.
[288] Council of
Europe White Paper on the protection of human rights and dignity of people
suffering from a mental disorder, especially those placed as involuntary
patients in a psychiatric establishment (Council of Europe 2000) at 8.4
[289]
Ibid at 13(2).
[290] Committee on the
Rights of the Child “Adolescent health and development in the context of the
Convention on the Rights of the Child” (General Comment No 4 of 2003
CRC/GC/2003/4 1 July 2003) at 29.
[291] The amendments
made by the 2007 Act to the 1993 Act arose in part from a report published by
the Children’s Commissioner for England, which revealed widespread negative
experiences of young people on adult psychiatric wards. See Pushed into the
shadows - young people’s experiences of adult mental health facilities
(Children’s Commissioner for England, 2007).
[292]
Annual Report 2010: Book One Part Two (Mental Health Commission
2011) at 42.
[293]
Ibid. at 43.
[294] See Bonnar, Report
for the Mental Health Commission on Admission of Young People to Adult Mental
Health Wards in the Republic of Ireland (Mental Health Commission, December
2010), at paragraph 2.4, available at www.mhcirl.ie.
[295] Sections 22, 59
and 69 have been noted in particular as causing considerable confusion.
[296] Mental Health
Commission Response to the Law Reform Consultation Paper on Children and the
Law: Medical Treatment (2010) at 34.
[297] Committee on the
Rights of the Child “Adolescent health and development in the context of the
Convention on the Rights of the Child” (General Comment No 4 of 2003
CRC/GC/2003/4 1 July 2003).
[298]
Code of Practice Mental Health Act 1983 (Department of Health TSO
2008).
[300] See Keyes
“Guarded Welcome for Mental Health Bill 1999” (2000) 6(1) Medico Legal
Journal of Ireland at 29; and deVries “The New Mental Health Bill - Failing
to be Progressive” (2000) 6(1) Medico Legal Journal of Ireland at 26.
[301] Paragraph 3.27
above.
[302]
Headspace Toolkit: For Young People who are inpatients of Mental
Health Services (Mental Health Commission 2009) at 8.
[303] Mental Health
Commission Response to the Law Reform Consultation Paper on Children and the
Law: Medical Treatment (2010) at 9.
[305] (1996) 23 EHRR
33, at paragraphs 76-78.
[306]
(2005)
43 EHRR 96. See also HL v UK [2004]
ECHR 471.
[307]
(2005)
43 EHRR 96 at 113.
[308] See Fenell Mental
Health: The New Law (Jordans, 2007) at 305.
[309] Section 6 of the
New South Wales Mental Health Act 2007.
[310] Section 49 of
the Minors (Property and Contracts) Act 1970.
[311] Section 4 of the
South Australia Mental Health Act 2009.
[312] Section 87 of
the Mental Health (Compulsory Assessment and Treatment) Act 1992.
[313]
(LRC CP 59-2009) at 6.49.
[314] Mental Health
Commission Response to the Law Reform Consultation Paper on Children and the
Law: Medical Treatment (2010) at 10. See also Litwa v Poland (2001)
33 EHRR 53.
[315] (LRC CP 59-2009)
at 6.10.
[316] Mental Health
Commission Code of Practice: Code of Practice Relating to Admission of
Children under the Mental Health Act 2001 (Mental Health Commission 2006)
at 18.
[318] The safeguards
granted to children and young people admitted as involuntary patients under the
2001 Act are discussed at length in the Consultation Paper.
[319] Section 28 of
the Child Care Act 1991.
[320] Section 25(14)
of the Mental Health Act 2001 states: “The provisions of sections 21,
22, 24 to 35, 37 and 47 of the Child Care Act 1991 shall apply to proceedings
under this section as they apply to proceedings under those sections with the
modification that references to proceedings or an order under Part III, IV or
VI of that [1991] Act shall be construed as references to proceedings or an
order under this section and with any other necessary modifications.”
[321] (LRC CP 59-2009)
at 6.83.
[322] (LRC CP 59-2009)
at 6.79.
[323]
Review of the Operation of the Mental Health Act 2001: Findings and
Conclusions (Department of Health and Children 2007) at 28.
[324] There is no
requirement to discuss the proposed treatment with anyone, such as an advocate
for the child, or the child’s parents. It seems that a psychiatrist has
relatively unrestricted decision-making power. See Donnelly “Treatment for a
Mental Health Disorder: The Mental Health Act 2001, Consent and the Role of
Rights” (2005) 40 Irish Jurist at 240.
[325]
Madden Medicine, Ethics and the Law (Butterworths 2002) at 474.
[326] Mental Health
Commission Response to the Law Reform Consultation Paper on Children and the
Law: Medical Treatment (2010) at 17.
[327] See Bonnar, Report
for the Mental Health Commission on Admission of Young People to Adult Mental
Health Wards in the Republic of Ireland (Mental Health Commission, December
2010), discussed at paragraph 3.18, above.
[328] Section 13(4) of
the Child Care Act 1991.
[329] Mental Health
Commission Code of Practice: Code of Practice Relating to Admission of
Children under the Mental Health Act 2001 (Mental Health Commission 2006)
at 18.
[331]
Reference Guide Mental Health Act 2001: Part One Adults (Mental
Health Commission) at 1.8.1
[332] This draft Bill
implements the general reforms set out in the Report. The recommendations In
Chapter 3, which concern the Mental Health Act 2001, are set out in the
Outline Scheme of a Bill in Appendix B.
[333] This refers to
the draft Children and Parental Responsibility Bill in the Commission’s Report
on Family Relationships (LRC 101-2010). The draft Bill in the 2010 Report
would replace, with amendments, the Guardianship of Infants Act 1964, as
amended.
[334] The Commission
has not included these provisions in the draft Health (Children and Consent
to Health Care Treatment) Bill in Appendix A as the Programme for
Government 2011 to 2016 proposes a general review of the Mental Health
Act 2001. The Commission has concluded that it is preferable that the
Outline Scheme of a Bill in this Appendix would form part of that general
review.