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In 1996 Brazier and Bridge raised the question ‘is adolescent autonomy truly dead and buried’ following judicial decisions, which had seemed to rather reverse the Gillick-inspired trend for greater children’s decision making in their healthcare.

(1) Whilst they argued that things were a little more complex, subsequent judgements have rather re-enforced the legal limitations on the refusal of young people as far as medical therapy is concerned. In case anybody felt things might be changing a recent case has further clarified that the Court’s in England and Wales consider the overriding of the autonomy of those under 18-years of age regarding medical treatment by the Court, even of the young person is assessed as competent, to be justified in the child’s best interests.

An NHS Foundation Trust Hospital v P [2014] EWHC 1650 (Fam)

'Application for, inter alia, a declaration that it was lawful for medical practitioners entrusted with a 17-year old patient's care to treat her for an overdose notwithstanding that she refused treatment. The Application was granted.'

•             A 17 year old female, P, with a history of self-harm, took an overdose of Paracetamol then refused consent to urgent treatment for Paracetamol (within 8 hours) to avoid liver failure and death. A psychiatrist was clear that although P suffered from a personality disorder, she had capacity to make decisions about medical care. 

•             The Trust applied to Court for a declaration that (i) it was lawful to treat P for the overdose despite her refusing treatment and that (ii) steps that might amount to a deprivation of her liberty i.e. restraining or sedating her in order to treat as per (i) were lawful

•             The Honourable Mr. Justice Baker considered similar cases (i) Re W (a minor) (medical treatment: court jurisdiction) [1993] and (ii) Re P (Medical Treatment: Best Interests) [2004], to support the premise that if a child under 18 - even if Gillick competent - refuses treatment the court may override the child's wishes if it is in the child's best interests. 

Further clarification that young people below the age of 18 remain children under law. They are assumed to have capacity to consent to medical therapy if they over 16 years, whereas below 16 years they can be determined to be competent as influenced by the Gillick judgement. However, refusal of medical therapy considered in one's best interests is clearly now for those over 18 years…..

 

Mr J Baker comment about his judgement in 18 'I repeat that I have taken account of P's wishes and feelings.’ without 'speaking directly to P herself.’

While acknowledging the urgency of delivering such a decision, this comment does raise a question about whether, in our 24 hour world, it is reasonable to make decisions that profoundly affect a person with capacity without actually speaking to them directly.

 

 

(1) Brazier M, Bridge C.Coercion or caring: analyzing adolescent autonomy. Legal Studies. 1996; 16(1) March: 84–109