The debate of whether confidentiality and treatment of young persons should be one based on age or understanding has long been prevalent. Our system is one based on age. However, this gives rise to discrimination based on age and does not reflect the young adult’s wishes when seeking medical treatment. Consequently, this gives rise to reluctance among young adults from seeking medical treatment.
The United Nations Convention on the Rights of the Child lays down that the right of participation belongs to all children and due weight to their opinion is given according to their age and maturity.
Medical law must be brought inline with the United Nations Convention on the Rights of the Child
Thus, the Convention gives recognises the fact that age by itself should not be the sole criterion but maturity should be considered. In other words, understanding should be given equal footing.
In the case of young adult minors, that is, minors in their mid to late teens, it is highly unlikely that these do not have the sufficient understanding to consent to treatment.
The cut-off age of 18 is artificial, to say the least, because one cannot be deemed to be incompetent at 17 and then, once the person turns 18, s/he is deemed to have suddenly acquired competence.
Competency is a process that is not gained once one passes the cut-off age but is slowly gained as part of the growing up process. This was highlighted by Justice Thorpe in Re C (Adult: Refusal of Medical Treatment) wherein Justice Thorpe defined the legal test for competence as being “first comprehending and retaining information, secondly, believing it, and thirdly, weighing it in the balance to arrive at a choice” (M Shaw, Competence and Consent to Treatment in Children and Adolescents (2001) 7 APT 150, 151 citing Re C (Adult: Refusal of Treatment) (1994) 1 FLR 31, 37.).
The British Medical Association and the Law Society, in Assessment of Mental Capacity, Guidance for Doctors and Lawyers (BMA, London 1995) (M Shaw, Competence and Consent to Treatment in Children and Adolescents (2001) 7 APT 150, 151) suggested that a child’s competence should include:
The ability to understand that there is a choice and that the choices have certain consequences.
The willingness and ability to make a choice even if that choice entails that someone else makes a choice for you.
The understanding of the nature and purpose of the procedure.
The understanding of the risks and side-effects of the procedure.
The understanding of the alternative treatments available and of their risk and the understanding of choosing not having any kind of treatment.
There is freedom from any kind of pressure.
This notion has been developed in an article by Pierre Mallia, Bridget Ellul and Jurgen Abela entitled Attitudes of Family Doctors, attached to the Department of Family Medicine, towards consulting and treating young people published in the Malta Medical Journal.
The study expounded in the article “aimed to assess the perception of doctors to seeing young adults alone since they are considered vulnerable because of their age and may not express concerns and practices if in front of parents or guardians. In this regard, a questionnaire was delivered to family doctors attached with the Department of Family Medicine at the University of Malta” (MMJ 24 (2012); 3:34-38, 34).
The results to the questionnaire were the following: “the response rate was 72.5 peer cent. Most respondents were males. Most (89.6 per cent) agreed that YP (young patients) have a right to speak to the family doctor alone. Doctors are happy to discuss various topics with YP alone but, in certain issues, find difficulty in providing treatment to YP alone. There seems to be a significant difference in attitude towards the sex of the doctor with respect to the sex of the patient” (MMJ 24 (2012); 3:34-38, 34).
In the case of Gillick v. West Norfolk and Wisbech Area Health Authority, the age versus understanding debate was put to the test, wherein the House of Lords recommended that the arbitrary chronological age should be replaced by a test of maturity. And, in fact, the practice in England today is that, prior to providing medical treatment, the practitioner must assess and determine whether a child below 16 years of age (because those older are deemed competent to consent) has the required understanding and maturity to arrive to an informed decision about the proposed treatment.
The above study can be compared to another conducted among schoolchildren in Malta where the majority of respondents stated that they should be the primary decision-makers – 84 per cent of males aged 16-18 and 80 per cent of females aged 16-18 (AM Mangion, Competency and Best Interests of the Child Relating to Health Issues: a Maltese and International Legal Perspective. Berlin: VDM Verlag Dr Muller; 2010.).
It is interesting to note that among the children subject to this study there was a good number who sought medical help by themselves and were treated or given advice by the medical professionals.
Medical law needs to be brought in line to reflect the United Nations Convention on the Rights of the Child and also with Maltese societal attitudes and changes to child competency in medical decisions.
Ann Marie Mangion is a lawyer with a special interest in family and child law.