The sad case of Hannah Jones (BBC Story) aptly demonstrates the contradictory nature of current English Law. For Hannah, the decision to drop legal proceedings is clearly the right decision and for her sake I am very glad that her wishes are to be respected. It does seem to me though that had her case come to court it would have been a perfect opportunity to correct the current state of the law on consent for medical treatment of minors.
For adults, the law is very clear. Any adult who has capacity (which means they have sufficient understanding of the issues to make their own decision) has an absolute right to refuse medical treatment regardless of the consequences to their health. The only exceptions to this are in cases where there are public health or public safety implications.
Necessarily the law is somewhat different for individuals under the age of
18. Parents (or those with parental responsibility) have the right and
responsibility to consent to or refuse medical treatment. If doctors feel
that parents are not acting in the best interests of the child then they
may appeal to the High Court for a child to be made a ward of court and
then have the court decide on appropriate treatment. By statute,
individuals aged 16 to 18 years can give consent for their own treatment.
In the case of Gillick v W Norfolk and Wisbech AHA the principal of what
was termed Gillick competence (now correctly referred to as Fraser competence) was established. This principal states that once a child has obtained sufficient maturity and understanding to appreciate the significance and implication of a decision they may consent to their own medical treatment. The problem comes with the refusal of medical treatment. Lord Donaldson in the cases Re R and Re W set the precedent that whilst a Fraser-competent child may consent to treatment, if they refuse treatment then this refusal may be overridden by the parents or if the parents refuse, then it may be overridden by the court. In Re R Donaldson used the analogy of three ‘key-holders’ to unlock treatment, the child, the parents and the court each holding a key. In the case Re W, Lord Donaldson wrote: "… I now prefer the analogy of the legal ‘flak jacket’, which protects from claims by the litigious whether [the doctor] acquires it from his patient who may be a minor over the age of sixteen, or a ‘Gillick Competent’ child under that age or from another person having parental responsibilities which include a right to consent to treatment of the minor. Anyone who gives him a flak jacket (i.e. consent) may take it back, but the doctor only needs one and so long as he continues to have one he has the legal right to proceed.” As a doctor, I find the phraseology of a ‘legal flak-jacket’ both worrying and offensive.
As the law stands, the hospital looking after Hannah were acting completely within the law and the court could have ordered that Hannah undergo a heart transplant. The implications of such a decision would clearly be massive for both her and her family, not to mention the practical problem of administering an anaesthetic to an unwilling 13 year old.
It seems to me that a child who is competent to consent to treatment must also be sufficiently competent to know that for her, a transplant is not what she wants even if that means her life is shortened. Whilst the doctors have and must have a duty to establish that a child is both competent and protected from coercion and abuse, the idea that a mature teenager who clearly understands the decision and does not want such a massive operation, can have her wishes overridden by her parents or the courts is somewhat troubling. If she were 18, no one would dispute her decision. I
believe that the law in this area is not only contradictory but also wrong.
For Hannah Jones, I am very pleased that her wishes will be respected and my prayers are with her and her family. However I think that the law does badly need changing and without the will of parliament to legislate is will require a case like this one to correct this dangerous contradiction.
I think Lord Donaldson was very unwise and plain wrong in his rulings