The purpose of this paper is to demonstrate that the common and statutory law governing children's capacity or competence to consent to and to refuse medical treatment is…
The purpose of this paper is to demonstrate that the common and statutory law governing children's capacity or competence to consent to and to refuse medical treatment is unsatisfactory and to suggest solutions.
Critical legal analysis of the law on assessing minors’ decision-making capacity in relation to legal recognition of their consent to and refusal of medical treatment.
Without legal mechanisms which protect both children and their rights, all children and young people are effectively disabled from exercising age and capacity-related autonomy and participation in decisions affecting their lives. Yet in English law, inconsistencies between legal and clinical measures of decision-making capacity, situations where compulsory medical or mental health treatment is lawful, and tensions between rights and duties associated with human rights, autonomy, best interests and protections for the vulnerable create difficulties for clinicians, lawyers and patients.
As the paper acknowledges in its recommendations, the views of stakeholders are needed to enrich and inform legal reforms in this area.
The paper makes suggestions to amend the law and clinical practice which are original and far reaching. The paper suggests that in order to observe children's rights while protecting them appropriately, the Mental Capacity Act 2005 and Deprivations of Liberty Safeguards should be applied to minors. The paper recommends the establishment of Mental Capacity Tribunals, similar in nature and purpose to Mental Health Tribunals, to provide legal safeguards and mechanisms to foster the supported decision-making envisaged in recent United Nations Conventions.
Legal standards that allow teens to make health care decisions, or any important decisions, must account for the contingency and variability of minors’ capacity…
Legal standards that allow teens to make health care decisions, or any important decisions, must account for the contingency and variability of minors’ capacity. Traditional law denied minors’ legal authority to make any decisions, giving all power to parents. This rule goes too far; the Supreme Court has held that minors have constitutionally protected autonomy-based rights, and modern views about adolescence are inconsistent with the rule. The question is how and where to draw lines.
Legal standards are based on minors’ evolving maturity, policy favoring decisions that follow medical advice, and policy supporting parental authority. This paper uses four hard cases to show how these considerations factor into legal rules.
This chapter draws on data from a qualitative study examining the extent to which children and young people age 7 to 17 are able to participate and influence matters…
This chapter draws on data from a qualitative study examining the extent to which children and young people age 7 to 17 are able to participate and influence matters affecting them in their home, school, and community. It was commissioned by the Department of Children and Youth Affairs in Ireland to inform the National Strategy on Children and Young People’s Participation in Decision-Making, 2015–2020. Utilising Lundy’s (2007) conceptualisation of Article 12 of the UN Committee on the Rights of the Child and Leonard’s (2016) concept of generagency, this chapter will examine children and young people’s everyday lives and relationships within the home and family in the context of agency and structure.
In the study, home was experienced by children generally as the setting most facilitative of their voice and participation in their everyday lives reflecting research findings that children are more likely to have their initiative and ideas encouraged in the family than in school or their wider communities (Mayall, 1994). Key areas of decision-making included everyday consumption activities such as food, clothes, and pocket money as well as temporal activities including bed-time, leisure, and friends. This concurs with Bjerke (2011) that consumption of various forms is a major field of children’s participation. Positive experiences of participation reported by children and young people involved facilitation by adults whom they respected and with whom they had some rapport. This locates children as relational beings, embedded in multiple overlapping intergenerational processes and highlights the interdependency between children’s participation and their environment (Leonard, 2016; Percy-Smith & Thomas, 2010).
The purpose in writing this paper is to highlight the lack of knowledge of many who are involved in capacity assessments, especially non‐professionals such as carers of…
The purpose in writing this paper is to highlight the lack of knowledge of many who are involved in capacity assessments, especially non‐professionals such as carers of the learning disabled, and the view that current guidance for capacity assessments does not take into account issues of emotionality.
The approach is to discuss current guidance and practice, and to offer academic criticism and explanation.
The findings include the discovery that the Mental Capacity Act 2005 Code of Practice suggests that healthcare professionals and family/carers may undertake assessments of decision‐making capacity, yet the guidance it provides for their doing so overlooks salient issues. Many of those involved in the daily lives of those, who may lack decision‐making capacity (and thus be seen as legally incompetent) such as the learning disabled, demented, mentally ill and neurodiverse, must decide whether to respect their decisions as competent, or to disregard the decisions on the grounds of incompetence and to act in the person's best interests. As many will lack training in their clinical and legal responsibilities and liabilities, it is crucial that they, and those they care for, are protected by not only an increased knowledge of mental capacity legislation and practice, but also how it may apply to questions of emotionality and neurodiversity.
This paper expands and builds on the authors' previous research into including emotionality in assessments of capacity, and will be of use to practitioners in the field of learning disability, and other psychiatric specialities.
Much of the discussion of capacity to consent has focused on how capacity can be assessed. However, in focusing on the assessment of capacity of people with learning…
Much of the discussion of capacity to consent has focused on how capacity can be assessed. However, in focusing on the assessment of capacity of people with learning disabilities, information from studies of human judgement and decision‐making in the general population has been ignored. This paper reviews the main factors that affect an individual's capacity to consent and examines the integration of research into these factors in the general population with that of people with learning disabilities. A person's capacity to consent is considered to be affected by three main processes: comprehension (ability to understand and retain information), decision‐making (ability to weigh up information and reach a decision) and communication (ability to communicate the decision made). The difficulties people with learning disabilities may have in these processes are discussed, and possible ways of overcoming these limitations are suggested.
In this chapter, I examine stories that foster care youth tell to legislatures, courts, policymakers, and the public to influence policy decisions. The stories told by…
In this chapter, I examine stories that foster care youth tell to legislatures, courts, policymakers, and the public to influence policy decisions. The stories told by these children are analogized to victim truth testimony, analyzed as a therapeutic, procedural, and developmental process, and examined as a catalyst for systemic accountability and change. Youth stories take different forms and appear in different media: testimony in legislatures, courts, research surveys or studies; opinion editorials and interviews in newspapers or blog posts; digital stories on YouTube; and artistic expression. Lawyers often serve as conduits for youth storytelling, translating their clients’ stories to the public. Organized advocacy by youth also informs and animates policy development. One recent example fosters youth organizing to promote “normalcy” in child welfare practices in Florida, and in related federal legislation.
This study replicated an earlier study conducted in the USA and examined Israeli families’ decision making regarding various products and decision‐making stages. The…
This study replicated an earlier study conducted in the USA and examined Israeli families’ decision making regarding various products and decision‐making stages. The results revealed that teenage children have influence over family purchases, particularly for products relevant to them (like cereal and vacations) and during the initiation stage. Moreover, consistent with the ranking of Israel as a low power‐distance country, Israeli teens had higher influence than US teens on family decisions.
As numerous scholars have noted, the law takes a strikingly incoherent approach to adolescent reproduction. States overwhelmingly allow a teenage girl to independently…
As numerous scholars have noted, the law takes a strikingly incoherent approach to adolescent reproduction. States overwhelmingly allow a teenage girl to independently consent to pregnancy care and medical treatment for her child, and even to give up her child for adoption, all without notice to her parents, but require parental notice or consent for abortion. This chapter argues that this oft-noted contradiction in the law on teenage reproductive decision-making is in fact not as contradictory as it first appears. A closer look at the law’s apparently conflicting approaches to teenage abortion and teenage childbirth exposes common ground that scholars have overlooked. The chapter compares the full spectrum of minors’ reproductive rights and unmasks deep similarities in the law on adolescent reproduction – in particular an undercurrent of desire to punish (female) teenage sexuality, whether pregnant girls choose abortion or childbirth. It demonstrates that in practice, the law undermines adolescents’ reproductive rights, whichever path of pregnancy resolution they choose. At the same time that the law thwarts adolescents’ access to abortion care, it also fails to protect adolescents’ rights as parents. The analysis shows that these two superficially conflicting sets of rules in fact work in tandem to enforce a traditional gender script – that self-sacrificing mothers should give birth and give up their infants to better circumstances, no matter the emotional costs to themselves. This chapter also suggests novel policy solutions to the difficulties posed by adolescent reproduction by urging reforms that look to third parties other than parents or the State to better support adolescent decision-making relating to pregnancy and parenting.
Focus of previous research into family purchasing decisions has centred on the husband and wife. Children's influences on family decision making have increased in recent…
Focus of previous research into family purchasing decisions has centred on the husband and wife. Children's influences on family decision making have increased in recent decades. The purpose of this paper is to investigate children's influences on Chinese family decision making in Hong Kong.
The study is based on a survey of 366 family members in Hong Kong.
Children are found to have more influence in the choice‐making stage of decision making and parents still control the final decision, which is consistent with previous research findings.
Parents and their children usually engage jointly in family decision making. Marketers should address the needs of both parties and work to help to resolve any conflict that may arise.
The study is framed within resources theory to examine children's influence in two decision stages of family decision making.
This article addresses the difficult matter of interpreting the best interest principle, and offers advice for those who must make laws, and those who make decisions…
This article addresses the difficult matter of interpreting the best interest principle, and offers advice for those who must make laws, and those who make decisions within the constraints of those laws. Our approach rests on an assumption that conclusions about best interest are best reached through a reasoned deliberative process. We suggest that legislators should not write substantive assumptions about what is best for every child into their laws; rather, they should indicate a non‐exhaustive list of key relevant considerations that decision‐makers can review and evaluate in each and every case. Further, the child's own perspective should be imperative in all deliberations about best interest, and a distinction must be made between objective fact and what is invoked as a substantive and contestable assumption. The article supplies a benchmark against which we may review and judge the actual efforts of legislators and decision‐makers to determine what is best for any child.