10.2.2 Capacity to refuse treatment
Although the principle of Gillick competence' was clearly meant to apply to all medical treatment decisions, rather than just to consent, the law will not allow teenagers to refuse essential treatment. The case ofRe W a minor)medical treat- ment: court's jurisdiction)41992) confirmed that children, whatever their age or maturity, lack power to override the consent which a person with parental responsibility gives in their best interests. Sixteen year old W's severe anorexia meant that she was close to death at the time of the legal proceedings. The local authority which had parental responsibility for her, wished her to receive treat- ment at a clinic which W refused to attend. The Court of Appeal overruled her refusal, holding that neither section 8 of the Family Law Reform Act 1969 nor the concept ofGillick competence' applied to refusal of treatment. The judges, alive to
the family conflicts which might ensue when teenagers and their parents disagree
about treatment, did however suggest that health professionals should, as a matter
of ethics, refer difficult cases to court. They also emphasised that the views of
teenage patients must be explored and given due weight in accordance with their
age and maturity.
The guidance given by the Court of Appeal inRe Wwas adopted in the recent
case ofRe M child: refusal of medical treatment)41999). M was a 15 year old girl
who suffered the sudden onset of heart failure. It became clear that her survival
depended on her undergoing a heart transplant. Although M herself opposed the
procedure, her parents agreed with her health care team that the transplant was in
her best interests. There was thus sufficient legal consent for the proposed trans-
plant to go ahead, but in view of what had been said inRe W,the health authority
decided to refer the case to court. The urgency of the situation meant that a duty
judge had to be contacted, and the decision made overnight. M's views were
conveyed to the judge via her solicitor, and although they were overridden, the
judge prepared a careful record of his reasoning for M's benefit.
Decisions likeRe WandRe Mwould have little effect if they could not be
implemented. The courts have recognised that force may be needed if essential
treatment is to be delivered to an unwilling young patient. Although orders
authorising a minimum degree of force or restraint are issued sparingly and
cautiously they are available on application to the court [10]. The Royal College of
Nursing has issued guidance on the problems related to forcing young people to
undergo treatment [11].
10.2. 3Participating in decision making
To nursing staff caring for teenage patients, the law may not seem sensitive enough
to the principle of respect for autonomy. However, the rather limited scope which
teenagers in the past had to affect treatment decisions, acquired new potential for
growth under the European Convention on Human Rights. Its emphasis on the
significance of human life 4Article 2), of due process 4Article 6) and family privacy
4Article 8), is likely to result in new respect for a young person's point of view and
right to participate in the decision-making process.
Attention should also be paid to the provisions of the Convention on Human
The Critically Ill Patient 201