Capacity II:
Children:
- Usually parents give consent to their child’s medical treatment.
- But their decision can be overridden by the court, applying the ‘best interests’ test - child’s interest is paramount
- Children Act 1989 section 1
o (1) When a court determines any question with respect to—
(a) the upbringing of a child …
… the child’s welfare shall be the court’s paramount consideration.
- Eg In Re C (A Child)(HIV Testing) [2000] Fam. 48
o Butler Sloss LJ
This child has the right to have sensible and responsible people find out whether she is or is not HIV
positive
Meaning of best interests?
General Medical Council, 0–18 Years: Guidance for all Doctors (GMC, 2018).
- 12. An assessment of best interests will include what is clinically indicated in a particular case. You should also consider:
o a. the views of the child or young person, so far as they can express them, including any previously expressed
preferences
o b. the views of parents
o c. the views of others close to the child or young person
o d. the cultural, religious or other beliefs and values of the child or parents
o e. the views of other healthcare professionals involved in providing care to the child or young person, and of
any other professionals who have an interest in their welfare
o f. which choice, if there is more than one, will least restrict the child or young person’s future options.
Not restricted to clinical best interests
If a child is able to express her own wishes, these are relevant, regardless of whether she is Gillick-
competent.
For example, unlikely that sterilisation would be found to be in the best interest as it isn’t the
least restrictive alternative.
Court involvement if:
- (a) disagreement between mother & father, or
- (b) disagreement between parents and doctors, or
o More common
- (c) disagreement between mature minor and doctors, or
- (d) controversial medical treatment...
o In essay, talk about children and mature minors separately as their issues are really different
Best interests?
- This test applies with reference to young children. Facts and test are clear, nature of cases are really factually difficult.
- US Example:
o Named the ‘Ashley Treatment’-
In the UK, would’ve had to have gone to the courts
Ashley was profoundly disabled- couldn’t sit up unaided.
Parents wanted doctors to give her various treatments [remove her uterus, appendix and breast buds] to
stop her going through puberty and to keep her small- as she got bigger, she would’ve had to be carried
through hoist. Would be better if her parents could carry her- parents believed it would be in her best
interest if they could cuddle her.
Parents saying that they’re doing it for the child’s benefit- but has been criticised a lot
Rather, should adapt the environment to care for her, rather than adapt her body- this would be
the least restrictive alternative. Using long lasting contraceptives and better equipment.
o But unfair, don’t know their lives and what they could actually afford.
Courts agreed that the treatment was in her best interests.
N Tan and Iain Brassington:
The direct benefits to Ashley of this invasive treatment were minimal. The treatment didn’t
address any existing symptoms nor did it change her underlying disease.
The court merely found that: ‘the primary benefit offered by growth attenuation is the
potential to make caring for the child less burdensome and therefore more accessible.’
o A shift from the benefits Ashley would gain to the conveniences of her career.
Unclear whether this justifies the treatment.
The treatment might represent less of an attempt to meet the challenges of Ashley’s condition
that an attempt not to have to meet them.
Re JS [Disposal of Body] [2016] EWHC 2859:
- Facts:
o Novel case.
o Involved 14 year old who was dying of cancer
o She wanted her body to be taken to the US for cryonic preservation. JS’s mother supported the decision but the
father did not- as she was a minor, she couldn’t make a will appointing her mother as her executor.
Children:
- Usually parents give consent to their child’s medical treatment.
- But their decision can be overridden by the court, applying the ‘best interests’ test - child’s interest is paramount
- Children Act 1989 section 1
o (1) When a court determines any question with respect to—
(a) the upbringing of a child …
… the child’s welfare shall be the court’s paramount consideration.
- Eg In Re C (A Child)(HIV Testing) [2000] Fam. 48
o Butler Sloss LJ
This child has the right to have sensible and responsible people find out whether she is or is not HIV
positive
Meaning of best interests?
General Medical Council, 0–18 Years: Guidance for all Doctors (GMC, 2018).
- 12. An assessment of best interests will include what is clinically indicated in a particular case. You should also consider:
o a. the views of the child or young person, so far as they can express them, including any previously expressed
preferences
o b. the views of parents
o c. the views of others close to the child or young person
o d. the cultural, religious or other beliefs and values of the child or parents
o e. the views of other healthcare professionals involved in providing care to the child or young person, and of
any other professionals who have an interest in their welfare
o f. which choice, if there is more than one, will least restrict the child or young person’s future options.
Not restricted to clinical best interests
If a child is able to express her own wishes, these are relevant, regardless of whether she is Gillick-
competent.
For example, unlikely that sterilisation would be found to be in the best interest as it isn’t the
least restrictive alternative.
Court involvement if:
- (a) disagreement between mother & father, or
- (b) disagreement between parents and doctors, or
o More common
- (c) disagreement between mature minor and doctors, or
- (d) controversial medical treatment...
o In essay, talk about children and mature minors separately as their issues are really different
Best interests?
- This test applies with reference to young children. Facts and test are clear, nature of cases are really factually difficult.
- US Example:
o Named the ‘Ashley Treatment’-
In the UK, would’ve had to have gone to the courts
Ashley was profoundly disabled- couldn’t sit up unaided.
Parents wanted doctors to give her various treatments [remove her uterus, appendix and breast buds] to
stop her going through puberty and to keep her small- as she got bigger, she would’ve had to be carried
through hoist. Would be better if her parents could carry her- parents believed it would be in her best
interest if they could cuddle her.
Parents saying that they’re doing it for the child’s benefit- but has been criticised a lot
Rather, should adapt the environment to care for her, rather than adapt her body- this would be
the least restrictive alternative. Using long lasting contraceptives and better equipment.
o But unfair, don’t know their lives and what they could actually afford.
Courts agreed that the treatment was in her best interests.
N Tan and Iain Brassington:
The direct benefits to Ashley of this invasive treatment were minimal. The treatment didn’t
address any existing symptoms nor did it change her underlying disease.
The court merely found that: ‘the primary benefit offered by growth attenuation is the
potential to make caring for the child less burdensome and therefore more accessible.’
o A shift from the benefits Ashley would gain to the conveniences of her career.
Unclear whether this justifies the treatment.
The treatment might represent less of an attempt to meet the challenges of Ashley’s condition
that an attempt not to have to meet them.
Re JS [Disposal of Body] [2016] EWHC 2859:
- Facts:
o Novel case.
o Involved 14 year old who was dying of cancer
o She wanted her body to be taken to the US for cryonic preservation. JS’s mother supported the decision but the
father did not- as she was a minor, she couldn’t make a will appointing her mother as her executor.
