ANALYSIS:THE REPORT on the legal aspects of children requiring medical treatment raises many difficult questions, including teenagers' access to sexual health advice and contraception without their parents' knowledge, and their right to make decisions about their treatment when they are gravely, and perhaps terminally, ill.
In between lie less dramatic situations: dental care and treatment, counselling and mental health treatment, and treatment for sports injuries, for instance.
These issues can pose difficult questions for healthcare providers, and one of the proposals in the Law Reform Commission report is that practitioners can rely on a good faith defence to civil proceedings where they provide healthcare to a young person under 18 when they exercise due diligence.
At the heart of the report is the doctor-patient relationship, where there has been a shift away from a paternalistic approach towards the view patients must be engaged in informed decision-making about their care. It is combined with an analysis of recent thinking on the development of children and young adults, noting individuals mature gradually.
The report refers to the context of children’s rights being under current examination, with a constitutional amendment planned for the near future. It refers to an earlier commission report, on Legal Aspects of Family Relationships, which emphasised the views of the child and importance of the responsibilities of those with parental responsibility for a child.
The report on medical treatment acknowledges parents are generally well-placed to safeguard children’s health and wellbeing. It states they must carry out responsibilities in a way that respects the evolving capacities of their children as they approach and reach adulthood. This involves a gradual approach to taking their views into account, culminating in the proposal to permit young people over 16 to consent to or refuse medical treatment and have their confidentiality respected.
This is likely to be a controversial proposal, particularly over contraceptive advice. Already Catholic think tank the Iona Institute has commissioned a poll on the issue – though it posed the question of access to contraception for under-15s – as part of its opposition to such a move.
In the UK, a majority in the House of Lords held the crucial issue in this regard was the maturity rather than age of the child, and outlined circumstances in which it would be permissible to prescribe contraceptives for under-16s without parental consent. The doctor had to be satisfied the child understood the advice, that he could not persuade her to inform her parents or allow him to do so, and that without the prescription her mental or physical health would suffer.
Under the commission’s proposals it is assumed parents are involved in health-related decisions for children under 16, and that a child is not presumed to have capacity to consent to or refuse medical treatment, unless it is established he or she has the maturity to do so. In exceptional circumstances, it will be permissible to provide healthcare to children under 16 without parental consent.