Medical treatment of minors
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Medical treatment of minors

What is parental consent? Pa­rental consent is needed in medical decisions for minors under the age of 18 years because minors are legally incompetent to consent or refuse treatment for themselves.

Is it right that minors should be denied the faculty of consenting to or refusing treatment? What does case law say about this fact? What is the view abroad on this theme?

In Malta, the situation is rather ambiguous because parental consent is not always required. For medical treatment, from going to a dental appointment to undergoing surgery to seeking drug rehabilitation treatment, parental consent is generally required. The only instance when parental consent is not required is when a minor seeks treatment at the genito-urinary clinic.

Is parental consent being done away with? Is it really necessary to seek parental consent in medical decisions?

One should not look at it as doing away with parental consent but as giving the faculty to competent minors to consent to or refuse treatment for themselves. Is this a contradiction? How can parental consent be required and, at the same time, give minors the faculty to consent to or refuse treatment?

The answer is no because parental consent would still be needed for most situations. It would not be needed only in those cases where the minors would be deemed to be competent to consent to or refuse treatment for themselves. How can competency be determined?

In England there is the notion of “Gillick competency”. This is where minors, who have sufficient understanding and maturity, are deemed to be competent to consent to treatment and such consent suffices – that is, there is no need for parental consent. Gillick competency has emerged from the landmark English case Gillick vs. Wisbech Health Authority where the majority of the House of Lords decided that if a minor has sufficient understanding and maturity, then such minor’s consent is enough, without the need for parental consent.

But, how is competency assessed? Lord Fraser came up with a set of guidelines, which was later modified and moulded into the Gillick test to apply to medical decisions.

A child is Gillick competent if a doctor is of the view the procedure can be said to be in a child’s best interests and if that doctor cannot persuade the child to tell his/her parents and provided the child is able to understand the nature and consequences of the medical procedure. Therefore, the medical practitioner should encourage the minor to inform his/her parents but if such minor does not wish to inform his/her parents, such medical practitioner should abide by the minor’s decision and if the minor is deemed to be competent then the medical practitioner is able to administer treatment. Is this practice correct?

Legally speaking, a minor is any person under the age of 18 and it does not seem to make sense to withhold medical treatment for a mature minor if such minor simply does not want to inform his/her parents. Sometimes, minors would not want to inform their parents for various innocuous reasons, for example, not to worry them. Other instances would be when the parents themselves would have sent the child to the dentist or to see a doctor on his/her own, especially when the complaint is of a trivial nature such as headaches or stomach aches.

There are instances when parents send their minors for medical check-ups on their own or when older minors feel they are old enough to go for a check-up on their own. For example, if a minor has a sports-related injury and such injury requires regular check-ups, should that minor be denied treatment or access to such check-ups simply because his/her parents are too busy to go with him/her or just because the parents themselves believe their 16-year-old son/daughter is mature enough to go to the doctor by her/himself.

If mature minors are given the legal faculty to consent to treatment then a lot of legal work would be saved. In the prevailing situation, if a minor wishes to consent to treatment, legally speaking s/he is incompetent to do so, irrelevant of whether s/he is in fact mature or has enough understanding. Such treatment is only administered if the minor’s parents consent and if they do not and the medical practitioners believe it is in the minor’s best interests to receive such treatment then they would have to apply to the court for a treatment order to be issued. All this would be easily done away with if a mature minor is enabled to consent.

If mature minors are given the legal competence to consent to treatment, it does not mean parental consent becomes superfluous. Instead, parental responsibility, as Lord Scarman stated, yields to the mature minor’s competency to decide for him/herself.

annmarie.mangion@gmail.com

Dr Mangion is a lawyer and a published author with a special interest in family and child law.

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