Consultation Paper on Bioethics - Law Reform Commission

treatment it shall not be necessary to obtain any consent for it from
his or her parent or guardian.”
3.38 The interpretation of section 23(1) is problematic. Donnelly has
identified a number of problems: first, section 23(1) is unclear with regard to the
legal standing of a refusal of treatment by an individual aged over 16 years, but
under 18 years of age; second, there is no reference to refusal of treatment and
it is unclear whether this is implied; 59 third, section 23(1) does not specifically
prohibit individuals under 16 years of age from giving a legal consent to
treatment. McMahon and Binchy argue that if section 23(1) were viewed in
isolation, the inclusio unius est exclusio alterius rule of construction might
denote a legislative intent that 16 should be the minimum age for a lawful
consent by a minor. 60 However, section 23(3) states:
“Nothing in this section shall be construed as making ineffective any
consent which would have been effective if this section had not been
enacted.”
3.39 Therefore, McMahon and Binchy submit that that it appears that the
Oireachtas decided to leave open the question whether a minor under 16 has
the capacity in any circumstances to consent, without reference to the minor‟s
parents or guardians. In any event, clarity is required. As Donnelly notes:
“While each doctor‟s decision will depend on his view of the
circumstances at hand, he is hampered in reaching this decision by
the absence of clarity in relation to the legal framework that binds
him.” 61
(c) The ‘mature minor’: capacity of children under 16 to consent to
treatment
3.40 In England and Wales, an almost identical provision to section 23 of
the 1997 Act applies. Section 8 of the Family Law Reform Act 1969 provides
that:
“The consent of a minor who has attained the age of sixteen years to
any surgical, medical or dental treatment, which in the absence of
consent, would constitute a trespass to his person, shall be as
59 Donnelly Consent: Bridging the Gap between Doctor and Patient (Cork University
Press 2002) at 48.
60 Mc Mahon and Binchy Law of Torts (3 rd ed Butterworths 2000) at paragraph
22.81.
61 Donnelly Consent: Bridging the Gap between Doctor and Patient (Cork University
Press 2002) at 50.
82