Consultation Paper on Bioethics - Law Reform Commission

competent child can consent to treatment, but if the child refuses treatment,
consent can be given by someone who has parental rights or responsibilities. 68
3.46 A number of issues were left unresolved by Re R which were at issue
before the Court of Appeal in 1992 in Re W (a minor) (medical treatment). 69 W
was sixteen years old. Therefore, the Family Law Reform Act 1969 applied in
this case, whereas it did not apply in either Gillick or Re R. Thus, the following
question had to be addressed: does a minor who has attained the age of 16, but
who is still under the age of majority have an absolute right to refuse medical
treatment, such that section 8 of the 1969 Act does not apply? 70 In Re W, the
Court of Appeal granted an application by a local authority for permission to
treat a 16 year old girl suffering from anorexia against her wishes. Balcombe LJ
observed that:
“Undoubtedly, the philosophy behind section 8 of the 1969 Act, as
well as behind the decision of the House of Lords in Gillick‟s case is
that, as children approach the age of majority, they are increasingly
able to taken their own decisions concerning their medical treatment
and an ability to refuse medical treatment…” 71
However, the court noted that although section 8 of the Family Law Reform Act
1969 explicitly referred to the right of a minor who has attained the age of 16 to
consent to treatment, it was silent as to whether a right to refuse medical
treatment existed. It accepted that a child over the age of 16, as well as a Gillick
competent child, has a right to refuse as well as consent to treatment. However,
neither section 8 of the 1969 Act nor the common law, as interpreted by Gillick‟s
case, conferred an absolute right to refuse treatment on either category of
minor. If the court‟s powers were to be meaningful:
“…there must come a point at which the court, while not disregarding
the child‟s wishes, can override them in the child‟s own best interests,
objectively considered. Clearly, such a point will have come if the
child is seeking to refuse treatment in circumstances which will in any
probability lead to the death of the child or to severe permanent
injury.” 72
3.47 Elliston has argued that it is illogical to draw a distinction between the
ability to consent to treatment and the ability to refuse treatment. Rather, “the
68 Re R (a minor) (wardship: medical treatment) [1991] 4 All ER 177 at 186.
69 [1992] 4 All ER 627.
70 Kennedy and Grubb Medical Law (3 rd ed Butterworths 2000) at 975.
71 Re W (a minor) (medical treatment) [1992] 4 All ER 627at 643 per Balcombe LJ.
72 Ibid.
85