People aged 16 and 17 years are in a very confusing legal category. They do not enjoy the full rights of giving and withholding consent to treatment that an adult who is mentally capacitated enjoys. On the other hand, they have a statutory right, under the Family Law Reform Act 1969, to give consent that those under 16 years do not have.
It might be assumed that, if there is a right to give consent, there is also a right to withhold consent. This is not so. In the case of a girl aged 16 with anorexia nervosa, the Court of Appeal held that her refusal of treatment could be overruled in her best interests.
This ambiguous situation, where 16 and 17-year-olds can give consent but not necessarily refuse it, may be coming to an end.
Parliament has decided in the Mental Health Act 2007 that it should not be possible for parents to overrule the refusal of a 16 or 17-year-old to be admitted to hospital for mental disorder.
This is probably the right direction. To treat a young person who is mentally capacitated against their wishes would probably constitute inhuman or degrading treatment or punishment and would be contrary to Article 3 of the European Convention on Human Rights. Under Article 14, discrimination on account of age would be unlawful.
In the situation here, the boy can consent, but cannot, at present, refuse treatment if it is in his best interests. The parents can give consent on his behalf up to age 18 but cannot refuse treatment if it is in his best interests.
What is the prognosis? If the alternative treatment is unlikely to be successful in the long run and clinicians are clutching at straws, the refusal of the boy and the parents should be accepted.
If the new treatment is in the boy’s best interests and has a good chance of success, the clinicians could seek a declaration under the Children Act 1989 that it should proceed.
Once the boy is aged 18 and has the requisite mental capacity, he can refuse any treatment.
Bridgit Dimond, MA. LLB, DSA, AHSA, is barrister-law and emeritus professor, University of Glamorgan, Pontypridd
'Want to read more of Dilemma? Just click on the 'more by this author' link at the top of the page