Human Rights in Ireland is delighted to welcome this guest post from Bríd Nic Suibhne, Law Reform Commission. This post is published in Bríd’s personal capacity and may not necessarily reflect the views of the Law Reform Commission.
The Convention on the Rights of the Child 1989 is a broad and inclusive statement of rights, granting considerable weight to rights of protection and participation, representing a pair of principles of equal import. The coupling of protection and participation rights can however lead to an uneasy relationship which comes sharply into focus in the context of healthcare decision making.
The interpretation of the broad spectrum of rights and protections granted by the Convention is guided by Article 3(1):
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
This best interests principle has gained broad acceptance, is used in various other international instruments, and features prominently in debates and discourse on children’s rights. On the surface the principle of best interests seems relatively self explanatory. This apparent simplicity is, however, in direct contrast with the myriad of meanings attributed to it, as different commentators attempt to define what the interests of children are and what best serves these interests in different situations. Decisions on what course of action is in a child’s best interests can be indeterminate, speculative, individualised and paternalistic.
Looking at the treatment of the child patient in the healthcare setting in Ireland reveals apt and considerable emphasis placed on protecting the child and acting in his or her best interests. This emphasis is combined however with a failure to recognise the participation rights of the child.
Irish law, encompassing constitutional, statute and case law, contains few references to children’s rights to healthcare. There is limited statutory guidance and case law in Ireland on the voice of the child in the healthcare setting, and the capacity of a person under 18 years of age to make a healthcare decision. The sole reference to the legal capacity of a child to consent to medical treatment is housed in a piece of criminal legislation, namely section 23 of the Non Fatal Offences Against the Person Act 1997 which provides that consent given by a minor who has reached the age of 16 years to treatment which would otherwise constitute a trespass, may operate as an effective consent. This provision provides a medical practitioner with a defence to a charge of assault and was clearly not enacted to deal with wider issues of capacity, autonomy and self-determination. Legislatively speaking, children have no automatic right to participate in the process of healthcare decision making but those aged 16 have the authority to consent to medical, surgical and dental treatment. The mature minor rule developed in England, Scotland, Canada, Australia and New Zealand over the past 20 years has yet to be engaged in any meaningful way in Ireland.
There is no statutory guidance on the treatment of children and young people in hospital, and no duty placed on health care professionals to listen to the views of the young patient, regardless of the patient’s age or maturity. Furthermore, the separate issues of information provision, assent to treatment and consent to treatment are lumped together. Children may not have the capacity to consent to medical treatment however they have a right to be informed and express their views.
The failure to respect the voice of the child represents a failure to adhere to the Convention on the Rights of the Child. The Convention grants considerable weight to children’s rights of participation, primarily through Article 12 which draws attention to the daily life of children and the decisions which affect them:
State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all manners affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
Article 12 is particularly relevant in the health care setting where increased participation and understanding by patients is closely associated with positive treatment results. Children who receive information regarding their health and treatment gain a sense of understanding and control, which can reduce anxiety. The implications of Article 12 are that children have the right to be listened to by healthcare professionals during consultation, investigation and treatment, even where the law does not require their legal consent.
The Ombudsman for Children, Emily Logan, has proclaimed the importance of the child’s voice in the healthcare setting, highlighting that in the context of healthcare, children do not go through the same transitions at the same time. Children who suffer from an illness or a disability are sometimes viewed differently by their peers, and in some respects they are different. From a young age, they adapt to a routine of appointments, hospitals, medicine and treatments and become adept at dealing with the health problems and constraints they face on a daily basis. Such personal experience adds greatly to the evolving capacities of a child and must be taken into account when treating children and managing their healthcare.
It is not easy for children to participate in a healthcare system which is traditionally paternalistic. The failure to respect the voice and evolving capacity of a child or young person in a medical context results in the creation and maintenance of barriers to necessary information and treatment, particularly in relation to sensitive issues of sexual and mental health. This was criticised by the Committee on the Rights of the Child in its evaluation of Ireland’s implementation of the Convention in 2006. The Committee noted that the minimum legal age for consulting a doctor without parental consent was 16 years, and questioned where children and young people below the age of 16, who had sexual or drugs-related problems could go to talk to a doctor or a psychologist without informing their parents. The question seems to have been avoided, as the Irish delegation could not give a satisfactory answer. There are no answers to be found in the healthcare system as it stands to deal with questions and issues presented by, for example, the sexually active 16 year old who requests contraception, the 17 year old who purports to refuse a blood transfusion, the 13 year old who has been managing a chronic illness for years, or the 15 year old mother who can consent to medical treatment on behalf of her child but does not have the legal capacity to make decisions regarding her own healthcare.
The effort to create a sense of symbiosis between rights of protection and participation under the Convention is undermined by the lack of respect for Article 12 in the Irish healthcare system. The General Comment on the Right of the Child to Be Heard issued by the Committee on the Rights of the Child in 2009 referred to the complementary interaction between Articles 3 and 12 of the Convention. Article 3 establishes the objective of achieving the best interests of the child and Article 12 provides the methodology for hearing the child. There can be no correct application of Article 3 if the components of Article 12 are not respected. Article 3 in turn reinforces the functionality of Article 12, facilitating the essential role of children in all decisions which affect them. Particularly relevant to the present discussion of the child’s voice in the healthcare setting, was the statement included in the General Comment that Article 12 must be allocated a place of respect and deference within the medical arena:
The realisation of the provisions of the Convention requires respect for the child’s right to express his or her views and to participate in promoting the healthy development and well-being of children. This applies to individual health-care decisions, as well as to children’s involvement in the development of health policy and services.
In 2006, the Committee on the Rights of the Child urged Ireland to strengthen its efforts to ensure that children have the right to express their views in all matters effecting them and to have their views given due weight, in particular in families, educational institutions, the health sector and in communities.
It is evident that reform is necessary to ensure that the voice of the young patient is heard in the healthcare setting, to enable children and young people to grow and mature, reaching a point where the individual who has capacity can participate in and make decisions about his or her own healthcare and treatment.
 The infamous decision of the House of Lords in the 1985 Gillick case is considered to be a fulcrum in the development of the mature minor rule. In short, the rule allows a minor to consent to medical treatment, if he or she is capable of understanding the nature and consequences of the decision in question. http://www.bailii.org/uk/cases/UKHL/1985/7.html See also Freeman “Rethinking Gillick” (2005) 13 International Journal of Children’s Rights 201-217.