Commentary on "True Wishes"

Dickenson and Jones are concerned not only with the philosophical basis of recent court decisions dealing with children's autonomy and medical treatment but also with their possible influence on clinical practice. The problematic decisions they discuss are those that seem to deny children the right to refuse medical treatment (and possibly other bodily invasions) when it is thought to be in their best interests (re W, re R, South Glamorgan County Council v. W and B). This leads Dickenson and Jones into an analysis of the theoretical basis for dissociating children's expressed wishes from an evaluation of their best interests.

As the authors demonstrate, these problematic medical decisions run counter to the thrust of contemporary legal and political developments in intergenerational relations. The Gillick case (1986) established the right of a child to give effective consent to medical treatment (and other bodily invasions) without parental consent, whatever its age, provided it was sufficiently competent (a state often known as "Gillick competence"). The Children Act 1989 confirmed this in specific contexts, and referred to a child's wishes as the first in a list of considerations to be taken into account by a court deciding on a question concerning a child's upbringing, and gave children more opportunities to take such disputes to the courts (Eekelaar 1994). The United Nations Convention on the Rights of the Child showed that these developments were occurring within a worldwide context of increasing sensitivity to children's rights, although the concept of children's rights is, of course, highly complex and significantly culturally determined (Alston, Parker, and Seymour 1992; Alston 1994).

It is true that the rhetoric of rights is falling out of fashion in favor of an apparently more "concerned" discourse of community and obligation, both in the United Kingdom (recall the speeches of Tony Blair M.P.) and the United States (Glendon 1991; Regan 1993). This change was foreshadowed in the language of the Children Act itself, which referred to parental "responsibility" rather than parents' "rights." However, the problematic cases Dickenson and Jones discuss cannot be explained as simply reflecting a resurgence of antirightist communitarianism. To understand why, we must distinguish between the decisions handed down in those cases and the separate judicial doctrine that keeps intact the paternalism of the courts' inherent jurisdiction.

It is important to remember that these problematic cases determined that doctors could, with the parents' approval, impose invasive treatment on an unwilling young person under the age of eighteen, whatever his or her mental competence, without having to seek approval from a court. In other words, the decisions were about medical power. They were expressly justified on the ground that it was necessary to give legal protection to doctors against the possibility that a young person might sue the doctor for mistakenly judging him not to be "Gillick competent," when in fact he was. Provided the doctor had the cooperation of the parents, the doctor would not have to take the risk of making a mistaken assessment of a child's competence.

I have argued elsewhere (Eekelaar 1993) that a doctor is perfectly well protected against such risks by the law of negligence, and it was quite unnecessary to reinforce this by propounding a doctrine under which Lord Donaldson admitted that "as a matter of law" it would be possible for doctors and parents to force an abortion on a seventeen-year-old girl. One is hardly mollified by his observation that doctors would never do this, especially as Donaldson added "unless the abortion was truly in the child's interests." The law is clearly unconcerned about how a doctor determines a child's competence if the parents are in agreement with him, because the law says that that issue is irrelevant—hardly a position designed to encourage the reflection that Dickenson and Jones rightly argue is important to clinical practice.

Quite apart from advancing the above position, the courts have also reasserted their power to use their inherent jurisdiction to authorize treatment or restraints upon a young person under the age of eighteen whether or not the young person, or his or her parent or parents...