Commentary on "True Wishes"

This very interesting paper discusses the degree of autonomy that the law is prepared to allow children and young people in making decisions about their medical treatment. An irrational situation is exposed, one in which emerging case law appears contrary to the spirit of legislation, especially the Children Act 1989. This situation is discussed from the point of view of the psychology of child development and philosophical theories of rationality, identity, and autonomy.

My observation of decision making by the courts is that it is not based so much on a logical analysis of issues, using expert knowledge, as it is on a balancing of different pressures. Certainly an attempt is made to avoid anomalies that would provide ammunition for the relatively quick-fire, point-scoring type of argument that our adversarial legal system invites. It is nevertheless hardly surprising that the result tends not to satisfy psychologists or philosophers. At least, however, the courts avoid being driven back and forth by the vagaries of academic fashion.

The main criticism the article makes of the current state of the law is that although young persons (aged sixteen or seventeen) are allowed by the Family Law Reform Act 1969 to give consent to medical treatment with the same effect as if they were adults, case law does not give them the right to refuse consent. Their refusal can be overridden by someone with parental rights who consents on their behalf. It has been argued that the right to consent ought to imply the right to refuse consent. The authors also advance a more detailed argument that the absence of a right for children and young people to refuse treatment creates a difference in legal status between them and adults that cannot be justified in terms of either developmental psychology or philosophy.

However, a distinction can be made between giving and refusing consent to treatment if it is assumed, as the courts may have done, that giving consent to a course of treatment prescribed on the basis of expert medical knowledge is prima facie rational and refusal prima facie irrational. The autonomy allowed to adults (if competent in terms of the Mental Health Act) allows them to act irrationally in respect of their own treatment. Not to allow this choice would confer an unacceptable degree of power on the medical profession. In the case of an adult, there is only his or her own judgment to set against that of the medical expert. But in the case of a child there is at least one person who has parental rights, and with those rights the duty to promote the child's welfare. There can therefore be some sense in allowing such a person to override what appears to be an irrational decision by the child, contrary to his or her own welfare, while not allowing the same person to override what appears to be a rational decision that is consistent with expert medical advice.

In relation to a child's autonomy, the authors say, "There is no good reason why the attainment of any set age should magically transform young people from outsiders to insiders in a rights-oriented legal system." But this is precisely what the law does at various set ages (although for different purposes), most notably in conferring the right to vote at the age of eighteen, regardless of educational attainment, emotional maturity, or rationality.

As for why children should be granted less autonomy than adults, the authors note an important difference: the child's lack of knowledge and experience. That this can lead to poor judgment by a young person of his or her own best interests can be illustrated by a young man I knew who was remanded in custody to face criminal charges. The chief officer at the remand center had first seen him when he was brought as a babe-in-arms to visit his father in prison, and his background was steeped in criminal and prison values. He said his ambition was to become a "lifer." From his limited perspective, life-sentence prisoner was the highest status in life to which he could aspire. That...