Article 8 and Minors’ Right to Refuse Medical Treatment

For a competent, conscious, adult patient, the doctor must obtain consent to any bodily contact or else risk a legal action in the tort of battery. This is the case whether or not the patient has suffered any harm as a result of the touching, as the tort of battery, unlike negligence, is strict and requires no causal link between the breach of a duty and a harm caused.  The issue of consent is an important one and is a vital requirement when it comes to medical treatment.  However, when ‘consent rules’ are applied to children, in particular, to ‘Gillick competent’ teenagers, the law appears to be more ambiguous.  The case of Gillick v West Norfolk and Wisbech AHA[1] itself and R (on the application of Axon) v Secretary of State for Health[2] declared that, what we now call ‘Gillick competent teenagers’, have the capability to consent to treatment themselves and do not necessarily require their parents’ or the courts’ consent.  With refusals to treatment, however, it appears that children’s wishes are not considered in the same way or taken into account as much as they should be.  Cases such as Re: E (A Minor) Wardship: Medical Treatment[3] have made it clear that children do not have the collateral right to refuse treatment as they do to consent.  This puts into question the application of Article 8 of the European Convention on Human Rights (ECHR).


A brief explanation of, and introduction to Article 8 is first required.  The Human Rights Act (HRA) 1998, which came into force on 2nd October 2002, incorporates into UK law certain rights and freedoms set out in the European Convention on Human Rights.  One of these rights is that set out in Article 8; a ‘qualified’ right to respect for private and family life.  Because it is qualified, the right may not be respected in certain circumstances, depending on a necessity and proportionality test of justification set out in Article 8(2).  In other words, Article 8 is not an absolute right. The courts have generally interpreted this Article very widely and have seen it to encompass a variety of issues and complaints.  It has been engaged in relation to physical integrity Pretty v UK[4], privacy regarding medical information Campbell v MGN Ltd[5] and issues associated with the upbringing of children Mabon v Mabon and Others[6].


The issue that will be dealt with in this article, is whether the law relating to children’s consent and refusal to medical treatment engages Article 8, and whether such a right should be respected by doctors and the courts.  The first question to deal with is whether Article 8 can be engaged when dealing with issues of refusal to medical treatment.  The answer to this is a simple ‘yes’.  Because of the broad definition given to Article 8, it is easy to place matters of autonomy within the protection of the Article.  In dealing with the issues at hand, it is essential to look at court practice, case law and their reasoning to understand whether a mature minor’s Article 8 rights have been justifiably breached.


The case of Gillick v West Norfolk and Wisbech AHA[7] has established what is now known as the ‘Gillick competent’ child.  This is essentially a child under the age of 16 who has been deemed to understand all aspects of the advice given to them by their doctor relating to their medical heath, treatment and procedures.  The minor must be able to understand the purpose and nature of the treatment, its consequences and effects.  Should a child be deemed Gillick competent, they are able to consent to or refuse medical treatment, just as a competent adult would.


This idea of Gillick competence was further supported by R (on the application of Axon) v Secretary of State for Health[8].  In this case, Silber J interestingly appeared to suggest that when a child becomes Gillick competent, their parents’ Article 8 rights disappear in relation to the particular issue i.e. parents’ Article 8 rights do not survive their children’s maturity[9].  He went on to state that ‘any right to family life on the part of a parent dwindles as their child gets older and is able to understand the consequence of different choices and then to make decisions relating to them.  As a matter of principle, it is difficult to see why a parent should still retain an Article 8 right to parental authority relating to a medical decision where the young person concerned understands the advice provided by the medical professional and its implications.’[10]


Cases following Gillick and Axon demonstrated that Gillick competent children are able to consent to medical treatment[11].  However, the UK Courts have yet to allow a minor to refuse life-threatening treatment.  The reason for this is, perhaps, that when it comes to refusal of such treatment, no child has been deemed to be Gillick competent.  Emily Jackson’s reasoning for this is that ‘it seems that the test for capacity when the child wishes to make a life and death decision is set so high that no child could ever be deemed sufficiently competent.’[12]


Re: E (A Minor) is an excellent example of the unfair level of understanding courts require from minors in order to deem them Gillick competent, inevitably leading to the rejection of their refusal to treatment.  This is a case where a Jehovah’s Witness boy aged 15, almost 16, was refusing a blood transfusion, and so risking his life based on religious reasons.  The judge on this occasion held that the boy did ‘not have any sufficient comprehension of the pain he has yet to suffer, of the fear that he will be undergoing, of the distress not only occasioned by that fear but also – and importantly – the distress he will inevitably suffer as he, a loving son, helplessly watches his parents’ and his family’s distress…I find that he has no realization of the full implications which lie before him as to the process of dying. He may have some concept of the fact that he will die, but as to the manner of his death and to the extent of his and his family’s suffering I find he has not the ability to turn his mind to it nor the will to do so.’


It seems that the required level of understanding regarding death is too high, and perhaps even unattainable by most adults, let alone any minor.  In this particular case, the boy’s persistent refusal to blood transfusions were overridden by the courts until he turned 18, when the doctors and courts had no choice but to respect his decision and allow him to die.  It is therefore questionable whether the boy, at 15, really did lack an understanding of what death would be like i.e. whether he was Gillick competent.  Either that, or at the age of 18, he still lacked the required understanding, but stuck by his beliefs nevertheless.


The point is that the test applied by the courts has caused injustice to children such as the boy in Re: E (A Minor).  The courts have infringed the children’s Article 8 right in relation to their autonomy.  In making such accusations, establishing whether this has been a justified breach in relation to Article 8(2) is essential.  Article 8(2) states that:


“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”


The question is, under which of the above justified categories does the breach of a child’s autonomy in a medical situation come under?  It might be arguable that the infringement of a Gillick competent child’s right under Article 8(1) is justified as being necessary to safeguard his life, as long as it is proportionate to the risks involved in the patient not receiving the treatment[13].’  Another possibility is that the child also has an Article 2 right to life, which the State has a positive duty to protect.


However, it seems that ‘all too often…children’s rights disappear under a welter of experts’ assertions regarding various specialised aspects of their future care.’[14]  Jane Fortin thinks the problem lies with the courts assuming a conflict between children’s welfare and their rights.  In her opinion, the two cannot conflict as it is in the child’s best interest to have their rights respected.[15]  MacCormick, on the other hand, points out that:

“…Children are not always or even usually the best judges of what is good for them, so much so that even the rights that are most important to their long-term well-being…they regularly perceive as being the reverse of rights or advantages…[16]”.


This is perhaps the reason for the courts’ repeated infringement of children’s Article 8 rights.  What MacCormick is arguing for is the position of unfairly ridding competent children from their autonomous rights.


In the case of Re: Roddy[17], regarding the rights of a 17 year-old teenage mother to share her story with the media, the courts balanced her Article 8 right along with the media’s Article 10 rights against her ex-boyfriends Article 8 rights.  In doing so, Munby J did not dilute the teenage mother’s Convention rights due to her age.  Instead, the court declared her Gillick competent and accorded her full Convention rights, and in particular, Article 8 rights.  It follows from this that what the courts are suggesting is that mature, Gillick competent teenagers have complete autonomy, just like adults.  It also follows that they should have complete autonomous rights when it comes to consenting or refusing medical treatments.  The court’s paternal control over these competent children should therefore be abolished.  Consequently, it would not be possible to argue that the breach of Article 8(1) is justified by necessity to safeguard life of Article 8(2).


There appears to be no denial of the above point.  The foundational problem still lies in that no child has been deemed Gillick competent when it comes to the refusal of life saving treatment.  Should the courts declare a child Gillick competent in such a situation, I have no doubt that the child will be accorded full Article 8 rights and respect to autonomy.  Yet, whether this will happen is doubtful leading to the potential continuous breach of children’s ECHR rights.  One must, on one hand, be sympathetic with the courts, because if they had allowed the boy in Re E to die at the age of 15, it would never be known whether he would have changed his mind.  Such an unknown may have played on the conscience of the courts and the public and perhaps even caused outrage.  This, however, is a price that the courts and the law are prepared to pay to protect autonomy when it comes to competent adults; they too may change their minds, yet the courts respect their refusals to treatment.  Should the same not be done with Gillick competent children?  Moreover, whether this fear of outrage is enough to justify the deprival of basic human rights (Article 8 rights), and an essential element and foundation of what makes man (autonomy), is highly questionable and unacceptable.


By Miray Gorgy 

King’s College London

[1] [1984] QB 581

[2] [2006] EWCH 37

[3] [1993] 1 FLR 386

[4] [2002] 2 FCR 97

[5] [2006] EWHC 1668

[6] [2005] EWCA Civ 634

[7] [1984] QB 581

[8] [2006] EWCH 37

[9] Emily Jackson; Medical Law Text, Cases and Materials; 2nd Edition; Oxford University Press page 266

[10] [2006] EWCH 37 at 129-130

[11] For example Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 CA, where the Court of Appeal made it clear that a Gillick competent adolescent had the ability to consent to treatment, though should the adolescent refuse the treatment, consent can be given by someone else who had parental responsibility over the child, or the Court.

[12] Jackson page 268

[13] Jane Fortin; Accommodating Children’s Rights in a Post Human Rights Act Era; The Modern Law Review May 2006 Volume 69; page 316

[14] Fortin page 303

[15] Fortin page 311

[16] Fortin page 318

[17] Re Roddy (a child) (identification: restrictions on publication) [2003] EWHC 2927 (Fam) [2004] 2FLR 949

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