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15 FEBRUARY 2010

NO 1542

Children's ability to give consent

Recently in England the case of Hannah Jones, the 13 year old terminally ill teenager who has "won a battle against a hospital's attempt to force her to have a life saving heart transplant" (p. 1, The Guardian Society Section, 11. 11.2008) illustrates the complexity and importance of issues that surround the age at which children can be seen to be able to make their 'own decisions' about matters that may previously have been seen to be the province of adults. The 13 year old's decision is in line with the prevailing position in medical practice in the United Kingdom that the age at which a child can consent to treatment has been reduced from this point by a landmark Court judgement (Gillick v. West Norfolk and Wisbech AHA, 1986), with the capacity to consent being:

"..when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed" (per Lord Scarman at 188).

However, to fulfil this criteria requires that the young person has an understanding and appreciation of the relevant information, and an ability to use the information to weigh the risks and benefits of different options while making a choice (Beyth-Marom et al., 1993). Studies of decision-making ability within research contexts have shown that children age 7 to 12 have difficulty identifying and describing risks and benefits to research participation (Abramovitch et al., 1995). With increasing age, the early adolescent usually becomes able to understand the implications of information, and consider the future consequences of their decisions. In line with these findings, the long-standing legal wisdom has been that children under 12 years of age virtually never possess such capacity, and that it is rare to find the requisite capacity until the age of 14 years (Brazier, 1992). Hannah Jones's case calls this into question, indicating that children as young as 13 can sensibly and appropriately make literally life and death decisions. This article seeks to locate such decisions within a wider legal framework, and provides details of an exploratory study in relation to children, young adults and consent.

The introduction of the Mental Capacity Act 2005 sought to bring greater consistency to the issue of capacity to give consent in a wide variety of situations. However the Act specifically; excludes children, though s5 does address issues for young people over the age of 16 years. Thus the problem of how to respond to a child within a clinical setting, and how to decide the appropriate level of consent that should be sought from them remains the judgement of the clinician present. There are few formal aids to carrying out this task, however, and in practice the decision as to whether a young person has the capacity to decide about treatment is based upon whether they understand:

and can be seen to be making a voluntary choice.

These are very difficult elements for which to offer objective measures. Underlying the notion of obtaining consent from children and Gillick "competence" is the view that "pre-Gillick competent children's" responses with regard to medical choices are likely to be different from "adult" response simply because of the abilities and knowledge as they possess as "children" If this is the case then it should be open to exploration, understanding, and use in practice. To explore the potential for this, we sought to investigate whether a questionnaire evaluation of ability to define medical terms and make judgments upon alternative choices would be able to distinguish a style of "child-like" responses from those of adults.

MAURICE PLACE AND RICHARD BARKER

Place, M. and Barker, R. (2009). Assessing children's ability to give consent. International Journal of Child and Family Welfare, 12, 2-3. pp. 87-88.

REFERENCES

Abramovitch, R.; Freedman, J.L.; Henry, K. and Van Brunschot. (1995). Children's Capacity to Agree to Psychological Research: Knowledge of Risks and Benefits and Voluntariness. Ethics and Behavior, 5. pp. 25-29.

Beyth-Marom, R.; Austin, L.; Fischoff, B.; Palmgren, C. and Jacobs,K M. (1993). Perceived consequences of risky behaviors. Developmental Psychology, 29. pp. 549-563.

Brazier, M. (1992). Medicine, Patients and the Law. 2nd ed. London Penguin Books. p. 341.

Gillick v. West Norfolk and Wisbech, AHA. (1986).G. House of Lords, AC 112.

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