Law Reform Commission of Ireland Report on Children and Medical Treatment

The Law Reform Commission of Ireland released its report on Children and the Law: Medical Treatment in the last week of July.

Among the recommendations in the Report are:

1. 16 and 17 year olds: the Commission recommends that 16 and 17 year olds should be presumed to have full capacity (based on a functional test that they understand the health care decision and its consequences) to consent to, and refuse, health care and medical treatment. This includes: advice, over-the-counter medicine, surgery, access to contraception and mental health services.
   
2. Those under 16: the Commission recommends that those under 16 should not be presumed competent to consent to, or refuse, medical treatment; but that, in exceptional circumstances they may be able to give their consent or refusal, based on an assessment of their maturity, and a presumption that their parents or guardians will usually be involved.
3. The assessment of whether a person under 16 is sufficiently mature to consent to or refuse medical treatment would have to take account of the following factors: (a) whether he or she has sufficient maturity to understand the information relevant to making the specific decision and to appreciate its potential consequences; (b) whether his or her views are stable and reflect his or her values and beliefs; (c) the nature, purpose and utility of the treatment; (d) the risks and benefits involved in the treatment; and (e) any other specific welfare, protection or public health considerations.
4. Where any person under 18 refuses life-sustaining treatment, an application to the High Court would be required to decide on the validity of any such refusal.
5. The Commission recommends that the Mental Health Act 2001 be amended to make specific provision for people under 18: for example, that a Mental Heath Tribunal (with an age appropriate focus) rather than the District Court should review their admission and treatment.

The report also takes a comparative approach, examining other countries concerning consent to, and refusal of, health care treatment by persons under 18. The relevant legal developments in England and Wales, Northern Ireland, Scotland, Canada, Australia and New Zealand were taken into account.