Some Implications of the Human Rights Act 1998 for the Medical Treatment of Children

Although the Gillick decision was hailed as an important step in the furtherance of respect for children's autonomy, subsequent judgments seemed to undermine this important principle. While it would be difficult to criticise the outcomes of some of the key cases, the reasoning by which these were achieved is rather more contentious. There have been some interesting discussions suggesting more constructive approaches but there is still a great deal of anecdotal evidence indicating that conservative assessments of children's ability to be involved in decisions about their medical treatment remain the norm. The new Department of Health consent forms should help to create a climate where assessment of a child's competence will become more sophisticated. This paper will argue that the Human Rights Act 1998 offers another opportunity to reassess more traditional approaches to children's capacity; indeed, this could be put more strongly: if we fail to assess children's competence properly, there could be violations, inter alia, of the right not to be subject to inhuman and degrading treatment under Article 3 in extreme circumstances and the right to private and family life enshrined in Article 8. Clearly, it is not always practicable to carry out assessments rigorously and some health professionals may feel they do not have the expertise to do this, but some basic criteria could assist here; courts are not likely to expect more than a demonstration that best endeavours have been employed in reasoned decision-making. Additionally, other privacy rights may have implications for the medical decision-making process as it affects children and their carers particularly where conflict arises. Disputes may also ensue from the right to manifest religion and other beliefs”,’ under the Act. This paper will explore how such challenges to those responsible for the medical treatment of children may fare.