Is childhood a disability? Using Mental Capacity Tribunals and the Deprivation of Liberty Safeguards to shield children's capacity to consent to and refuse medical treatment

Abstract

Purpose – The purpose of this paper is to demonstrate that the common and statutory law governing children's capacity or competence to consent to and to refuse medical treatment is unsatisfactory and to suggest solutions. Design/methodology/approach – Critical legal analysis of the law on assessing minors’ decision-making capacity in relation to legal recognition of their consent to and refusal of medical treatment. Findings – Without legal mechanisms which protect both children and their rights, all children and young people are effectively disabled from exercising age and capacity-related autonomy and participation in decisions affecting their lives. Yet in English law, inconsistencies between legal and clinical measures of decision-making capacity, situations where compulsory medical or mental health treatment is lawful, and tensions between rights and duties associated with human rights, autonomy, best interests and protections for the vulnerable create difficulties for clinicians, lawyers and patients. Research limitations/implications – As the paper acknowledges in its recommendations, the views of stakeholders are needed to enrich and inform legal reforms in this area. Originality/value – The paper makes suggestions to amend the law and clinical practice which are original and far reaching. The paper suggests that in order to observe children's rights while protecting them appropriately, the Mental Capacity Act 2005 and Deprivations of Liberty Safeguards should be applied to minors. The paper recommends the establishment of Mental Capacity Tribunals, similar in nature and purpose to Mental Health Tribunals, to provide legal safeguards and mechanisms to foster the supported decision-making envisaged in recent United Nations Conventions.