The Need To Make Reference To The Legal Age Of Capacity In The UK

Submitted By Adele021
Words: 1064
Pages: 5

Dissertation Outline Firstly, there is the need to make clear reference to the legal age of capacity in the UK (The Family Law Reform Act 1969) with particular emphasis on the slightly different stance taken in Scots law (The Age of Legal Capacity (Scotland) Act 1991, s.50). Draw attention to the fact the right to consent to medical treatment for children under the age of 16 vested in the parents/legal guardians prior the ruling of the Gillick case. Requirement to point out as children grow and mature with that so must their rights and responsibilities which is all embodied within the question being asked.

Introduce the reality of the situation witnessed by the landmark "Gillick" (Gillick vs. West Norfolk and Wisbech Health Authority) decision, which presumed those under the age of legal capacity were capable of giving consent with regards to medical treatment if deemed competent by the courts. The point of strong debate whether or not consent means right of refusal to medical treatment by children should follow-suit should be introduced. Therefore, the unfairness of the current situation whereby on one hand a competent child may give consent whilst there exists provision for any refusal from the same child to be easily overturned. Firstly by the child's parents and if necessary by the courts if thought to be in the best interests of the child. The above would be supported by case law and an attempt to paint the picture whereby competent children's autonomous rights were being quashed through subsequent court judgments with particular emphasis upon findings south of the border. A strong feeling of support for the same route not to be taken by the Scots courts when the situation arises would be laid down firmly. In short, Compare the current situation in the English courts to what the path the Scots courts will eventually pursue (limited number of cases to date)* through the numerous cases available down south. Scots cases to date, Houston (Applicant) 1996 SCLR 943, which is of real interest as it were a situation involving a children's refusal to medical treatment and furthermore it represents the first steps the Scots courts have taken. Discussion over the reasons behind such a ruling and what significance this brings to the table regarding the progress the law has made regarding this area and to the children it protects.

Go into depth how in many situations human rights have been breached time and time again with blatant disregard for the best interests of the child. The need to highlight the fact that the European Convention which set up the frameworks which protects us today such as Human Rights, although half a Century old, is a living instrument therefore it recognises it must change to adapt with the changing needs of society thus so must the law from a domestic basis. Cases which should be noted amongst others are Axon Case, Re E (a minor) and Re R (a minor) & Re Roddy (a child)etc.
Here, the way in which the views of children, who appeared fully able to comprehend the nature and consequence of their own decisions, were pushed to one side in favour of the best interest policy. Introduce the scenario and developments witnessed in the Glass v United kingdom 2004 case whereby resuscitation went ahead against 15 year old child's wishes. The implications of such an action against an individuals rights of autonomy, self guidance and best interests. Perhaps, at times such actions went against religious beliefs or even ethical boundaries which shows more needs to be done to clear up the situation regarding children's medical treatment and their surrounding rights.

Link back to earlier where although to date there are but one or two cases to have entered the Scottish courts regarding children's rights to consent/refuse medical treatment however some headway has been made in the right direction in form of statue and if I might add for the good of children's rights & well-being as a whole.