What is it about?
The difference between refusing a treatment and refusing all treatment and the effect this has on the justifications for the 'treatment refusals cases' Re R and Re W.
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Why is it important?
The understanding required in order to be competent to consent to treatment will not always be the same as the understanding required to be considered competent to refuse it. Gillick requires the minor to fully understand the implications of her decision, which might involve more than one treatment. Equally, there might be more than one decision about the same treatment. This leads us to conclude that the distinction between consenting to or declining a particular treatment and refusing all treatment is unhelpful. Whilst it might explain aspects of Re R and Re W and enable them to be sidelined, we argue that adoption of Gilmore and Herring’s interpretation of Gillick would make for an unworkable test for competence from the perspective of clinicians.
Perspectives
This paper marked an interesting debate between the authors and two brilliant and influential scholars, Professors Gilmore and Herring. It concerned their paper: S Gilmore, J Herring, ’No’ is the Hardest Word: Consent and Children’s Autonomy (2011) 23 Child and Family Law Quarterly 3. We agreed with much of their paper but diverged on the practical implications which would have implications for the proposed solution to two cases that are considered by many as a doctrinal anomaly: Re R and Re W. Professors Gilmore and Herring reply in 'Children's Refusal of Treatment: The Debate Continues' (2012) Family Law 973 and the debate is outlined in Goold and Herring, 'Great Debates in Law: Medical Law and Ethics' Palgrave 2014, pp 40-45.
Professor Emma Cave
Durham University
Read the Original
This page is a summary of: MINORS' CAPACITY TO REFUSE TREATMENT: A REPLY TO GILMORE AND HERRING, Medical Law Review, April 2012, Oxford University Press (OUP),
DOI: 10.1093/medlaw/fws003.
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