title: Minors' capacity to refuse treatment: a reply to Gilmore and Herring.
abstract: Re R and Re W allow a parent to consent to treatment a competent minor refuses, but the cases have not been tested post-Human Rights Act 1998. Gilmore and Herring offer a means by which they might be distinguished or sidelined. They interpret Gillick to say that in order to consent a minor need only have a full understanding of the particular treatment. They argue that the minors in Re R and Re W were refusing all treatment which requires a separate assessment of capacity-an assessment which was not made. We fear that this distinction would not be workable in clinical practice and argue that their interpretation of Gillick is flawed. From a clinician's point of view, competence cannot always be judged in relation to a specific treatment, but instead must relate to the decision. We show that a decision can incorporate more than one treatment, and more than one decision might be made about one treatment. A minor's understanding of a specific treatment is not always sufficient to demonstrate competence to make a decision. The result is that whilst there might be situations when a parent and a minor both have the power to consent to a particular treatment, they will not share concurrent powers in relation to the same decision. Consequently, a challenge to Re R and Re W, if forthcoming, would need to take a different form. We emphasise the necessity to minimise the dichotomy between legal consent and how consent works in medical practice.
authors.affiliation: Liberty Building, School of Law, University of Leeds, Leeds LS29JT, UK. e.g.g.cave@leeds.ac.uk
authors.forename: Emma
authors.initials: E
authors.lastname: Cave
authors.forename: Julie
authors.initials: J
authors.lastname: Wallbank
mesh_terms: D000293:Adolescent; D032882:Comprehension; D004739:England; D006801:Humans; D033242:Minors / Q000331:legislation & jurisprudence*; D016312:Treatment Refusal / Q000331:legislation & jurisprudence*