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Cross-Posting: Should We Recognize a Child’s Right To Refuse Vital Medical Care?

By: Luke Gilman | Other Posts by
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The post below is cross-posted from my original post Should We Recognize a Child’s Right To Refuse Vital Medical Care? on the Children and the Law Blog.

CBS News: Girl Wins Right To Refuse Vital Transplant

Hannah Jones, 13, is not afraid of dying – she is afraid of spending her remaining days in a hospital bed. In a case that raises a host of medical and ethical issues, the British teenager from a small town northwest of London has won a battle to refuse a heart transplant operation. That decision by British medical authorities has ignited a debate over whether children should have the right to refuse potentially lifesaving medical treatments or if health authorities have an obligation to intervene.

That heartbreaking story illustrates the difficult issues that surround the law’s treatment of children as individuals with a right to determine their future. When Hannah and her parents decided against the procedure the medical authorities threatened to take them to court to force her to have it.

Doctors are required to obtain informed consent before treating a patient because individuals are thought to have the right to control what is done to their bodies. This includes the right to control the course of medical treatment and even to refuse it altogether. As long as a person is competent, they have a constitutionally-protected liberty interest in refusing unwanted medical treatment, balanced against the state’s interests in protecting and preserving human life. Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990). A competent person has a right to refuse treatment even if the refusal ends in the individual’s death.

In general children are thought to lack the capacity to make life-altering decisions on their own. They may not fully understand the consequences or risks of their decision or the nature of their circumstances. The law defers to the judgment of parents or guardians in such situations.

While the Court has found that just like adults, a child also has a substantial liberty interest in not being confined unnecessarily for medical treatment, Parham v. J.R., 442 U.S. 584 (1979), the Court later noted that “In Parham… we certainly did not intimate that such a minor child, after commitment, would have a liberty interest in refusing treatment.” See Cruzan.

So where does that leave us?

In Hannah Jones’ case a social worker was sent to interview her about her refusal to have a heart transplant. After discussing it the social worker then backed Hannah’s decision, which was supported by her parents as well.

According to the Department of Health, when a child is considered competent and refuses treatment, their decision will be respected. When a consensus can’t be reached, the patient can be overruled by either parents or guardians, or in more unusual circumstances, by the courts.

The harder questions are of course when the child and the parents disagree, or the state finds circumstances that they feel justifies overruling both parent and child, such as what effect to give religious views regarding surgery or blood transfusions. The rate at which this issue comes before the courts is only likely to increase given that advances in medical technology may often prolong painful treatment periods that a child or parents may instead choose to avoid to improve the quality rather than the longevity of life.

Further Reading:

  • Susan D. Hawkins, Protecting the rights and interests of competent minors in litigated medical treatment disputes. 64 Fordham L.R. 2075 (1996).
  • Hillary Rodham, “Children Under the Law”, 43 Harv. Edu. Rev. 487 (1973).
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