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Family Law

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Court of Protection Practice and Procedure Conference 2016

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25 MAY 2010

Penny Booth: "A very complex area"

"A very complex area"

Penny BoothLast week there was a very sad story of loss in the papers, which raises again the issue of minors and consent and this whole rather delicate area of who can give consent in medical treatment where children are concerned. Joshua McCauley was only 15 when he was hit by a car in a traffic accident on 18 May 2010. The car is reported to have crashed into a shop and Joshua was crushed beneath it, sustaining terrible injuries only survivable if invasive treatment worked. Taken to hospital, the boy reportedly refused a blood transfusion and died the same day.

As a parent you never want your children to get hurt, and if they are, you (naturally) want the best treatment for them and you hope that you never have to make life and death decisions; as lawyers you want the best decision which is in the best interests of the child, and hopefully ‘just'. Some interesting issues are raised by the most recent example of minor's consent, not the least of which is whether Joshua would have survived had he been given a blood transfusion, and should he have been the one to decide, anyway?

The hospital did not approach the court for guidance on the decision and Joshua's decision not to accept treatment was the one that counted. That may be surprising, but the statements from the hospital tell us clearly that they agreed with this minor's ability to make the decision and the blood transfusion that might have saved his life did not go ahead. A person may decide to accept or refuse treatment, and treatment without consent is assault. Joshua was not 16, as required by the Family Law Reform Act for a valid consent, but this was a refusal anyway, not specified in the Act, so presumed to be not covered - a valid consent, not a valid refusal, at 16. The fact that he made his decision on religious grounds does not change the wording of the statute.

We allow mature minors who are able to think for themselves, and make a reasoned decision on treatment to make that decision - hence consent, not refusal of presumably valid and supported medical treatment assumed to be in the patient's interests. We do tend to shy away from all minors making mistakes - if that is how we would view Joshua's death, were that death to be the result of and caused by a refusal of treatment. Had his parents been the ones to make the decision, assuming it would have been to refuse a blood transfusion, would the hospital have approached the court to verify the decision that no transfusion go ahead? 

For most of us, the decision would be to treat, and treat right and continue to treat until life is saved; the common denominator in medical treatment until the point at which a person of full capacity refuses treatment, or treatment is no longer efficacious or possible is to invoke medical intervention in favour of life.

Will there be charges arising from the accident which caused Joshua to require medical treatment, and if so, what will they be? It is never a good argument that the victim would not have died 'but for...' but he would not have been there and had that decision to make in the first place had it not been for the car crashing. Do you take your victim as you find him, or would this boy have survived if he had received treatment?

My personal view? Well, I do not share the same faith as Joshua, and I do admire his conviction. Had it been my child, I would scream ‘treat!' and taken the view that it is my responsibility and my burden as the parent of a minor to decide. Had it been me, I doubt I would have been courageous enough to have refused. We cling to life until the last moment; few of us are courageous enough to make decisions like that - and no, I don't actually agree with it.

Penny Booth is an Honorary Research Fellow at Liverpool University Centre for the Study of the Child, the Family and the Law. Click here to follow Penny Booth on Twitter.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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