Competent children? Minors’ consent to health care treatment and research
Introduction
This paper relates consent to children's bodies, health and illness, their views and behaviours, (dis)abilities and experiences, their rights, relationships and status. The paper mainly considers current English/Commonwealth law and guidance, but also refers to some international influences and to historical examples that are basic to, or have developed towards, present policy. Guidance in law and ethics on healthcare and research has variously either ignored children (Nuremberg, 1947) or intensely discussed them (US, 1997; RCPCH, 2000; BMA, 2001; MRC, 2004), carefully protected them or entered them into high risk research (Beecher, 1966; Pappworth, 1967; Sharav, 2003), regarded them as either the last (RCPCH, 2000) or as the first (Nuffield, 1992) group to take part in research. This paper concentrates on controversies about children's consent. It reviews children's status and rights to consent, various definitions and assessments of their competence, and calculations of risk. Consent to healthcare treatment and consent to research often overlap when research investigates treatment, and the concept of ‘therapeutic research’ and the limited remit of consent are critically analysed. Finally, children's status and capacities to consent are reviewed as possibly a reflection, mirror image, or indicator of practitioners’ and researchers’ own status and capacities.
Section snippets
Beyond an age of consent: the law
There is a movement beyond an arbitrary ‘age of consent’ towards respect for individual children's abilities. This is partly because, as will be illustrated in later sections, contingencies such as experience and ability can be more salient than age to a child's competence. The statutory age of consent to treatment varies considerably between countries from 12 to 19 years, illustrating how arbitrary it can be. However, formerly the child's status, as silent infant or articulate young adult, has
Concepts of competence
Adult research subjects are assumed to be competent unless they obviously show serious incompetence. Researchers tend to start from a presumption of incompetence with children, a double disadvantage for children since it is hard for them to challenge the strong views of the relatively more powerful and confident adults, and it is harder to demonstrate competence than incompetence, which can fairly easily seem to be proved by one or two mistakes or misunderstandings. The following sections
Discussion: reflections on children's consent
(Practitioners and researchers will be referred to as professionals.) This final section suggests that main themes in this paper relate to professionals’ own reflexive understanding and also illustrate how professionals’ and children's status and competencies can reflect and either mutually reinforce or undermine one another. Children's consent, as with vulnerable people of all ages such as those with learning or mental health difficulties, prisoners or asylum seekers, can raise extra ethical
Acknowledgements
I am grateful to all the children and adults who took part in and otherwise worked on or helped with the series of studies on consent, also to the six reviewers who commented on this paper.
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