CHILD-FRIENDLY HEALTHCARE:
DELIVERING ON THE RIGHT TO BE
HEARD
MARY DONNELLY AND URSULA KILKELLY∗
Faculty of Law, University College Cork
I. INTRODUCTION
Under the United Nations Convention on the Rights of the Child
(CRC),1
children capable of forming views have the right to express
those views and have them taken into account in all decisions that
affect them. The last two decades have witnessed the increased participation
of children in decision-making in areas such as education,2
family law,3
and on matters of public policy.4
However, attention has
only more recently focussed on the child’s right to be heard in the
context of healthcare decision-making. In 2009, the United Nations
Committee on the Rights of the Child, the body with responsibility
for monitoring implementation of the CRC, stated in the context of
healthcare that:
Children, including young children, should be included in decisionmaking
processes, in a manner consistent with their evolving
capacities.5
∗
We would like to thank the Office of the Minister for Children and Youth
Affairs which funded the empirical research underpinning this article and
also thank the participants in this study. We are also very grateful to the referees
for their helpful and incisive comments.
1
General Assembly Resolution 44/25, November 20 1989, art 12.
2
L Lundy, ‘“Voice” Is not Enough: the Implications of Article 12 of the United
Nations Convention on the Rights of the Child for Education’ (2007) 33 Br
Educ Res J 927.
3
See, for example, C Smart and B Neale, ‘It’s My Life Too – Children’s Perspectives
on Post-divorce Parenting’ (2000) Fam L 63; M Gollop, A Smith
and N Taylor, ‘Children’s Involvement in Custody and Access Arrangements
after Parental Separation’ (2000) 12 Child Fam LQ 383; K Ro¨ba¨ck and I
Ho¨jer, ‘Constructing Children’s Views in the Enforcement of Contact
Orders’ (2009) 17 Intl J Children’s Rights 663.
4
G Lansdown, Promoting Children’s Participation in Democratic DecisionMaking
(UNICEF Innocenti Research Centre, Florence 2001); R Sinclair, ‘Participation
in Practice, Making it Meaningful, Effective and Sustainable’ (2004)
18 Children and Society 106; N Thomas, ‘Towards a Theory of Children’s
Participation’ (2007) 15 Intl J Children’s Rights 199.
5
Committee on the Rights of the Child, General Comment No 12 The Right of
the Child to be Heard (2009) UN Doc CRC/C/GC/12, para 100.
Medical Law Review, 19, Winter 2011, pp. 27–54
doi:10.1093/medlaw/fwq034
Medical Law Review # The Author [2011]. Published by Oxford University Press; all rights reserved.
For Permissions, please email: journals.permissions@oup.com
At a national level, in the UK, much of the increased recognition of the
importance of children’s participation may be traced to the Report of
the Bristol Royal Infirmary Inquiry which set out a new framework
for communication between healthcare professionals, children, and
their parents or carers.6
The Inquiry recommended that:
Healthcare professionals who care for children must be able to
listen to children, to respect their needs for information and to be
prepared and able to give such information in the right amount
and in a way which is suitable for the child’s age.7
This approach is now reflected in ethical guidance for healthcare professionals
working with children and young people. The guidance
issued by the Royal College of Paediatrics is indicative of this new
approach, requiring that ‘[p]aediatricians must listen to children and
young people and respect their views’.8
Acceptance of the principle that children and young people should
participate in decision-making about their healthcare is, of course,
only a first step. As Priscilla Alderson and Jonathan Montgomery
point out ‘[p]articipation can be worse than useless when used as a pretence
of consultation, or to disguise the fact that no real choice is being
given’.9
Therefore, it is essential to ensure that the development of
appropriate participative practices is informed by children’s real-life
experiences and that practical barriers to participation are identified.
This article explores children’s participation in healthcare decisionmaking,
with a particular focus on younger children.10
This focus
reflects a concern to explore participation rights in a context which is
broader than the mature child’s right to decision-making autonomy.
6
Learning from Bristol: The Report of the Public Inquiry into Children’s
Heart Surgery at the Bristol Royal Infirmary 1984–1995 Command Paper
CM 5207 (Bristol Royal Infirmary Inquiry, Bristol 2001).
7
Ibid, pp 431–2.
8
See Good Medical Practice in Paediatrics and Child Health: Duties and
Responsibilities of Paediatricians (Royal College of Paediatrics and Child
Health, London 2002), para 21. In Ireland, see Guide to Professional
Conduct and Ethics for Registered Medical Practitioners (7th edn Medical
Council, Dublin 2009), para 43.1. Note also the policy shift to participation
in service planning: see J Lightfoot and P Sloper, Having a Say in Health:
Guidelines for Involving Young Patients in Health Services Development
(University of York, Social Policy Research Unit, York 2002); A Franklin
and P Sloper ‘Listening and Responding? Children’s Participation in Health
Care within England’ (2005) 13 Intl J Children’s Rights 11, 12–4.
9
Health Care Choices: Making Decisions with Children (Institute for Public
Policy Research, London 1996) 27.
10
The focus of the article is on children aged less than 14 years. For this reason,
the term ‘child’ (rather than ‘young person’) is used throughout, except when
discussing issues of competence.
28 MEDICAL LAW REVIEW [2011]
The article begins by considering what participation means and by
differentiating between autonomous decision-making by children and
children’s participation in decision-making. It then evaluates the
current state of participation in practice, drawing especially on a study
conducted by the authors into the realities of children’s participation
in healthcare decision-making in Ireland.11
This study helps identify a
number of barriers to the delivery of participative practices. In particular,
it identifies the potentially inhibiting role of parents, a finding which
is replicated by studies in other jurisdictions. The article then investigates
the legal status of parental objections to children’s participation
and argues that both the CRC and the European Convention on
Human Rights (ECHR) provide legal support for a requirement that
the child’s right to participate in healthcare decision-making must be
protected, even in the face of parental objections. The article also
argues that focussed legislation and codes of practice have a valuable
contribution to make to the delivery of children’s participation rights
in practice and that the introduction of such measures should be a
priority.
II. PARTICIPATION: WHAT DOES IT MEAN AND WHY DOES
IT MATTER?
As Alderson and Montgomery note, the concept of participation is open
to a range of interpretations, ranging from ‘having minimal information
to having quite a full share in decision-making’.12
Because of the amorphous
nature of participation, it is essential to interrogate not just how
the concept is applied but also how it is conceived.
A. Understanding Participation
In understanding what ‘participation’ means, it is important to differentiate
between participation in decision-making and autonomous
decision-making. In the latter instance, decision-making power is
located wholly with the decision-maker. While he or she may choose
to consult with others, ultimately, the freedom to make the decision,
as well as the responsibility for the decision and its consequences,
rests entirely with the decision-maker. In respect of children and
11
U Kilkelly and M Donnelly, The Child’s Right to be Heard in the Healthcare
Setting: Perspectives of Children, Parents and Health Professionals (Office of
the Minister for Children and Youth Affairs, Dublin 2006) ,www.omcya.
gov.ie. accessed 18 January 2011.
12
Health Care Choices, above n 9, p 27.
Med. L. Rev. Child-Friendly Healthcare 29
young people, the accrual of the legal right to make healthcare decisions
depends on the nature of the decision made.13
Children aged more than
16 years have a statutory right to consent to treatment14
and, for children
aged less than 16 years, the right accrues to those children who
meet the standard for competence as set out in Gillick v West Norfolk
and Wisbech Area Health Authority.15
In respect of treatment refusal,
the right accrues only when a young person reaches the age of 18
years. Prior to the attainment of this age, in England and Wales at
any rate, decisions may be overridden by the courts on the basis of
the ‘best interests’ of the child or young person.16
Participation in decision-making is different from autonomous
decision-making in a number of ways. First, the former concept is
more flexible and allows for a range of meanings. Harry Shier outlines
five levels of participation by children in decisions.17
These
are, first, children are listened to; second, children are facilitated in
expressing their views; third, children’s views are taken into
account; fourth, children are involved in decision-making processes;
and fifth, children share power and responsibility for decisionmaking.
Thus, unlike autonomous decision-making, participation is
not restricted to children who meet the designated standards for
13
For a sample of the extensive discussion of this topic, see A Bainham, ‘The
Balance of Power in Family Decisions’ (1986) 45 CLJ 262; J Eekelaar ‘The
Emergence of Children’s Rights’ (1986) 6 OJLS 161; M Brazier and E
Cave, Medicine, Patients and the Law (4th edn Penguin, London 2007),
Ch 15; J Fortin, Children’s Rights and the Developing Law (3rd edn Cambridge
University Press, Cambridge 2009), Ch 5.
14
Family Law Reform Act 1969, s 8 (EW); Non-Fatal Offences against the
Person Act 1997, s 23(1) (Irl).
15
[1986] A.C. 112. It is probable that the Irish courts would endorse a Gillicktype
approach to consent: see Law Reform Commission Consultation Paper,
Children and the Law: Medical Treatment (LRC CP 59, Dublin 2009), paras
4.05–4.07.
16
See Re R (A Minor) [1991] 4 All E.R. 177; Re W (A Minor) (Medical Treatment:
Court’s Jurisdiction) [1992] 3 WLR 758. The question has not arisen in
Ireland, although note the finding of Laffoy J in Fitzpatrick v K [2008]
I.E.H.C. 104, at p 19 of the transcript (in the context of adults) that the
refusal of life-saving or sustaining treatment constitutes a waiver of the
right to life and that, accordingly, a higher standard of capacity should be
required. For a critique of the distinction drawn between consent to and
refusal of treatment, see G Douglas, ‘The Retreat from Gillick’ (1992) 55
MLR 569; M Brazier and C Bridge, ‘Coercion or Caring: Analysing Adolescent
Autonomy’ (1996) 16 LS 84; Brazier and Cave, above n 13, pp 405–6.
17
‘Pathways to Participation: Openings, Opportunities and Obligations: A New
Model for Enhancing Children’s Participation in Decision-making in line
with Article 13.1 of the UNCRC’ (2001) 15 Children and Society 107. See
also RA Hart, ‘Children’s Participation: From Tokenism to Citizenship’
(1992) Innocenti Essays, No 4 (UNICEF Innocenti Research Centre, Florence
1992). A helpful summary of different typologies may be found in Thomas,
above n 4, 204–6.
30 MEDICAL LAW REVIEW [2011]
competence but is important in respect of all children, albeit to differing
degrees depending on their age and maturity.18
Second, as Shier’s typology illustrates, even at the highest level of participation,
children do not have the full power (or responsibility) for
decision-making. Rather, power is shared between children and
adults. Ultimately, this means that a participating child’s decision may
be overturned on the basis of what is in his or her ‘best interests’ in a
way which an autonomous child’s decision may not. However, if participation
as a right is to be respected in a meaningful way, it must
change the nature of the ‘best interests’ test. This is because participation
introduces a subjective element into what was traditionally an objective
assessment.19
It requires that the views of the child be sought and that
the child’s preferences be listened to in making an assessment of his or
her best interests. As the Committee on the Rights of the Child explains
in the context of the CRC, ‘there can be no correct application of article
3 (the best interests standard) if the components of article 12 (the right
to be heard) are not respected’.20
In England and Wales, this view of best
interests is, of course, also reflected in the Children Act 1989.21
However, it is less clear that this view prevails consistently in the healthcare
context. Here, most assessments of ‘best interests’ have tended to
take place in the context of treatment refusal.22
While the views of
the child have sometimes been noted by the courts, there is little evidence
that they have substantially influenced the decisions reached.23
Participation arguably requires that if, having taken account of the
child’s own views as part of the assessment of ‘best interests’, the
child’s views are to be overridden, the reasons for this are explained to
the child in language which the child can understand. Furthermore, it
might be argued that this approach to participation requires that efforts
must be made to act in a way which most closely accords with the
18
Note, for example, the arguments regarding participation rights of babies in P
Alderson, J Hawthorne and M Killen, ‘The Participation Rights of Premature
Babies’ (2005) 13 Intl J Children’s Rights 31.
19
For a similar argument in respect of participation by patients lacking capacity
under the Mental Capacity Act 2005, s 4, see M Donnelly, ‘Best Interests,
Patient Participation and the Mental Capacity Act 2005’ (2009) 17 Med L
Rev 1, 20–1.
20
Committee on the Rights of the Child, The Right of the Child to be Heard,
above n 5, para 74.
21
Children Act 1989, s 1(3) sets out the factors to be taken into account in
deciding whether to make, discharge, or vary an order under the Act.
These include the ‘ascertainable wishes and feelings of the child concerned
(considered in light of his age and understanding)’.
22
See S Elliston, The Best Interests of the Child in Healthcare (Routledge–
Cavendish, Abingdon 2007) 127–39.
23
See, for example, Re E (A Minor) [1993] 1 FLR 386; Re M (Child: Refusal of
Medical Treatment) [1999] 2 FLR 1097.
Med. L. Rev. Child-Friendly Healthcare 31
child’s views. Thus, for example, if an alternative treatment approach
might be adopted which would be more in line with the child’s views,
it would seem reasonable that this should be considered in the light of
the child’s views, again with reference to the child’s maturity.
While autonomous decision-making and participation in decisionmaking
are different, the concepts also have a good deal in common.
Both require the information about the healthcare decision to be provided
to the child in an accessible manner. Both concepts also place
the child or young person at the heart of the decision-making process.
In respect of many, though by no means all, healthcare decisions involving
children, it will not make a substantial practical difference whether
the decision would be categorised legally as an autonomous one made
by the child with the support of his or her parent/s or healthcare professionals
or as a decision made by adults in which the child participated.
If the parties are broadly in agreement, the decision-making
experience may well be the same from the child’s perspective, regardless
of the legal principles which underpin the process.
B. The Importance of Participation
Participation in healthcare decision-making is important for a number
of reasons. First, the right to participate in decision-making is a core
right under the CRC. Article 12 requires States Parties to ‘assure to
the child who is capable of forming his or her own views the right to
express those views freely in all matters affecting the child, the views
of the child being given due weight in accordance with the age and
maturity of the child’.24
This right has been identified by the Committee
on the Rights of the Child as a general principle, with which all CRC
provisions must be read.25
Of particular significance in this respect is
Article 13, which recognises the child’s right to freedom of expression
which includes the freedom ‘to seek, receive and impart information
. . . either orally, in writing or in print, in the form of art, or through
any other media of the child’s choice’.26
Also significant is Article 24,
which requires States Parties to recognise the right of the child to the
24
Shier, above n 17, 114, argues that the CRC protects participation to level
three of his five-level typology (see text to n 17 above), requiring that children’s
views be taken into account (although he also notes the importance
of developing participative practices to all five levels).
25
See Committee on the Rights of the Child, General Guidelines regarding the
form and contents of Periodic Reports to be submitted by States Parties under
Article 44, paragraph 1(b) of the Convention, CRC/C/58, 1996.
26
This provision is supplemented by Article 17 which recognises the role of the
mass media in disseminating information to children and requires States
Parties to ensure that children have access to information from a diversity
of sources, ‘especially those aimed at the promotion of his or her social, spiritual
and moral well-being and physical and mental health’.
32 MEDICAL LAW REVIEW [2011]
enjoyment of the highest attainable standard of health.27
Thus, state
compliance with this most highly ratified instrument in international
law28
requires the development of mechanisms for participation.29
Second, there are broader policy reasons why the child’s right to participate
in healthcare decision-making should be secured. In general
terms, it is recognised that facilitating the participation of children in
decision-making promotes children’s protection and enhances children’s
skills and self-esteem.30
Participation from an early age also assists in
developing autonomy ‘competencies’, facilitating better decisionmaking
not just in children but in the adults they become.31
In the
healthcare context, Priscilla Alderson’s interviews with children preparing
for surgery showed that many children, especially children who
because of illness or disability have had long-term exposure to the
healthcare system, have a very high degree of maturity and a profound
understanding of the issues involved in making choices about their
health.32
Participation in healthcare decision-making also has other
instrumental benefits. There is evidence that increased involvement in
decisions about treatment increases children’s adherence to prescribed
treatments as well as their adaptation to and understanding of their ill-
nesses.33
Participation also minimises conflict between children,
27
Note also the comments of the Committee on the Rights of the Child regarding
the significance of the right to express views freely and to have these views
taken into account in realising adolescents’ rights under Article 24: Committee
on the Rights of the Child, General Comment No 4 (2003) Adolescent
health and development in the context of the Convention on the Rights of
the Child, CRC/GC/2003/4, para 8.
28
The Convention has been ratified by 194 members of the United Nations,
some with stated reservations or interpretations, and only the USA and
Somalia have failed to ratify. For a discussion of the impact of nonratification
on children’s participation in healthcare decision-making in the
USA, see W Mohr and S Kennedy, ‘The Conundrum of Children in the US
Healthcare System’ (2001) 8 Nurs Ethics 196.
29
Mechanisms for delivery on Article 12 are discussed in text following n 97
below.
30
See Lansdown, above n 4; Sinclair, above n 4.
31
The importance of developing autonomy ‘competencies’ (i.e. improving individuals’
abilities to make autonomous decisions) is key to the relational view
of autonomy: see D Meyers, Self, Society and Personal Choice (Columbia
University Press, New York 1989). For application in the specific context
of children and healthcare, see S Dodds, ‘Choice and Control in Feminist
Bioethics’ in C Mackenzie and N Stoljar (eds), Relational Autonomy: Feminist
Perspectives on Autonomy, Agency, and the Social Self (Oxford University
Press, New York 2000) 229.
32
See Children’s Consent to Surgery (Open University Press, Buckingham
1993) 154–63.
33
See J Angst and D Deatrick, ‘Involvement in Healthcare Decisions: Parents
and Children with Chronic Illness’ (1996) 2 J Fam Nurs 174. Note also
that the way in which adolescents are treated by healthcare professionals is
an important predictor of their satisfaction with healthcare: see L Freed
Med. L. Rev. Child-Friendly Healthcare 33
parents, and healthcare professionals. Thus, from a perspective of therapeutic
jurisprudence, participative decision-making represents an
ideal.34
Perhaps most significantly, participation in healthcare decisionmaking
should be secured because it is important to children who
present cogent and persuasive arguments as to why this is so. These
reasons, together with other aspects of participation in practice, are
explored in the next section.
III. PARTICIPATION IN PRACTICE
In recent years, there has been a ‘paradigm shift’ within healthcare law,
reflected in a move away from reasoning from abstract principles to
instead paying attention to the experiences of those receiving health-
care.35
At the same time, there is a growing literature on children’s participation
in healthcare decision-making.36
Although not directly
concerned with participation rights, Priscilla Alderson’s groundbreaking
study of children’s consent to surgery in a number of English
hospitals provides valuable evidence of children’s views on a range of
issues, which are also of relevance in respect of participation.
Alderson interviewed 120 children aged between 8 and 15 years
awaiting surgery as well as the adults caring for them.37
Of these children,
the vast majority considered that doctors should inform both
and others, ‘Determinants of Adolescent Satisfaction with Health Care Providers
and Intentions to Keep Follow-up Appointments’ (1998) 22 J
Adolesc Health 475. One might reasonably expect a similar finding in
respect of children.
34
An approach based on ‘therapeutic jurisprudence’ recognises the ‘need for an
assessment of the therapeutic impact of legal rules’: see B Winick, ‘The Right
to Refuse Mental Health Treatment: A Therapeutic Jurisprudence Analysis’
(1994) 17 Intl JL Psychiatry 99, 100.
35
J Bridgman, ‘After Bristol: The Healthcare of Young Children and the Law’
(2003) 23 LS 229, 233.
36
For a summary of studies, see A Franklin and P Sloper, ‘Listening and
Responding? Children’s Participation in Health Care within England’
(2005) 13 Intl J Children’s Rights 11, 18–20. In addition to the work discussed
in the text, see B Beresford and P Sloper, ‘Chronically Ill Adolescents
Experiences of Communicating with Doctors: A Qualitative Study’ (2003) 33
J Adolesc Health 172; I Hallstrom and G Elander, ‘Decision-making During
Hospitalization: Parents’ and Children’s Involvement’ (2004) 13 J Clin Nurs
367; C Battrick and A Glasper, ‘The Views of Children and their Families on
Being in Hospital (2004) 13 Br J Nurs 328; I Coyne and others, Giving Children
a Voice: Investigating Children’s Experiences of Participation in Consultation
and Decision-Making in Irish Hospitals (Office of the Minister for
Children, Dublin 2006) and A Buckley and E Savage, ‘Pre-operative Information
Needs of Children Undergoing Tonsillectomy (2010) 19 J Clin
Nurs 2879.
37
For details of methodology, see Alderson, above n 32, pp 3–6.
34 MEDICAL LAW REVIEW [2011]
parents and children in advance of surgery.38
The children identified a
range of reasons regarding why they wanted to be informed about
their surgery.39
These included a desire for answers to questions; a
need to relieve anxiety and avoid unnecessary distress and a view that
information would help them to cope with the treatment. Children
also associated the provision of information with a feeling of respect,
and children who were under-informed felt under-respected.40
Alderson
also found that most children were not interested in being the ‘main
decider’. By far the most common response from children to the question
of who should be the ‘main decider’ in respect of a decision
about surgery was that children, parents, and doctors should decide
together.41
Interestingly, however, most children felt that, in their own
case, the main decider had been the adults.42
Asked how they would
deal with disagreement about a decision, most children said that they
would accept their parents’ view while the second most popular
option was to negotiate.43
In a study into children’s participation in healthcare decision-making
in Ireland, we sought to record the views of children, parents, and
healthcare professionals in a context which was overtly focussed on
the delivery of children’s right to be heard under Article 12 of the
CRC.44
Many of the views expressed by the children resonate with
those recounted by Alderson. The study is also of interest because of
the barriers to participation which were identified. Again, these resonate
beyond the Irish context.
A. Framework for the Irish Study
The legal context for children’s participation in Ireland is in most
respects similar to that in England and Wales. Ireland has ratified the
CRC without making any declarations or reservations although, as
with the UK, Ireland has not incorporated the CRC into domestic
law. There is, however, a distinctive aspect of Irish law in respect of children
which derives from the Constitution of Ireland 1937 (Bunreacht na
38
Ibid, p 118. Ninety-nine out of 120 children endorsed this view; sixteen
believed only parents should be informed and four that only the child
should be informed (one was unsure).
39
See Alderson, ibid, pp 130–8.
40
Ibid, p 132.
41
Ibid, p 164.
42
Ibid, p 164. Half of the 120 children considered that the adult had been the
main decider in their cases although only thirty-two of the parents of these
children considered this to be the case.
43
Ibid, p 165.
44
For full details of the methodology employed, see Kilkelly and Donnelly,
above n 11, Ch 4.
Med. L. Rev. Child-Friendly Healthcare 35
hE´ ireann).45
Articles 41 and 42 protect family and parental rights,
including an express protection of the parental right to provide for the
religious and moral, intellectual, physical, and social education of their
children.46
These articles have been held to limit the circumstances in
which the state may interfere with parental healthcare choices.47
The
applicable test for when state interference is permissible ‘involves the
weighing of all the circumstances, including parental responsibility, parental
decisions, the child’s personal rights’, as well as the rights of
the family in order to determine what is in the best interests of the
child.48
There is also a strong presumption that ‘the welfare of the child
is to be found in the family exercising its authority as such’.49
The implications
of the dominance of parental rights under the Constitution for
children’s participation in practice will be explored further below.50
As part of the research study, we interviewed a total of fifty-one children,
aged between 5 and 14 years. The choice of age reflected our goal
of evaluating the broader concept of participation in decision-making as
opposed to a focus on the question of decision-making competence.51
The children interviewed had varying levels of exposure to the healthcare
system.52
Our concern was to include children who had limited
exposure alongside children who had had considerable engagement.
45
Note the current proposal to amend the Constitution to include express protection
for children’s rights. The proposed amendment would include a
specific provision vindicating the child’s right to be heard in ‘any judicial
and administrative proceedings affecting the child, having regard to the
child’s age and maturity’. See Joint Committee on the Constitutional Amendment
on Children: Third Report: Proposal for a Constitutional Amendment
to Strengthen Children’s Rights (February 2010) ,www.oireachtas.ie.
46
The conservative ideology underpinning these provisions is recounted in G
Hogan and G Whyte, JM Kelly: The Irish Constitution (4th edn Lexis
Nexis Butterworths, Dublin 2003) 1829–30. For the impact of these articles
on children’s rights in Ireland, see U Kilkelly, Children’s Rights in Ireland:
Law, Policy and Practice (Tottel Publishing, Dublin 2008), Ch 3.
47
North Western Health Board v HW [2001] I.E.S.C. 90. The Supreme Court
held that the state could not interfere with parents’ refusal to have a routine
diagnostic procedure (the PKU or heel test) performed on their infant son. For
a discussion, see U Kilkelly and C O’Mahony, ‘The Proposed Children’s
Rights Amendment: Running to Stand Still?’ (2007) 2 Irish J Fam L 19.
48
[2001] I.E.S.C. 90, [182], per Denham J. The sole dissenting judge, Keane CJ,
applied a test based solely on the best interests of the child.
49
[2001] I.E.S.C. 90, [289] per Hardiman J.
50
See text following n 140 below.
51
The choice of these age perimeters for this purpose is supported by the literature
in this area: see N King and A Cross, ‘Children as Decision Makers:
Guidelines for Paediatricians’ (1989) 115 J Paediatrics 10; S Sartain, C
Clarke and R Heyman, ‘Hearing the Voices of Children with Chronic
Illness’ (2000) 32 J Adv Nurs 913.
52
Fourteen interviews were carried out, of which ten were group interviews and
four were individual interviews. The individual interviews were with children
who had considerable experience of the healthcare system.
36 MEDICAL LAW REVIEW [2011]
We also interviewed thirty parents. Individual interviews were conducted
with parents whose children had had a good deal of exposure
to the system and we also interviewed some groups of parents, including
one small group from the Traveller community.53
Finally, we interviewed
a total of fifty healthcare professionals, of which twenty-two
were individual interviews with professionals in practice54
and three
were group interviews.55
The primary goal of the individual professional
interviews was to establish how participation operated in practice
from the professional perspective, while the group interviews were
concerned with assessing levels of training provided to professionals.
B. Participation in Practice: Children’s Views
The study replicated Alderson’s findings regarding the importance which
children attribute to participation in healthcare decisions.56
Many of the
children articulated a strong sense of why direct and clear communication
and explanations were important. Some children felt better placed than
their parents to explain what was wrong with them.57
Other children commented
on their need to be involved so as to understand what was happening
to them.58
For younger children especially, understanding what was
happening was seen as important in allaying their fears.59
While clearly
expressing a preference for greater involvement, many of the children
also felt that it was important to include their parents in the conversation.
One girl, aged 10, noted the practical reasons for involving her mother, ‘if
the doctor just talks to us children and he doesn’t tell your mum, then your
mum won’t know what to look for [if something goes wrong]’.60
53
The Traveller Community is an ethnic, minority group comprising approximately
0.5% of the Irish population. Travellers have poorer health outcomes,
higher rates of infant mortality, and a lower life expectancy than the rest of
the population: see The Travellers Health Status Study: Vital Statistics of Travelling
People 1987 (Department of Health, Dublin 1987).
54
Professionals interviewed included general practitioners, anaesthetists, ENT
consultants, dentists, nurses, and specialists in children’s healthcare. It
must be recognised that there is an extent to which the individual interviewees
were self-selecting; professionals who agree to be interviewed for a project
like this are likely to be inherently more committed to the ideal of children’s
participation.
55
These were with the (mainly) nursing staff of a children’s unit in a general
hospital; a group of hospital interns; and professionals involved in the education
of healthcare professionals.
56
See further U Kilkelly and M Donnelly, ‘Participation in Healthcare: The
Views and Experiences of Children and Young People’ (2011) 19 Intl J Children’s
Rights (forthcoming).
57
Kilkelly and Donnelly, above n 11, p 41.
58
Ibid.
59
Ibid.
60
Ibid.
Med. L. Rev. Child-Friendly Healthcare 37
The children interviewed reported mixed experiences of participation
in practice. Some patterns do emerge however. First, by and large, it
seems clear that communication improves as children got older.61
Second, overall, the children’s experiences of nurses were more favourable
than their experience of doctors.62
Third, there was a clear distinction
between the experiences of children who spent time in a specialised
children’s hospital and those who were treated in general hospitals or at
general practitioner (GP) level.63
Children in specialist hospitals
reported a much higher degree of preparation for procedures and a
better follow-up explanation afterwards.64
In contrast, the majority of children who did not attend specialist hospitals
were rarely offered explanations either before or after pro-
cedures.65
Children in this category also felt less able to ask questions
or seek explanations from their doctors.66
None of the children recorded the use of physical force in the imposition
of treatment and the healthcare professionals interviewed were
generally very conscious of the difficulties to which the use of force
would give rise. In the words of one nurse (whose views were typical
of the professionals interviewed), ‘you’ve got no consent, the child is
screaming, you’ve got to think, long-term, are you providing this child
with the most horrific memory that’s going to keep them awake every
night for the next six months?’.67
However, given that the professionals
participating in the study were self-selected, the extent to which this attitude
is widely shared is not clear.
C. Barriers to Participation in Practice
The study sought to identify the practical barriers to participation from
the perspectives of children, parents, and healthcare professionals. As
with the children’s views, the barriers identified would seem to be replicated
beyond the specifics of the Irish context.68
For some children, the
language used by healthcare professionals constituted a clear barrier to
61
Ibid, p 40.
62
Ibid.
63
This view was confirmed by parents whose children had spent time in both
specialist and non-specialist hospitals: see ibid, p 51.
64
Note however evidence which suggests that the experience of children in
specialist hospital also varied considerably: see V Lambert, M Glacken, M
McCarron, ‘Visible-ness: The Nature of Communication for Children
Admitted to a Specialist Children’s Hospital in the Republic of Ireland’
(2008) 17 J Clin Nurs 3092.
65
Kilkelly and Donnelly, above n 11, p 51.
66
Ibid, p 43.
67
Ibid, p 67.
68
See the barriers listed in Alderson and Montgomery, Health Care Choices,
above n 12, 9, pp 58–61.
38 MEDICAL LAW REVIEW [2011]
communication.69
This feeling was shared by some parents, particularly
parents from the Traveller community. One Traveller woman explained
‘they should know that there is a language barrier between Travellers,
and these are Traveller children, and doctors do come out with big
words, not just to children. Like even when I go in to see the doctor,
it is very hard to understand’.70
Although we did not interview
parents from other ethnic backgrounds, it is not unlikely that similar
issues would arise in respect of language usage. From a Traveller perspective,
literacy was also identified as a barrier to communication,
especially in respect of information leaflets and medication prescrip-
tions.71
Thus, for children from a background which was already disadvantaged,
the possibility of further marginalisation was clear.72
Health professionals identified a number of practical barriers to their
delivery of effective participation. These included a lack of resources,
especially in non-specialist hospitals;73
a lack of proper space for communication;
and a lack of time.74
Professionals also noted a lack of education
or training in communicating with children75
and the problems
created by the lack of a common approach to participation among the
professionals involved. In the words of one nurse manager, ‘You
could spend some time winning confidence, having a child who is consenting,
quite happily, to have an injection or procedure done . . . and it
can be undone in a flash by a third party coming in saying the wrong
thing’.76
From a legal perspective, the most interesting of the barriers to participation
identified by the health professionals was the attitude of parents.
Parents who were themselves nervous were seen as transmitting their
fears to their children.77
Some professionals also described reluctance
on the part of parents to let their children know that they have a
serious condition. A paediatric oncologist explained ‘When you have
parents who come up here for investigation and we discover their
child has cancer, the problem we often face is the reluctance on the
part of parents to allow us to inform the child’.78
69
Kilkelly and Donnelly, above n 11, p 42.
70
Ibid, p 52.
71
Ibid, p 52–3.
72
This experience of ‘double marginalisation’ in a range of contexts of disadvantage
has been highlighted by other commentators: see Franklin and
Sloper, above n 8, 19.
73
Kilkelly and Donnelly, p 63.
74
Ibid.
75
Ibid.
76
Ibid, p 64.
77
Ibid, p 65.
78
Ibid.
Med. L. Rev. Child-Friendly Healthcare 39
Our interviews with parents confirmed that there are tensions
between healthcare professionals and parents about communicating
with children. Parents’ assertion of their own right to be involved in
the process was clearly evident in many of the interviews while, for
the most part, parents appeared to be less conscious of the child’s
right to participate. A substantial number of parents we interviewed
were critical of health professionals who sought to communicate
directly with their children.79
For some parents, this was because of a
desire to protect their child from anxiety. Other parents described
their own feelings of marginalisation which were enhanced by the
doctor’s efforts to deal directly with their child. In the words of one
woman, ‘I had to stop them and ask them had I no mouth or something
that they couldn’t ask me? . . . They shouldn’t just . . . ask the child
without letting the parent know exactly what they are doing’.80
These
parents felt that they were better placed than professionals to determine
the level of consultation which was in their child’s interests and that the
involvement of their child diminished their own contribution.81
The study suggests that parental opposition can effectively prevent
children’s involvement in the decision-making process. The professionals
interviewed indicated that they generally respected parental
views about the extent of their children’s involvement. The approach
taken was summarised by one haematology nurse as follows: ‘You
can only tell a child as much as a parent allows you to tell them and
if they ask you to please don’t mention it or please don’t tell them,
you have to respect that’.82
It is unclear whether this response is
linked in any way to the elevated position of parents under the Constitution
of Ireland. Certainly, it would seem that the professional attitude
was that parental views automatically took priority over the right of the
child to participate and that this was not a matter open to negotiation.
The impact of parental opposition on participation levels has also
been noted in several UK-based studies.83
In Young et al’s study of communication
with children with a potentially life-threatening illness, the
substantial majority of parents expressed a desire that they should be
told about their child’s diagnosis without their child being present.84
79
Ibid, p 49.
80
Ibid.
81
Ibid.
82
Kilkelly and Donnelly, p 66.
83
See studies cited in J Gabe, J Olumide and M Bury, ‘“It Takes Three to
Tango”: A Framework for Understanding Patient Partnership in Paediatic
Clinics’ (2004) 59 Soc Sci Med 1071, 1074.
84
B Young and others, ‘Managing Communication with Young People who
have a Potentially Life Threatening Chronic Illness: Qualitative Study of
Patients and Parents’ (2003) 326 Br Med J 305, 306. The study involved thirteen
families, comprising nineteen parents (thirteen mothers and six fathers)
40 MEDICAL LAW REVIEW [2011]
Some also opted to dilute or delay what their child was subsequently
told.85
Young et al noted that many parents assumed an ‘executive
role . . . managing what, when, and how, their children were told
about their illness’.86
Parents’ feelings of protectiveness towards their sick children are
understandable as are feelings of alienation or marginalisation,
especially for parents who are already disadvantaged. It is also undoubtedly
the case that parents will very often have a depth of knowledge and
insight in respect of their child which healthcare professionals cannot
match.87
As Young et al describe, in some instances, children often
relied on their parents to assist in managing the burden of communication
and, at times, welcomed the role of their parents as ‘buffers’ in
respect of threatening information.88
For these reasons, from both an
instrumental and a principled perspective, it would not be appropriate
for health professionals simply to override parental views and provide
information to children in circumstances where parents are actively
opposed.
However, the difficulty with acceding to parental views that the child
should not be involved is that this approach can result in the marginalisation
of the patient as well as, in some instances, increasing the trauma
experienced by the child. An ENT surgeon we interviewed recounts an
indicative instance:
I had a child recently who was in for an operation and the parent
said “We’ve told the child they had to come to have their photograph
taken” (nod, nod, wink, wink), wanting me to take part in
the process. And that’s obviously a bit disconcerting for everybody
and then, of course, the child becomes hysterical when they find
they’re in hospital.89
Gabe et al highlight how in any encounter involving three actors, there is
a tendency for two of them to enter a coalition in order to advance a preferred
agenda.90
In a paediatric context, this is what happens where the
agenda is set by the adults, and the healthcare professionals simply
accede to parental views.
It is, of course, also possible for the professional to form a coalition
with the patient to resist pressure from a parent to follow a particular
and thirteen patients aged 8–17 years. All patients suffered from cancer or a
brain tumour.
85
Ibid.
86
Ibid.
87
See Bridgman, above n 35, 236.
88
Young and others, above n 84, 308.
89
Kilkelly and Donnelly, p 66.
90
Above n 83, 1077.
Med. L. Rev. Child-Friendly Healthcare 41
course of action and to ensure that the child has time to come to his or
her own decision. Thus, in the event of a resisting parent, the response of
the professional plays a pivotal role in the delivery or non-delivery of
participation.91
Some of the healthcare professionals we interviewed
outlined strategies which they use to deal with parents who wanted to
limit the amount of information their child received. One paediatric
oncologist described how, for younger children, he informed the
parents first and asked them to talk the matter over with their child
while with children aged over 10 or 11, he would tell the child that
the news was bad and give them a choice as to whether to hear full
details either with or without their parents.92
More research is undoubtedly needed on how coalitions between professionals,
parents, and children operate in practice.93
From a legal perspective,
however, a question arises regarding the perimeters of the
child’s right to be heard. In particular, to what extent does the law
recognise parental opposition as a barrier to children’s right to participate
in healthcare decision-making? Legal recognition of a parental
right to prevent participation would be detrimental for participation
rights, not just in those situations where parents actively oppose the
child’s involvement, but also more generally. The possibility of a legal
barrier to participation would inevitably inhibit the development of participative
policies and practices. The next section will consider the
strength of legal support for children’s participation rights and the
legal status of parental objections.
IV. DELIVERING PARTICIPATIVE PRACTICES: THE ROLE
OF LAW
The child’s right to participate in healthcare decision-making is protected
under both the CRC and the ECHR, both of which require that
steps be taken to deliver participation in practice. However, the effectiveness
of both measures in the practical delivery of participative practices
is limited and, accordingly, the introduction of legislation should
be considered.
A. Delivering on Participation in the CRC
Article 12 of the CRC provides the foundational basis for children’s participation
rights. While the CRC is sometimes portrayed as being ‘antifamily’
on the basis that respecting children’s rights must involve taking
rights from adults, there is nothing in the CRC to support these
91
Ibid.
92
Kilkelly and Donnelly, p 67.
93
See Gabe and others, above n 83, 1078.
42 MEDICAL LAW REVIEW [2011]
conclusions.94
In fact, several articles in the CRC emphasise the role of
the family and of parents.95
The wording of Article 5 indicates the shifting
balance envisaged as the child matures. Article 5 requires States
Parties to respect the responsibilities, rights, and duties of parents
(and where appropriate extended family or community) to provide, in
a manner consistent with the evolving capacities of the child, appropriate
direction, and guidance to the child in the exercise of his or her
rights. Read together with Article 12, Article 5 demonstrates the
gradual way in which parents’ direct role in the protection of children’s
rights transfers to children as they acquire the maturity to take on this
role for themselves.
As John Eekelaar notes, the symbolic significance of a formal legal
recognition of children’s rights in an international human rights instrument
should not be underestimated.96
At a more practical level, the clear
language of Article 12 offers potential for benchmarking law, policy,
and practice.97
In this respect, the periodic reports which States
Parties must make to the Committee on the Rights of the Child
provide an opportunity not just for external evaluation by the Committee
but also for internal evaluation by citizens, civic organisations, and
academia within the state.98
In addition, the Committee’s monitoring
role allows it to direct States Parties on the extent to which implementation
of the CRC has been achieved, and the measures necessary for
more effective delivery of CRC rights.
The Committee has directed that, in the preparation of periodic
reports, details must be provided regarding how Article 12 is enshrined
in legislation.99
It also requires States to report on the specific measures
taken to raise the awareness of families and of the public in general of
the need to encourage children to exercise their right to express their
views and to train professionals working with children to encourage
children to express their views and to give their views due weight.100
In particular, details of the number of courses about the CRC provided
94
See Kilkelly, above n 46, p 28.
95
See for example, Article 7 (the child’s right to know and be reared by her
parents); Article 9 (right to direct contract with parents following separation);
Article 18 (statement of parents’ common responsibility to child).
96
‘The Importance of Thinking that Children have Rights’ (1992) 6 Intl J Law
Policy Fam 221.
97
See U Kilkelly and L Lundy, ‘Children’s Rights in Action: Using the Convention
on the Rights of the Child as an Auditing Tool’ (2006) 18 Child Fam L
Q 331.
98
Article 44(6) requires States Parties to make their reports widely available to
the public within their own countries.
99
General Guidelines regarding the form and contents of Periodic Reports to
be submitted by States Parties under Article 44, paragraph 1(b) of the Convention,
CRC/C/58, 1996, para 42.
100
Ibid.
Med. L. Rev. Child-Friendly Healthcare 43
to various categories of professionals, including healthcare professionals,
must be provided.101
In the specific context of healthcare, the Committee has issued a
General Comment on adolescent health and development.102
This
states that the CRC requires States Parties to ensure that young people
have opportunities to participate in decisions affecting their health
and to obtain adequate and age-appropriate information.103
The Committee has been less specific in respect of participation by
younger children in healthcare decisions. However, in a General
Comment on Implementing Child Rights in Early Childhood, it
emphasised that the right under Article 12 ‘applies both to
younger and older children’.104
It also emphasised that all decisionmaking
concerning, inter alia, a child’s health must take account
of the ‘best interests’ principle.105
The Committee highlighted that
the right to express views and feelings should be ‘anchored in the
child’s daily life at home and in his/her community; within the full
range of early childhood health, care and education facilities’.106
In
this context, the Committee noted that achieving the right of participation
requires adults to adopt a child-centred attitude, listening to
young children and respecting their individual points of view. It stipulated
that adults must show ‘patience and creativity by adapting
their expectations to a young child’s interests, level of understanding
and preferred ways of communicating’.107
In its most recent General Comment, issued in 2009, the Committee
further explored the implications of Article 12, including in the healthcare
context.108
In addition to recommending the introduction into law
of an age at which children can consent to medical treatment, it has also
strongly recommended that States parties ensure that, where a younger
child can demonstrate capacity to express an informed view on her or his
101
Ibid.
102
Committee on the Rights of the Child, General Comment No 4 (2003) Adolescent
health and development in the context of the Convention on the
Rights of the Child, CRC/GC/2003/4.
103
Ibid, para 39. The Committee also emphasised (para 28) that, regardless of
whether their parents or guardians consent, young people should have access
to information about family planning and contraceptives as well as about
the dangers of early pregnancy, the prevention of HIV/AIDS and the prevention
and treatment of sexually transmitted diseases.
104
Committee on the Rights of the Child, General Comment No 7 (2005)
Implementing Child Rights in Early Childhood, CRC/C/GC/7/Rev., para
14.
105
Ibid, para 13.
106
Ibid, para 14.
107
Ibid.
108
Committee on the Rights of the Child, General Comment No 12 (2009) The
Right of the Child to be Heard, above n 5.
44 MEDICAL LAW REVIEW [2011]
treatment, this view is given due weight.109
The Committee also recommended
that States parties introduce legislation or regulations to
ensure that children have access to confidential medical counselling
and advice without parental consent, irrespective of the child’s age,
where this is needed for the child’s safety or well-being (for example,
in cases of conflict between parents and the child over access to health
services).110
In this context, it explained that the right to counselling
and advice is distinct from the right to give medical consent and
should not be subject to any age limit.111
The CRC is clear in its recognition of the participative rights of all
children, not just children who have decision-making capacity. The
approach of the Committee also provides support for the argument
that parental opposition should not be permitted to limit the development
of participative practices. However, while the clarity of the CRC
approach and the level of detailed guidance provided is undoubtedly
helpful in framing policy, as Jane Fortin notes, the absence of direct
methods of formal enforcement is a weakness in the CRC.112
Notwithstanding
this, courts in England and Wales have begun to accord an
increased degree of significance to the state’s obligations under the
CRC, in general,113
and under Article 12, in particular. This is in
some contrast to Ireland, where, to date, Article 12 has not been instrumental
in judicial decisions.114
Article 12 was cited by Thorpe LJ in Mabon v Mabon in the context
of the child’s right to be heard in family law proceedings.115
Thorpe LJ
found that the applicable Rules must be applied in a way which focuses
on ‘the sufficiency of the child’s understanding’.116
He noted that
judges, in measuring that sufficiency, must ‘reflect the extent to which,
in the 21st Century, there is a keener appreciation of the autonomy of
the child and the child’s consequential right to participate in decisionmaking
processes that fundamentally affect his family life’.117
This
comment is interesting not least because Thorpe LJ appears to have
109
Ibid, para 102.
110
Ibid, para 101.
111
Ibid.
112
Children’s Rights and the Developing Law, above n 13, p 46. Contrast the
position in respect of the United Nations Convention on the Rights of
Persons with Disabilities where ratification of the Optional Protocol by
the UK allows for a direct right of petition to the Committee on the
Rights of Persons with Disabilities.
113
See R (on the application of Williamson and Others) v Secretary of State for
Education [2005] UKHL 15, [80].
114
See A Parkes, ‘Children Should Be Seen and Not Heard: A Reflection on the
Proposed Constitutional Amendment’ (2008) 11(3) Irish J Fam L 58.
115
[2005] EWCA Civ 634; [2005] FLR 1011.
116
Ibid, [26].
117
Ibid, [26].
Med. L. Rev. Child-Friendly Healthcare 45
regarded the right to participate as consequential on the child’s autonomy.
However, as has been argued throughout this article, the two concepts
are different and the fact that a child does not have the degree of
maturity necessary for autonomous decision-making does not diminish
the child’s right to participate.
The requirements under Article 12 were noted in the more immediate
context of the duty of confidentiality owed to young people in respect of
aspects of healthcare in R (Axon) v Secretary of State for Health.118
Drawing on Article 12, Silber J found that, while the facts of Mabon
were very different to those in the case in question, they served to ‘illustrate
that the right of young people to make decisions about their own
lives by themselves at the expense of the views of their parents has
now become an increasingly important and accepted feature of family
life’.119
It would, he considered, be ‘ironic’ if, in this changed ‘landscape
of family matters’, the law were to impose additional duties on healthcare
professionals to disclose information to the parents of their younger
patients.120
As with Mabon, a striking feature of the case is the equation
of Article 12 with the right to autonomous decision-making.
For present purposes, perhaps the most important aspects of the
decisions in Mabon and Axon are the extent to which they show
Article 12 beginning to play a greater role, not just in directing state
policy but in determining the outcome of legal disputes. However, the
decisions also give some cause for concern because of the narrow conception
of Article 12 adopted by the judges. It is important that the
narrow view of Article 12, as solely protecting children’s autonomy
rights rather than their broader participation rights, is not perpetuated
and that the scope of Article 12 as a right of all children to participate
in decision-making is recognised.
B. ECHR Rights
In contrast to the CRC, the protections afforded by the ECHR can
be accessed at national level.121
Although it is clear that the
ECHR applies to children as well as to adults, the absence from
the ECHR of explicit protection for children’s rights has undoubtedly
limited its potential in this area.122
At the same time, Article 8 of the
118
[2006] EWHC 37 (Admin). See also Re Roddy (a child) (identification:
restriction on publication) [2003] EWHC 2927 (Fam).
119
Ibid, [79].
120
Ibid, [80].
121
The ECHR has been incorporated in domestic law by the Human Rights Act
1998 (in the jurisdictions of the United Kingdom) and the ECHR Act 2003
(in Ireland).
122
See U Kilkelly, The Child and the ECHR (Ashgate, Aldershot 1999) 1–17;
G Van Bueren, Child Rights in Europe: Convergence and Divergence in
46 MEDICAL LAW REVIEW [2011]
ECHR, which protects ‘the right to respect for private and family
life’, has been shown to provide considerable protection for the
rights of children, both with respect to the family and in other
contexts.
In this regard, an important development in the jurisprudence of the
European Court of Human Rights (ECtHR) has been its interpretation
of Article 8 to include procedural and participation rights as an ‘add-on’
to the determination of substantive ECHR rights.123
Although this
began with the Court protecting the procedural rights of parents as
part of their respect for family life under Article 8, steps have been
taken in recent years to recognise the importance of the views of children
in proceedings that affect them. This was first evident in the cases of
Sahin and Sommerfeld against Germany,124
where the ECtHR acknowledged
the importance of judicial willingness to hear children and take
their views into account in family law decision-making. While stopping
short of requiring that children should be heard in every case, the Grand
Chamber noted that the issue depends ‘on the specific circumstances of
each case, having due regard to the age and maturity of the child con-
cerned’.125
The Court’s approach reflected concern that the decisionmaker
would be able to base his/her decision on all the available information,
perhaps suggesting an emphasis on the integrity of the process
as a whole rather than on the individual right of the child to be heard.
Nonetheless, the judgment indicated the impact on the ECHR case law
of the increasing practice in national courts of hearing children
directly.126
The complexity of determining what weight should be attached to the
views of a child, especially when those views are opposed to those of the
child’s parent, is reflected in C v Finland where a father sought to challenge
the national courts’ exclusive reliance on his child’s views that she
did not want to remain in his custody.127
Although the ECtHR found
the decision of the national courts had violated the applicant’s family
Judicial Protection (Council of Europe Publications, Strasbourg 2007); J
Fortin, above n 15, pp 60–2.
123
See U Kilkelly, ‘Article 8: the Right to Respect for Private and Family Life,
Home and Correspondence’ in DJ Harris and others (eds), Harris O’Boyle
& Warbrick: Law of the European Convention on Human Rights (Oxford
University Press, Oxford 2009), 361–424.
124
Sahin v Germany [GC] (2003) 36 EHRR 765 and Sommerfeld v Germany
[GC] (2004) 38 EHRR 35.
125
Sahin v Germany [GC] (2003) 36 EHRR 765, para 73.
126
See further Kilkelly, Children’s Rights in Ireland, above n 46, pp 225–9. See
also the ECtHR’s recognition of the right of children to understand decisions
made about them in the context of criminal proceedings: see T v UK (1999)
30 EHRR 121, para 84; SC v UK, ECtHR 15 June 2004, para 29.
127
C v Finland, Application No. 18249/02, May 9 2006.
Med. L. Rev. Child-Friendly Healthcare 47
life rights under Article 8, in so doing, it did not reject the right of the
child to be heard. Rather, the Court considered that it was the absolute
weight attached to the child’s views, which took the form of an unconditional
veto, which was problematic in this instance. Thus, while recognising
the importance of hearing children’s views, the judgment stopped
short of giving children full responsibility or autonomy to decide such
matters on their own.128
There is little modern ECtHR jurisprudence on children’s rights in the
healthcare context. However, jurisprudence of the ECtHR in other
respects demonstrates the expansive nature of the concept of ‘private
life’ under Article 8 in the context of healthcare. The ECtHR has recognised
that the right to private life encompasses a right of autonomy129
as
well as a right to physical and psychological integrity which is not
dependant on the subject’s decision-making capacity.130
The recognition
of the child’s personal right to physical integrity in Glass v
United Kingdom131
emphasises the child’s role as a rights-subject.
Although in Glass, vindication of the child’s right required enhanced
parental involvement in the decision-making process,132
it is striking
that the court’s preferred approach was to locate the decision within
the ambit of the child’s rights under Article 8 rather than within the
rights of the ‘family’.133
Although not concerned directly with children’s rights, the decision
in Storck v Germany134
is also supportive of an approach to rights
which is not focussed on the capacity of the rights-holder.135
The
ECtHR found that the applicant’s rights under Article 8 had been
breached by the administration of medication to her against her will
while she was being detained, also against her will, at a psychiatric
clinic. The Court was not concerned with whether or not the
128
J Fortin, above n 13, p 313; Kilkelly, Children’s Rights in Ireland, above n
46, p 214.
129
See Pretty v United Kingdom (2002) 35 EHRR 1, para 61.
130
See Glass v United Kingdom (2004) 29 EHRR 341, para 70.
131
(2004) 29 EHRR 341.
132
The ECtHR found, ibid, para 83, that the child’s mother’s views should not
have been overridden in the absence of authorisation by a court. See R Huxtable
and K Forbes, ‘Glass v UK: Maternal Instinct vs Medical Opinion’
(2004) 16 Child Fam LQ 339.
133
Mrs Glass had also brought proceedings in respect of her own rights under
art 8. However, the ECtHR did not address this matter, considering ibid,
para 72 that it was required only to consider the matter from the first applicant’s
standpoint.
134
(2005) 43 EHRR 96. Although she was first detained in a psychiatric clinic
at the age of 15, the applicant’s case was concerned with detention in the
period following her eighteenth birthday (ibid, para 24).
135
See M Donnelly, Healthcare Decision-Making and the Law: Autonomy,
Capacity and the Limits of Liberalism (Cambridge University Press,
Cambridge 2010), 220–1.
48 MEDICAL LAW REVIEW [2011]
applicant had capacity at the time the treatment was administered.136
Rather, it found that ‘even a minor interference with the physical
integrity of an individual must be regarded as an interference with
the right to respect for private life under Article 8, if it is carried
out against the individual’s will’.137
There is no reason in principle
why this approach should not extend to children. The decision in
Storck is also significant because of the ECtHR’s recognition of the
positive obligations which Article 8 imposes ‘to take reasonable and
appropriate measures to secure and protect individuals’ right to
respect for their private life’.138
Thus, the decision lends support to
the argument that the State has a positive obligation to ensure the
development of participative practices.139
Although the tenor of the judicial approaches might be said to provide
support for participation rights, there is very limited modern ECtHR
jurisprudence regarding a direct conflict between children’s rights and
parental or ‘family’ rights. Accordingly, as Fortin notes, the 1988
decision in Nielsen v Denmark140
‘cannot be ignored when considering
the boundaries between parents’ rights and those of their uncooperative
children’.141
In Nielsen, the ECtHR (by a nine–seven majority) found
that a 12-year-old boy’s right to liberty as protected under Article 5
had not been violated by the actions of his mother at whose request
he had been detained in a psychiatric hospital for over 5 months, notwithstanding
that he did not have a psychiatric disorder. In reaching
this conclusion, the majority of the ECtHR recognised the protection
afforded to family life under Article 8. In the words of the majority,
‘family life in the Contracting States encompasses a broad range of parental
rights and responsibilities in regard to care and custody of minor
136
Although capacity was not central, the ECtHR, ibid, para 76, stated that it
was proceeding on the basis of a presumption that the applicant had been
capable of refusing consent to admission at the time she was admitted
against her will although it also acknowledged the possibility that, having
been medicated, she may subsequently have lost capacity.
137
(2005) 43 EHRR 96, para 143.
138
Ibid, para 149.
139
Support for the need for positive action from a children’s rights perspective
may also be found in Mikulic v Croatia, Application No 53176/99, [2002] 1
FCR 720 where the state was found (para 65) to have failed to provide an
appropriate mechanism to balance the applicant’s right to have uncertainty
as to her personal identity eliminated without unnecessary delay and the
right of her supposed father not to undergo DNA tests. On the development
of positive rights under art 8, see A Mowbray, The Development of Positive
Obligations under the European Convention on Human Rights (Hart Publishing,
Oxford, 2004), 127–88. See also U Kilkelly, ‘Protecting Children’s
Rights under the ECHR: the Role of Positive Obligations’ (2010) 61 Northern
Ireland LQ 245.
140
(1988) 11 EHRR 175.
141
Children’s Rights, above n 13, p 101.
Med. L. Rev. Child-Friendly Healthcare 49
children’.142
On the matter of the child’s own views, the majority considered
that ‘he was still of an age at which it would be normal for a
decision to be made by the parent even against the wishes of the
child’.143
As Fortin notes, given that the child was 12 years old, this
reflects a ‘peculiarly authoritarian view of the parental role’.144
The decision in Nielsen could be used to support the argument that
parents have the right to determine the extent to which their children
should be permitted to participate in healthcare decision-making.
However, there are a number of reasons why Nielsen is unlikely to be persuasive
authority. First, the current status of Nielsen is questionable. In R
(Axon) v Secretary of State for Health, Silber J restricted the application
of Nielsen to circumstances involving where the child should reside and
as relevant only in respect of Article 5.145
Silber J’s ‘reading down’ has
been criticised as based on ‘rather implausible reasons’.146
Rachel
Taylor argues that a ‘more convincing reason’ for Silber’s reading of
Nielsen is the approach taken by the ECtHR to precedent.147
Taylor
notes that the Convention is a ‘living instrument’ and that Nielsen is
over 20 years old and out of line with more recent case-law. Accordingly,
she argues that Nielsen can no longer be said to represent the position in
respect of parental rights under the ECHR.148
The increased significance
accorded to the CRC (which Nielsen pre-dated) in judicial reasoning
would also lend support to this view.149
Second, even in the context of elevated parental rights, some degree of
balancing is required. In Nielsen, the majority of the ECtHR appeared
to recognise that the views of a child aged more than 12 years would
have to be listened to. Moreover, the Court also warned that parental
responsibility was not unlimited and reminded the State that it should
provide children with protection from potential abuse of parental auth-
ority.150
The necessary balancing of the rights of children and their
parents is also clear in Irish constitutional jurisprudence in respect of
family rights. Notwithstanding the superior status afforded to parental
and family rights under the Constitution of Ireland,151
the Supreme
142
(1988) 11 EHRR 175, para 61.
143
Ibid, para 72.
144
Children’s Rights, above n 13, p 101.
145
[2006] EWHC 37 (Admin), [126].
146
Fortin, Children’s Rights, above n 13, p 102.
147
R Taylor, ‘Reversing the Retreat from Gillick?: R (Axon) v Secretary of State
for Health (2007) 19 Child Fam LQ 81, 89.
148
Ibid. See also Fortin, Children’s Rights, above n 13, p 102.
149
See U Kilkelly, ‘The Best of Both Worlds for Children’s Rights? Interpreting
the European Convention on Human Rights in the Light of the UN Convention
on the Rights of the Child’ (2001) 23 Human Rights Q 308.
150
See Kilkelly, The Child and the ECHR, above n 122, p 37.
151
See text following n 45 above.
50 MEDICAL LAW REVIEW [2011]
Court of Ireland has recognised that the views of a young woman (aged
almost 18) were ‘very relevant’ in determining whether her health
records should be released to her father.152
When the case was remitted
to the Information Commissioner for determination, the Commissioner
found that the strong constitutional presumption that parental actions
are in accordance with the best interests of the child had been rebutted
by the direct evidence of the young woman that she did not wish the
information to be disclosed.153
Thus, even if Nielsen were considered
still to represent the law, it is difficult to see that parental rights could
represent a legal barrier to participation at least in respect of older
children.
On the basis of the preceding discussion, a reasonable case may be
made that there is an ECHR basis for children’s participation rights
and that parents do not have the right to limit children’s participation
in healthcare decision-making. Further, if the precedent established in
Storck is adopted in the context of children, there may be scope for a
positive duty to protect the rights of children lacking decision-making
capacity, including their right to participate in healthcare decisionmaking.
However, any development of the law in this area will inevitably
be dependent on courts having the opportunity to consider the issues
at stake. A difficulty here is that children are not well placed to assert
their participation rights and that adults, whether parents or health professionals,
may have limited motivation in asserting children’s rights in
this context.154
Ultimately, therefore, if the law is to make an effective
contribution to the delivery of participation rights, a mechanism that
is more immediately accessible must be found. The introduction of legislation
represents an obvious way forward in this regard.
C. Using Legislation to Enhance Participation
Article 4 of the CRC makes it clear that states parties must take all
appropriate measures to implement CRC rights and the Committee on
the Rights of the Child has noted the contribution of legislation to the
delivery of the child’s right to be heard.155
In this vein, Alderson and
Montgomery advocate the use of a statutorily-based Code of Practice
as a suitable mechanism for the delivery of children’s rights in the
152
McK v Information Commissioner [2006] I.E.S.C 2, [15.3].
153
Decision under the Freedom of Information Acts 1997–2003 in relation to
Case Number 000137: Mr N McK and a Dublin Hospital. The young
woman had said that ‘thinking that he might get my personal information
makes me physically sick’.
154
Fortin, Children’s Rights, above n 13, pp 67–9, recounts the limited number
of assertions of ECHR rights by children themselves.
155
Committee on the Rights of the Child, The Right of the Child to be Heard,
above n 5, para 8.
Med. L. Rev. Child-Friendly Healthcare 51
healthcare context.156
They suggest that such a Code should set out fundamental
principles, including that children should receive detailed relevant
information; that children have a right to share in making
decisions by expressing views if they have them; that children may
grant or withhold consent to proposed treatment if they are competent
to do so, subject to the supervisory role of the courts and that children’s
privacy, dignity, and confidentiality should be respected.157
The use of legislation as a way of enhancing children’s participation in
healthcare decision-making offers several advantages. It provides clear
guidance for professionals as well as for children and parents. It also
raises the profile of the issue of participation and opens public space
for debate. Law reform bodies in a number of jurisdictions have advocated
the introduction of legislation specifically directed at children’s
healthcare decision-making.158
The recent proposals of the Irish Law
Reform Commission present an interesting example of a possible framework
for such legislation.159
The Irish Commission proposes that a tiered approach to capacity to
consent to and refuse treatment should be enshrined in legislation.160
Children aged more than 16 years should be presumed to have capacity
to consent to treatment (as is currently the law). For children aged
between 14 and 16 years, the Commission proposes a functional
approach based on a legislative statement that it is lawful for healthcare
professionals to provide treatment where, in the opinion of the healthcare
professional, the patient understands the nature and consequences
of the proposed treatment; the healthcare professional has considered
the best interests of the patient; and the healthcare professional has
had due regard to any public health concerns. While the Commission
recommends that the legislation should require healthcare professionals
to encourage the patient to inform his or her parents, it does not propose
156
Healthcare Choices, above n 9, p 86.
157
Ibid.
158
See, for example, the recommendations of the Queensland Law Reform
Commission Consent to Healthcare of Young People (QLRC R 51, Brisbane
1996); the New South Wales Law Reform Commission, Young People and
Consent to Healthcare Report 119 (NSWLRC, Sydney 2008).
159
See Children and the Law: Medical Treatment (LRC CP 59, Dublin 2009)
(available at www.lawreform.ie). Appropriately, given the subject matter
under discussion, the Commission engaged in a consultative process with
children and young people: see para 1.60.
160
Although the Commission favours the adoption of a largely similar
approach to refusal as to consent, it recommends (ibid, para 5.150) that,
in respect of life-saving or sustaining treatment, the matter should be considered
by the High Court. This approach, it argues (ibid, para 5.149),
would protect minors against ‘choices which irreversibly limit their future
choices’.
52 MEDICAL LAW REVIEW [2011]
the imposition of a requirement that parents be informed or
consulted.161
For children aged between 12 and 14 years, the Commission also proposes
the adoption of a functional approach to capacity to consent.
However, for children in this age group, the Commission recommends
that the healthcare professional must inform the patient’s parents and
take account of their views (although these views are not to be determi-
native).162
For all children, the Commission recommends that a requirement
should be enshrined in law that healthcare professionals, when
treating children, should grant children an opportunity to express
their views and give these views due weight in accordance with the
child’s age and maturity.163
There is little doubt that the introduction of legislation along the lines
proposed by the Irish Law Reform Commission would raise the profile
of children’s participation in healthcare decision-making. While clearly
not addressing all of the current obstacles to fuller participation, this
approach would represent a clear statement of children’s rights in the
healthcare context. If accompanied by a Code of Practice which sets
out in more detail the requirements of best practice for healthcare professionals
working in the area, it could make a genuine difference. This,
of course, is why such legislation may be controversial and why Irish
legislators may prefer to avoid the issue. It is interesting that, although
a number of Australian law reform bodies have recommended broadly
similar legislative models, legislation has not been forthcoming there.
For this reason, while legislation may represent an ideal, it is not necessarily
one which will be delivered upon in the short term.
V. CONCLUSIONS
Healthcare decision-making involving children can be a difficult
process, especially in situations of serious illness. When children are
ill, adults have an understandable desire to protect them from difficult
decisions and to shield them from unpleasant information. Yet, as the
children we spoke to remind us, children want and need to be heard
by healthcare professionals and to be provided with age-appropriate
explanations and information in order to help them cope with the consultation
and treatment processes. In the words of one 12-year-old girl
we interviewed, ‘children want to understand if they’re sick . . . what’s
161
Ibid, para 4.127.
162
Ibid, para 4.128.
163
Ibid, para 4.115.
Med. L. Rev. Child-Friendly Healthcare 53
wrong with them, and if what their doctor is going to do will help
them’.164
Recognising the complexity and the depth of the barriers to participation
is a necessary first step to improving the delivery of participation
in practice. In the words of Alderson and Montgomery, ‘[t]he greatest
obstacles arise from prejudices about children’s inabilities, and beliefs
that it is unwise or unkind or a waste of time to listen to children’.165
In this respect, there is a need to engage with adults’ attitudes towards
children. Better information needs to be put in place which draws attention
to children’s capacities and to their legal rights. There is also a need
for better training for professionals in dealing with both children and
parents.166
In addition, more research is needed into how participation
works in practice and into the impact of factors such as social exclusion
or other forms of disadvantage on participation.167
While the law is just one component in the development of participative
mechanisms, it has a valuable role to play in improving participation
in practice as well as in changing attitudes. The CRC provides
both symbolic and practical support for the child’s right to participate,
and the Council of Europe is seeking to build on this gold standard by
drafting guidelines on child-friendly healthcare in 2011. The ECHR,
and especially the more modern jurisprudence of the ECtHR, offers
the possibility of directly enforceable protection. This article has
argued that the ECHR requires the recognition of the child’s right to
participate and that the fact of parental objections does not represent
a legal barrier to the protection of the right. However, given the limitations
of reliance on the ECHR, it has been argued that legislation, combined
with a Code of Practice, represents the most effective legal
mechanism for delivering on the child’s right to participate in healthcare
decision-making. While legislation on its own cannot deliver participation,
a clear statement that participation is to be valued and that children’s
rights are to be respected represents an important first step.
164
Kilkelly and Donnelly, above n 11, p 41.
165
Healthcare Choices, above n 9, p 58.
166
See Franklin and Sloper, above n 8, 22; Kilkelly and Donnelly, above n 11,
p 90.
167
See Franklin and Sloper, ibid, p 19.
54 MEDICAL LAW REVIEW [2011]
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