Mature Minors and the Refusal of Medical Treatment: A Misuse of Gillick?

Abstract

This thesis aims to explore and critique the current law governing the refusal of medical treatment by mature minors. Through assessment of the application and interpretation of the current law, the legal picture is found to be unsatisfactory. The law in this area is riddled with confusion. This thesis aims not only to call for reform within this area, but to question the validity of the infamous Re R and Re W cases. This thesis will explore refusal cases involving mature minors, criticising the judiciary’s apparent avoidance of the difficult issues within this area. It shall be argued that the courts have avoided embracing mature minors’ autonomy by manipulating, or even ignoring, the Gillick test when deciding whether a child deserves capacity. As such, the law is in need of urgent clarification.

This thesis shall argue that the law in this area, currently appearing to prevent competent minors being granted capacity, is incompatible with the United Kingdom’s obligations under the European Convention on Human Rights and the UN Convention on the Rights of the Child. Finally, this thesis concludes by stating that most suitable route for reform would be through the judiciary, whilst emphasising the importance of society’s willingness to embrace children’s independence, abilities, and rights as a crucial aspect of reform. Ultimately, this thesis aims to argue that competence should, as a general rule, lead to determinative capacity for mature minors.