Family Law

Stephen Gilmore
King's College London

Jonathan Herring
Exeter College, Oxford University

This article examines academic debate surrounding the law on children's consent to, and refusal of, medical treatment. The authors respond to an article by Emma Cave and Julie Wallbank (‘Minors' Capacity to Refuse Treatment: A Reply to Gilmore and Herring' [2012] Medical Law Review), which is critical of the authors' analysis explained at [2011] CFLQ 3 (and summarised at [2011] Fam Law 715). In contrast to Gilmore and Herring's focus on consent to treatment, Cave and Wallbank argue that the approach to determining a child's capacity to consent should be context-dependent, focused on the particular decision confronting the child. They suggest therefore that consent to medical treatment might sometimes require an understanding of the consequences of refusal of treatment, or of options offered and ability to choose between them. In this article, Gilmore and Herring argue that Cave and Wallbank's approach could lead to many more children lacking capacity to consent to medical treatment and being subject to paternalistic intervention. Gilmore and Herring explain why they do not find Cave and Wallbank's arguments, nor their suggested ‘decision-focused' approach, convincing.

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