Doctrinal incoherence or practical problem? Minor parents consenting to their offspring’s medical treatment and involvement in research in England and Wales [2013] CFLQ 1

Keywords: Minor parents - minor children - consent - medical treatment - medical research - guardianship

To operate effectively legal systems need clear boundaries such as those defining legal/illegal, man/woman, competent/incompetent, and parent/child. However, some situations blur the point at which one category changes into another - an example of this is when someone under 18 becomes a parent. In this article I explore how the law in England and Wales handles their dual status as parent and child in the context of consenting to their offspring receiving medical treatment and to being involved in medical research. I consider the current law on who can give consent where both the parent(s) and their offspring are minors, and suggest that the law is doctrinally incoherent in this regard and that this might leave both the parent and relevant health professional in a confused and precarious position. As under 18s continue to get pregnant and give birth, their legal position and responsibilities must be clear, and health professionals need to know from whom to obtain legal consent. I argue that 16 and 17 year olds should be presumed to have capacity under the Mental Capacity Act 2005 and so be able to consent to their offspring being treated or involved in research, and propose that for the offspring of minor parents under 16 supportive guardians are created, following the model of special guardians. Supportive guardians would provide the necessary consent for treatment and research until the minor parents have the legal capacity to do so, but would facilitate and support the involvement of minor parents under 16 in the decision-making process.

The full version of this article appears in issue 1 of 2013 of Child and Family Law Quarterly.