Is childhood a disability? Using Mental Capacity Tribunals and Deprivation of Liberty safeguards to shield children’s capacity to consent to and to refuse medical treatment

Mackenzie, Robin and Watts, John (2014) Is childhood a disability? Using Mental Capacity Tribunals and Deprivation of Liberty safeguards to shield children’s capacity to consent to and to refuse medical treatment. Tizard Learning Disability Review , 19 (2). pp. 96-106. ISSN 1359-5474. (doi:https://doi.org/10.1108/TLDR-01-2014-0001) (The full text of this publication is not currently available from this repository. You may be able to access a copy if URLs are provided)

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Official URL
http://dx.doi.org/10.1108/TLDR-01-2014-0001

Abstract

Purpose – The purpose of this paper is to demonstrate that the common and statutory law governing children's capacity or competence to consent to and to refuse medical treatment is unsatisfactory and to suggest solutions. Design/methodology/approach – Critical legal analysis of the law on assessing minors’ decision-making capacity in relation to legal recognition of their consent to and refusal of medical treatment. Findings – Without legal mechanisms which protect both children and their rights, all children and young people are effectively disabled from exercising age and capacity-related autonomy and participation in decisions affecting their lives. Yet in English law, inconsistencies between legal and clinical measures of decision-making capacity, situations where compulsory medical or mental health treatment is lawful, and tensions between rights and duties associated with human rights, autonomy, best interests and protections for the vulnerable create difficulties for clinicians, lawyers and patients. Research limitations/implications – As the paper acknowledges in its recommendations, the views of stakeholders are needed to enrich and inform legal reforms in this area. Originality/value – The paper makes suggestions to amend the law and clinical practice which are original and far reaching. The paper suggests that in order to observe children's rights while protecting them appropriately, the Mental Capacity Act 2005 and Deprivations of Liberty Safeguards should be applied to minors. The paper recommends the establishment of Mental Capacity Tribunals, similar in nature and purpose to Mental Health Tribunals, to provide legal safeguards and mechanisms to foster the supported decision-making envisaged in recent United Nations Conventions.

Item Type: Article
Uncontrolled keywords: Children's consent to and refusal of medical treat, Children's decision-making capacity, Deprivation of Liberty Safeguards, Learning disability, Mental Capacity Tribunals, Neurodiversity
Subjects: K Law
K Law > K Law (General)
Divisions: Faculties > Social Sciences > Kent Law School
Depositing User: Cathy Norman
Date Deposited: 27 Jan 2014 12:34 UTC
Last Modified: 15 May 2014 07:36 UTC
Resource URI: https://kar.kent.ac.uk/id/eprint/38059 (The current URI for this page, for reference purposes)
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