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Brierley J, Larcher V. J Med Ethics 2016; 42: 482–485

Invariably, examination candidates cannot be restrained when asked to describe Gillick competence. Alas they, and indeed their examiners, invariably know only of one side of the argument. Yet it was back in 1996, 'Brazier and Bridge (DOI: 10.1111/j.1748-121X.1996.tb00401) raised the question “is adolescent autonomy truly dead and buried” following judicial decisions which had seemed to reverse the Gillick-inspired trend for greater child autonomy in healthcare'.

Intimately linked with this ruling is the 'best interests' test. This has recently been explored in a paper (see J Med Ethics 2016; 42: 542–549) that has been summarised in this section of the British Dental Journal. At the heart of the 'best interests' test is for whom is that the best interest?

There is a tension. On one hand, there is both the legal and ethical imperative to protect children from the harmful consequences of their actions. Such has been set out by the United Nations Convention on the Rights of the Child, Article 3(1): 'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.' This has been enshrined in the Children Act 1989 with The Welfare Checklist. But then there is autonomy.

As background, it is assumed that a child of 16 years of age can consent to medical treatment as long as they demonstrate capacity to 'understand (fully) the nature and purpose of the proposed treatment and its consequences for themselves and their family.' The issue hinges on a child's right to refuse treatment. It is entirely plausible that 'refusal of treatment is more likely to be associated with adverse outcomes than consent'; refusals for treatment are considered irrational in contrast to consent that would appear rational. Notwithstanding this, 'harms of non-evidence-based therapies are increasingly recognised.'

Recent case law [NHS Foundation Trust Hospital v P [2014] EWHC 1650 (Fam)] involved a 17-year-old female with a personality disorder and history of self-harm, requiring treatment for an overdose of paracetamol. P refused consent to this urgent treatment. The Hospital Trust made an urgent out-of-hours application that indeed it would be lawful to treat P, despite her refusal. Although the psychiatrist considered she had capacity despite her mental health history and personality problems, the court ruled against her refusal as it was considered in her best interests to receive treatment.

The authors urge '...clarity over the circumstances in which society expects that autonomous choices of adolescents can be overridden.'