Maximisation of minors’ capacity

Journal article citation:
Child and Family Law Quarterly, 23(4), 2011, pp.431-449.
Jordan Publishing

The Mental Capacity Act 2005 requires doctors to take practical steps to help a person with impaired capacity make a competent medical decision. However, this legal duty does not extend to minors under the age of 16, who must prove their competence and can only make decisions in their best interests. This paper considers professional guidance in the light of recent legal developments in England and Wales which require doctors to maximise a patient’s capacity, and does not restrict its applications to adults. The paper explores the implications of this duty to the treatment of minors. It particularly looks at children on the cusp of competence, considering whether there is a duty for the doctor to present information in such a way as to help the child achieve the level of competence required by law. There may be a particular problem when a child initially refuses medical treatment. The article argues that, although it is challenging to draw a line between the child’s autonomy interests and his clinical interests, techniques designed to maximise autonomy should not be employed to force minors to concede to medical views.

Subject terms:
human rights, law, medical treatment, mental capacity, young people, children, decision making, doctors;
England, Wales
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