Skeleton Keys to Hospital Doors: Adolescent Adults who Refuse Life‐Sustaining Medical Treatment
| Published date | 01 July 2023 |
| Author | Emma Cave,Hannah Cave |
| Date | 01 July 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12798 |
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Modern Law Review
DOI:10.1111/1468-2230.12798
Skeleton Keys to Hospital Doors: Adolescent Adults
who Refuse Life-Sustaining Medical Treatment
Emma Cave∗and Hannah Cave†
We consider how the suciency of young adults’ autonomy is judged in light of biological,
social and psychological evidence that adolescence can continue into the mid 20s. Until then,
adolescent adults are prone to developmental immaturity which can aect risk taking, impul-
sivity,and independence in decision making. Some areas of law are starting to accommodate the
impacts of adolescence into adulthood, and this article considers how they do so and whether
and if so how the law relatingto medical treatment refusals in England and Wales might similarly
adapt. We argue that the right to full decision-making about medical treatment refusals at 18
based on the adult status of the individual should accommodate greater sensitivity to individual
developmental attributes and set out three ways in which that might be achieved.
INTRODUCTION
Not all medical treatment decisions command respect. Not only are some de-
sired options unavailable to patients,1but where choices exist, they must be
suciently autonomous.This ar ticle is concerned with decisions to refuse treat-
ment that others consider to be in the patient’s best interests and without which
the individual will suer signicant harm or die. In England and Wales, var ious
legal mechanisms exist to determine when a treatment refusal is insuciently
autonomous, in which case it might be overruled. One mechanism separates
minors under 18 and adults,2who gain protections of their right to decide and
lose certain welfare-based protections.At 18, an adult with mental capacity who
seeks to refuse life-sustaining medical treatment generally has the right to make
a determinative decision.3This article posits that the law can and should better
dierentiate between young adults who are still going through adolescence, and
older more mature adults.
∗Professor of Healthcare Law,Durham Law School
†Honorary Assistant Psychologist, Cumbria, Northumberland, Tyne and Wear NHS FT and BSc
Psychology student. Many thanks to Shaun Pattinson and to attendees of the Australian Centre for
Health Law Research 10th Annual Public Oration for comments on earlier drafts.We are also very
grateful to the anonymous reviewers.All URLs were last visited 3 February 2023.
1NvACCG [2017] UKSC 22 at [35].
2 FamilyLaw Refor m Act 1969,s 1. The United Nations Conventionon the Rights of the Child
1989, Art 1 says ‘a child means ever y human being below the age of 18 years unless under the
law applicable to the child,major ity is attained earlier’.
3In re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18, [1993] Fam 95 at [3] per Lord Don-
aldson MR.
© 2023 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023)86(4) MLR 984–1010
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium,provided the original work is properly cited.
Emma Cave and Hannah Cave
We consider the case for adaptation of the cur rent approach in light of bi-
ological, social and psychological evidence that adolescence can extend to the
mid 20s until which time it can impact on autonomous decision making. Bio-
logical research demonstrates the potential eect of physiological developments
of the brain on risk appreciation and self-control and social research indicates
changes in dependence on others which can in turn impact on voluntariness
in decision making. Psycholog ical tools have potential to show the impact of
adolescence on the particular decisions of individuals, demonstrating where
developmental immaturity is evident and its eect on the decision making
process.
Posited law reects the duty to protect vulnerable people from their own
harmful decisions, but dening which decisions and what evidence of agential
impediment justify a welfarist approach is controversial.4The two pr incipal le-
gal mechanisms relevant to treatment refusals are the Mental Capacity Act 2005,
which deals with people aged 16 and over who lack mental capacity, and the in-
herent jurisdiction of the court.5According to the former,an exception to the
rule that adult decisions are determinative applies if the presumption of capacity
set out in section 1(2) of the Mental Capacity Act 2005 is rebutted. In an exer-
cise of soft paternalism, others can make decisions in the person’s best interests if
the person is reasonably considered unable to make a capacitous decision.This is
true even if the incapacitated person desires a dierent course of action,though
their view will be taken into consideration.6The latter – the inherent jurisdic-
tion – applies in relation to adults who are vulnerable and lack voluntariness.7
Separately, the inherent jurisdiction also applies to children who are protected
on the basis that they are inherently vulnerable by virtue of being under the
age of 18. Accordingly, children’s capacitous and voluntary medical treatment
refusals can sometimes be overridden in their best interests.8In ReX(AChild)
(No 2)9(Re X), Sir James Munby suggested that even if minors are assessed as
having mental capacity, they have an inferior sort of autonomy to capacitous
adults.
We aim to show that it is possible to better protect vulnerable adolescent
adults through consistent application of established legal principles.10 We do
not seek to challenge the legal denition of adulthood and nor do we suggest
4 Seefor example Emma Cave,‘Protecting Patients from their Bad Decisions: Rebalancing Rights,
Relationships and Risk’ (2017) 25 Medical Law Review 527.
5 We do not consider the Mental Health Act 1983, which deals with the assessment and treatment
of people with mental health disorders.
6 Mental Capacity Act 2005, s 4(6).
7DL vA Local Authority [2012] EWCACiv 253, discussed below.
9Re X (A Child) (No 2) [2021] EWHC 65 (Fam) at [117], discussed below.
10 We acknowledge Martha Fineman’s theory of universal vulnerability (Martha Fineman, ‘The
VulnerableSubject and the Responsive State’ (2010) 60 Emory Law Journal 251;Martha Fineman,
The Autonomy Myth (New York, NY:New Press, 2004) and Beverly Clough’s related argument
that the capacity / incapacity binary can result in the restriction of paternalistic state intervention
to the incapacitous, which in turn is used to justify harmful non-intervention in relation to
vulnerable people with capacity (Beverly Clough, ‘Disability and Vulnerability: Challenging
the Capacity/ Incapacity Binary’ (2017) 16 Social Policy and Society 469, 471-772 and more
generally,Beverly Clough, The Spaces of Mental Capacity Law: Moving Beyond Binaries (Abingdon:
© 2023 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(4) MLR 984–1010 985
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