References

An NHS Trust v X. 2021;

Bell & Anor v The Tavistock And Portman NHS Foundation Trust. 2020;

Mental Capacity Act 2005 code of practice.London: TSO; 2007

Gillick v West Norfolk and Wisbech AHA. 1986;

Grubb A, Laing J, McHale J, Kennedy I. Principles of medical law.Oxford: Oxford University Press; 2010

Re D (a child). 2019;

Re M (A Child) (Refusal of Medical Treatment). 1999;

Re W (A minor)(Medical treatment court's jurisdiction). 1992;

Schloendroff v Society of New York Hospitals. 1914;

Consent, capacity and minors aged 16 and over

12 May 2022
6 min read
Volume 31 · Issue 9

Abstract

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the requirements for consent for minors who are 16 and 17 and whether the Courts have the right to overrule a young person with capacity

A person's right to dignity, choice and bodily integrity means that touching an individual is limited in law and the initial presumption is that this will not occur without consent. Consent also establishes the propriety of the treatment given by nurses and provides a defence to an allegation of unlawful touching both for the tort of trespass to the person and the crime of battery.

The role of consent in health care and its fundamental nature was best summed up by Justice Cardozo in Schloendroff v Society of New York Hospitals (1914) where he held that:

‘Every human being of adult years and sound mind has the right to determine what shall happen to their own body.’

Although the ruling sets out the right of adults to have their autonomy respected, it does suggest that the situation is different for minors.

Grubb et al (2010) argued that minors progress through three consent stages before reaching majority at 18:

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