In society in general, and in medical ethics in particular, patients are described as either child or adult. Children are taken to be distinct from adults in many different ways. Children’s behaviour is often constrained to forbid them, or to oblige them, to perform certain acts (or forbid or oblige those responsible for the child in similar ways). Amongst many examples, children are compelled to go to school, adults may attend school or its equivalent; children are forbidden from voting, adults are
permitted to (or required to in some states); children may not smoke cigarettes, adults are permitted to, and so on. In medical ethics “…there has always been a substantial degree of shared understanding that childhood implies a separate and safe space, demarcated from adulthood, in which children can grow, play and develop." [UNICEF, 2005; 3] and importantly “There is a bright line between how we treat adults and how we treat children.” [Baker, 2013; 311]34. A step change is imposed on the incremental development of a child through life into adult, and the incremental development continues in adults until eventually the changes of senescence follow. The progression from newborn baby to adult (and beyond) is a gradual, seamless, change. There is not (as with insects) an immature (larval) stage, a distinct
metamorphosis and then the emergence of the adult form. Insects show a clear physical separation between their life stages, but in distinguishing human adults from human children a clear distinction is imposed on the gradual change through life35.
34 An example of this distinction from medicine is that emergency contraception in the US is
available only to those who are 17 or older, despite clear evidence that it is safe for women between 15-20 years old, and has fewer side-effects than paracetamol which a 12 year old can buy. The Health Secretary overruled the Food and Drug Administration (FDA) Commissioner [Wood, 2012; 101].
35 Or perhaps it is even more complex. Some argue that newborn babies are valued less highly
than older children and adults [Tooley, 1972; Ross, 2007]. In a provocative recent paper, Giubilini and Minerva argued that when problems are discovered after birth, but if known
The situation is, of course, more subtle than a straightforward dichotomy of adults and children. Older children have more say over their lives than younger children. This is recognised within the UN's Convention on Children's Rights which “...shall assure to the child...the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child'. [Article 12 United Nations, 1989]. Parents of older children recognise the growing maturity and abilities of the child and that the concerns of the older child carry more weight than those of a younger child. The parents of many older children allow them to make at least some of their own decisions. And if the parents don’t, then the child can appeal to others inside or outside the family, and perhaps eventually to law, (when it may be recognised as Gillick competence). The multiplicity of terms used to describe children (discussed above) recognises these different stages of
childhood, but what unites them as stages of childhood is that children do not have the decisional authority of adults.
In recent times there has been a drive to involve children in decisions that are made for them. So the principle of ‘no decisions about me without me’ applies to children [Department of Health, 2012] and a child’s right to ‘express’ themselves freely. Some may encourage older children to believe that they have, and should have, decisional authority equal to those of adults. But a child’s right to express her views is different from decisional authority. These together may encourage an older child (and others) to believe that older children will be treated differently from other children. In one sense
before the birth would have justified abortion, then infanticide (or as they call it, after-birth abortion) should be permitted [Giublini & Minerva, 2013]. I believe that their arguments fail for several reasons. That the authors use the term 'after-birth abortion' instead of infanticide suggests that they need to ease their conclusions in and are less confident in the strength of their arguments. However, the important point is the claim that newborn babies are (in at least some people's eyes) not quite the equal of older children, and so the dichotomy of children and adults is incorrect. Janvier and colleagues described that newborn babies are less valued than older children in clinical practice. In withdrawing care from a baby, a family may say ''It won't be fair to our other children” [Janvier, 2007; 418] but the authors doubt doubts parents would give the same reason when making decisions about an older child’s treatment. Furthermore, when clinicians prioritise treatment allocation for imaginary severely ill patients by ranking patients of different ages and diseases, they prioritise babies’ need for treatment less highly than seems justified (seventh of eight cases on average) given the likelihood and completeness of recovery of the patients of different ages. Again the claim here is that newborn babies may not be the equal of older children. I do not intend to consider this matter further here.
this is true: if a young person has made a wrong choice(by this I mean a decision that seems wrong to others), they should be reasoned or argued with, in a way that would be impossible with a one year old child. But in another sense it is not true: if a child makes a wrong decision, then the decision would be overruled (if the harm is significant) in a way that is not true for an adult. If the harm is limited a child may learn some things by being allowed to make a wrong choice. Discussion afterwards may be important in helping the child to learn to make decisions and take
responsibility. But, for a child, another is responsible for the decisions that are made. If a child makes a decision, another (an adult) has allowed the child the authority to make the decision and so another - not the child - is responsible for the consequences. It is not enough (as it would be for an adult) to say that the child made their own decision.
It is often claimed that children should be allowed to make decisions to teach them how to make decisions36. And this is true: if decision-making is not practiced then decision-making will be more difficult when the time comes to take decisions. Anyone may be overwhelmed if suddenly confronted with an enormous number of decisions having previously taken none. However, there is an enormous difference between teaching a child something and allowing a child to do something. Teaching a child to make decisions is very different from allowing the child to make decisions37. In teaching children to make decisions, a parent will discuss the relevant concerns and considerations with the child, explaining the prioritising of different reasons, probing the child for her opinions and views, and perhaps aiding the child’s reasoning. As the child becomes more skilled, the adult may argue against the child’s decision to test her resolve. Towards the end supervision may be from a distance, the child may not even know that they are being supervised. All of these are different from allowing the child to make decisions. Even when supervising from a distance the adult retains
responsibility for the child. Piker describes this process stating that for children we assign “….decision-making authority to adults: they not only make treatment
36"“This epitomises the growing trend in law and social policy towards nurturing children’s eventual independence by supporting autonomous choices in the spheres in which they are capable of exercising such choice” [Bielby, 2005; 362]."
37 Teaching a person to fly a helicopter differs from allowing someone to fly a helicopter. Allowing someone to fly comes towards the end of training.
decisions, but also decide how much evidential weight (if any) to give to adolescents’ input in specific cases when making judgments about their best interests. It is also collaborative to the extent that adolescents actively participate in and contribute to the decision-making process along with adults…” [Piker, 2011: 208]. Swift writes of children’s schooling that “...it needs to be made absolutely clear - all the way through - that the decision will be taken by the parents” [Swift, 2003: 157]. For all these
reasons, although interactions with older children may differ from interactions with younger children, adults make decisions for children.
One reason why there is confusion in approach to older children is that terms such as young person, adolescent, youth and young adult can be used to avoid describing a person as an adult or child. And by using ‘young person’ without being clear about its meaning, a young person can be treated at times as a child and at other times as an adult, with no one being clear about what should be done or how they should be treated. Hard choices can be obfuscated. Young person is a particular troubling example as it is used widely and it is used with directly contradictory meanings38. With agreement on a consistent meaning, then a conception such as young person might be a useful staging post on the way from child to adult. There could be serious consideration of the way in which young people, as a stage between childhood and adulthood, could develop. But because young person can mean a child (or adult) over such a wide range of ages and abilities, the term hinders clear discussion of the way that older children should be treated. Falling back on a term like ‘young person’ prevents a clear consideration of the way that we should deal with older children39.
38 The General Medical Council issued guidance 0-18: Guidance for all doctors, with the
definition “…‘children' usually mean younger children who lack the maturity and understanding to make important decisions for themselves. Older or more experienced children who can make these decisions are referred to as ‘young people'.” [Appendix 1 General Medical Council, 2007]. For the GMC young people are clearly children. The Department of Justice states “Children between 10 and 17…are treated differently from
adults…Young people aged 18: Young people aged 18 are treated as an adult…” [Department
of Justice]. For the Department of Justice young people then must be at least 18 years of age and are clearly adults (in law) and will be treated as adults but for the GMC young people are older children. More broadly in official sources ‘young people’ can be between anywhere the ages of 11 years [North Somerset Council; BARCA-Leeds] and 25 years old [Bolton Young Persons Housing Scheme; National Express].
39 An example of the confusion between adult and children from the medical ethics literature is
given by Salter: “There are significant differences that characterise health care decision making for children when compared with adults. First the consent of the patient is given much
I have claimed that we do not think clearly about children and one particular example lies in the distinction between children and adults. I will give two examples. First, contrast the age of criminal responsibility in England and Wales (of 10 years) [UK Government] with the fact that the courts have consistently overruled the medical decisions of considerably older children (15 and 16 years old) [Re W (A Minor)
(Medical Treatment: Court’s Jurisdiction) [1992]; re E (A Minor) (Wardship: Medical Treatment) [1993]; re L (A Minor) [1998]]. What is taken to underpin competence to make medical decisions is that the child has “…sufficient understanding and
intelligence…” for the choice under consideration [Gillick and West Norfolk and Wisbech Area Health Authority and Another [1986]]. The features that underpin competence to make medical decisions (the ability to take in information, to analyse that information and to make and express a choice that reflect sustained personal choices) must be the same sort of abilities that underpin the concept of moral agency and moral responsibility and these must underpin the notion of criminal responsibility. Both medical decisions and criminal responsibility are united by the thought that people with sufficient reasoning powers should navigate their own way through life, reaping the rewards and bearing the consequences of their own choices. Usually when making health care decisions the child can be given full information, which can be presented repeatedly and the child can be given time to consider the information. The child has the opportunity, for calm reflection and discussion with their parents or others that the child chooses to turn to for advice. Contrast this with the sort of decisions for which children are held criminally responsible. Full information of the consequences is not guaranteed and is, often, unlikely. Actions often occur in the heat
less weight, and the views of the caretaker are given much more weight, especially where the caretakers are the child’s parents. When dealing with a competent adult, doctors will lay the most weight on the patient’s consent or refusal, even sometimes at the expense of the patient’s best interests and, in some instances contrary to the family views…On the other hand when dealing a minor, doctors will lay most of the burden on the views of the parents and less, if any, on the child (particularly in cases where the child is unable to formulate or express a view)…” [Salter, 2012: 180]. When dealing with a competent adult, best interests do not come into it; it all depends on the adult’s consent, and the doctor’s willingness to deliver treatment. When dealing with a child, treatment depends on the consent of the parents, again accepting that a doctor will act in the child’s interests. No sense can be made of the child’s views ‘particularly in cases where the child is unable to formulate or express a view’. The mischief that Salter does lies in failing to recognise the clear difference between the way that we approach children and the way that we approach adults.
of the moment, and certainly without time for calm reflection. Responsible and wise adults are likely to be absent. For a child of given age or ability, factors which are likely to increase their powers of reasoning and understanding, and so their
competence, are present for medical decisions, but not for the times when criminal responsibility is invoked. If this is true, children’s medical decisions should be respected at younger age than the age from which they may be held criminally
responsible. Meynen discusses the relationship between competence to make medical decisions and forensic assessment of criminal responsibility for adults but does not touch on children [Meynen, 2009].
A second example comes from gun law. The power of air rifles is strictly limited by law, but even with this children under 14 years cannot own an air rifle40, an air rifle that a child uses must be owned by their parents. This seems to be a reasonable age limit. Older children may be allowed progressively more responsibility by their parents and can learn under declining adult supervision. However, shotgun licences can be awarded to children at younger ages, and some have been awarded to children under the age of 10 years41. A shotgun is a far more powerful and potent weapon than is an air rifle. There can be no reason why it would be appropriate that a 13 year old is denied an air rifle, but a 10 year old is granted a shotgun licence. I do not want to discuss the age at which children should be allowed to own a gun (though I believe that 10 is too young), but to point out that we do not have a clear and coherent approach to children given the clear inconsistencies in the way that we treat them.
In conclusion I have argued that although it is widely agreed that there is a clear distinction between children and adults, when it is examined the distinction becomes less clear. In writings about children the use of some terms, in particular young person, has blurred clear discussion and confused our approach especially to older children. These problems are less important for this thesis as I discuss the approach to treatment for unquestionably incompetent children.
40 “Under 14 years…You cannotbuy, hire or receive an air rifle or its ammunition as a gift, or
shoot, without adult supervision. Parents or guardians who buy an air rifle for use by someone under 14 must exercise control over it at all times, even in the home or garden.” [BASC].
41 “Thirteen children under the age of 10 have been issued with shotgun certificates in the UK