Test to decide legal competence

Basic model: Young person understands the nature and possible consequences of the treatment.

Possible additional criteria:

• Treatment is in young person’s best interests.
• Presumption of competence for young person above certain age (eg, 14).
• Written support for treating medical practitioner’s opinion from a second medical practitioner.

• Recognises young people as individuals with varying degrees of maturity in respect of each other and in respect of the type of treatment in question.
• Additional criteria provide safeguards against medical practitioner’s error of judgment and against young people acting to their own detriment.

• Uncertainty about the appropriate level of understanding required, with possible need for guidelines to promote consistency in assessment.
• Reliance on individual medical practitioner’s ability to make fair assessment, where medical practitioners vary in degrees of training and experience in treating young people.
• Difficult to challenge medical practitioner’s decision before the effects of that decision are made known.
• Question the practical effectiveness of the additional criteria as safeguards.

See para 3.10-3.21.

Model Two - Fixed cut-off age

Test to decide legal competence

Basic model: Young person is above a certain age (eg, 14).

Possible additional criteria: General rule could be subject to exceptions for certain types of treatment to which a person of any age could consent (eg treatment for a sexually transmitted disease).

Advantages

• Certainty and consistency in application of test, without reliance on individual medical practitioner’s judgment.
• Exceptions for specified types of treatment would ensure that certain types of treatment are available to all young people, where public policy dictates that it should be.

• Does not accommodate individual rates of maturity and deprives some young people of the right to make their own decisions about particular types of treatment when they have a sufficient level of maturity to do so in respect of the particular type of treatment in question.

See para 3.22-3.23.

Model Three - Combination test

Test to decide legal competence

Young people over a certain age (eg, 14) may be competent to decide if the treating medical practitioner considers that they have sufficient understanding of the nature and possible consequences of the treatment.

Advantages

Strikes balance between accommodating rates of individual development and consequences of a medical practitioner wrongly deciding that a young person is legally competent to decide.

Disadvantages

• May be too complicated to operate effectively in practice.
• Deprives individuals below the cut-off age of the right to make decisions where they may be sufficiently mature to do so in respect of the particular type of treatment in question.

See para 3.24-3.26.

Model Four - Assess competence according to type of medical treatment

Test to decide legal competence

Young person of any age can consent to (or, possibly, refuse) specified types of treatment (eg, termination of pregnancy, certain types of contraception).

Advantages

• Certainty and consistency in application of test.
• Easy for medical practitioners to know and apply.
• Ensures that no young people are deprived of certain types of treatment that, for public policy reasons, they should have ready access to.

• Question whether it is adequate, as the sole test for legal competence, to recognise young people’s right to make decisions about their lives and provide them with access to appropriate health care.
• Difficulties in identifying and agreeing on all the types of treatment to which young people should be able to consent (or refuse).

See para 3.27-3.29.

Model Five - Assess competence according to specific groups of young people

Test to decide legal competence

Basic model: Young people who fall within a particular category are automatically considered competent, eg, young people who are married or living in de facto relationships, who are parents or who are estranged from their parents.

Possible additional criteria: Treating medical practitioner considers that proposed treatment is in the young person’s best interests.

Advantages

• Overcomes practical difficulties in providing health care to these groups of young people, where it may not be appropriate or possible to seek their parents’ consent.
• Additional “best interests” criterion provides safeguards against young people in these groups acting to their own detriment.

• Test may be considered arbitrary: membership of one of these groups does not necessarily connote maturity and other young people not in these groups may be sufficiently mature to understand the treatment in question.

See para 3.30-3.31.