Exclusive or Concurrent Competence to Make Medical Decisions for Adolescents in the United States and United Kingdom

I. COMPETENCY TO MAKE MEDICAL DECISIONS Making decisions about receiving or refusing medical diagnosis and treatment continues to challenge health care providers, legislators, lawyers and judges, ethicists, patients, and families. For the past half century the focus has been on informed consent as a necessary condition for diagnosis and treatment. (2) The Supreme Court of the United States has recognized "[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment...." (3) The assertion that a competent person has a "constitutional right" to accept or refuse medical treatment requires an analysis of how competence is defined and who determines whether someone is competent. Competency determinations are particularly difficult for "minors, who are sufficiently mature that it is implausible to exclude them from the decision-making process altogether, but whose competence to make certain important decisions is questionable." (4) It is helpful to avoid assuming a dichotomy between the globally competent (who can always make any decision) and the non-competent (who can make none). There are times when a court is called upon to determine global competence; it does so in actions for guardianship of the person. (5) Precisely because such proceedings can legally result in the loss of significant personal rights and freedoms, such decisions are predicated upon heightened protections for the individual, including psychological examinations by experts, interdisciplinary recommendations, hearings with heightened burdens of proof, and the appointment of counsel. (6) Ordinarily competence is understood as decision-making capacity which is decision-relative, not global. "A competence determination, then, is a determination of a particular person's capacity to perform a particular decision-making task at a particular time and under specified conditions." (7) Because the law requires informed consent before any medical diagnosis or treatment, there must be some initial determination that the person providing consent is capable of doing so, i.e. is competent. (8) Similarly, ethical norms and standards of professional conduct require that health professionals receive consent from patients before treatment. A health care provider who acts without adequate informed consent, except in narrowly defined emergency situations, runs the risk of criminal prosecution, civil liability and/or professional discipline. One who is determining competence should be aware that the law presumes global competence for all adults. (9) Those who have not reached the age of majority or adulthood, which at common law was twenty one and now generally is eighteen, were called "infants", later "children" or "minors." (10) It should be obvious that arrival at some defined age of majority, the birthday when a child who lacked almost all legal powers and liberties immediately possesses all of them, is inconsistent with our experience and understanding of the processes of education and maturation. On the other hand, the efficient functioning of society requires some general line of demarcation when those in the process of growing up are legally recognized as adults who both demand and are given responsibility for their own actions and decisions. Medical decision-making is one area where drawing and applying a single defining line between childhood and adulthood has proven difficult. Each society determines how it will allocate decision-making authority with respect to children. This article will address how such allocations have been developed in the United States and the United Kingdom. An analysis of the capacity of an adolescent to make decisions remains incomplete without some consideration of the role of parent(s) and of the government. It is precisely here that recent developments in the United Kingdom may provide helpful guidance in the United States. …