A NEW REPORT recommending that teenagers aged 16 and 17 be given the right to refuse medical treatment is being published this evening by the Law Reform Commission.

The report, Children and the Law: Medical Treatment, is being launched by Minister for Children Frances Fitzgerald.

The Commission’s report outlines 20 recommendations it says are aimed at clarifying existing law for 16- and 17-year-olds regarding medical treatment and ensuring that people under 16 have their views taken into account when receiving treatment. In a statement this morning, it says:

The Report points out that, under the constitution and international human rights conventions, parents and guardians are presumed to be best placed to ensure that the rights of children are implemented in practice, especially in the case of very young children. As children mature towards adulthood, their capacity to exercise their rights must be recognised…

This gradual maturing is also recognised in the law, which sometimes sets down definitive age thresholds for specific matters (especially in the criminal law) and sometimes sets down rules based on tests of maturity and understanding (for example, in assessing whether a child or young person’s views should be taken into account in child care or adoption proceedings). The Commission has taken this into account in the Report.

The report recommends that 16- and 17-year-olds are “presumed to have full capacity” to consent to or refuse medical treatment. It says that young people aged under 16 should not be presumed to have the same competence, but could in exceptional circumstances – and depending on their maturity and the involvement of guardians – give their consent or refusal.

The Law Reform Commission also recommends that any instance where someone under 18 requires life-sustaining treatment, “an application to the High Court would be required to decide on the validity of any such refusal”.

A further recommendation advises that the Mental Health Act of 2001 should be amended to make provisions for those under 18 so that a Mental Health Tribunal, rather than a District Court, could review admission and treatment.

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