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Dying to be responsible: adolescence, autonomy and responsibility

  • Barry Lyons (a1)
Abstract

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice state that there should be ‘a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities’. If healthcare autonomy, or the ‘right to be responsible for making decisions about our own medical welfare’, is accepted as one of these social rights then, in England, the age gap between criminal responsibility and healthcare right is considerable. It has been suggested that this age difference might be explained in terms of the attribution of responsibility; in essence that there is a difference in the timing and nature of the responsibility being ascribed. The aim of this paper is to examine the concept of responsibility, particularly as it relates to adolescent decisions concerning death; the refusal of life-saving treatment, on the one hand, and the commission of homicidal acts, on the other. It would appear that there is considerable overlap in the types of responsibility alluded to in both situations, most particularly in the notions of capacity responsibility and prospective responsibility. If this is so, then having a wide gap between the two ages of responsibility would seem to lack a secure jurisprudential basis.

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1 Re E (A Minor) (Medical Treatment)[1993] 1 FLR 386 (Re E). Although the adolescent in question was referred to as ‘A’ throughout the case, in this paper I shall refer to him as E to avoid confusion.

2 V v UK (2000) 30 EHRR 121 at 134.

3 Cited in R v Secretary of State for the Home Department ex parte Venables and Thompson[1998] AC 407 at 439.

4 Children and Young Persons Act 1963, s 16.

5 The relationship between responsibility and autonomy is a complex one and has been the subject of recent philosophical debate; see J Fischer ‘Recent work on moral responsibility’ (1999) 110 Ethics 93 at 98. In this paper I will assume equivalence between the notions of ‘responsibility for self-determination’ and ‘autonomy’ as applied to healthcare decision making. This is a position I will discuss later.

6 Nolan LJ has argued that the courts would not countenance the refusal of lifesaving treatment by an adolescent. See Re W (A Minor) (Medical Treatment)[1992] 4 All ER 627 at 647 (Re W). It is clear from of Johnson J in Re P that the judgement in Re W defines the law on this subject: Re P (Medical Treatment: Best Interests)[2004] 2 FLR 1117 (Re P). However, the Mental Capacity Act 2005 indicates that there should be a presumption that all adults (aged 16 or over) have full legal capacity to make decisions for themselves. How the courts might interpret this in future cases that concern adolescent refusal of treatment is uncertain.

7 See, eg, M Brazier and C Bridge ‘Coercion or caring: analysing adolescent autonomy’ (1996) 16 LS 84; Hollingsworth, KResponsibility and rights: children and their parents in the youth justice system’ (2007) 21 Int J Law Policy Family 190 ; Royal College of Psychiatrists (RCP) Child Defendants (Occasional paper OP56) (London: RCPsych, 2006).

8 Hollingsworth, ibid, at 195 (original emphasis).

9 However, as these points were not central to her paper it is unsurprising that Hollingsworth did not fully discuss them.

10 H Keating ‘The “responsibility” of children in the criminal law’ (2007) 19 CFLQ 183.

11 Archard, D Children: Rights and Childhood (New York: Routledge, 2004) p 127.

12 Keating, above n 10, at 184.

13 United Nations Standard Minimum Rules for the Administration of Juvenile Justice. The rules, generally referred to as the Beijing Rules, seek to promote juvenile welfare and minimise intervention by state juvenile justice systems and thus consequent harm. The rules are not binding in international law; states are invited, but not required, to adopt them.

14 One objection to holding children criminally responsible is they do not deliberate sufficiently to be regarded as fully responsible. However, as Tadros points out the ‘objection…that we are not as responsible for unreflective actions as we are for reflective actions…is untrue’. See Tadros, VInsanity and the capacity for criminal responsibility’ (2001) 5 ELR 325 at 327. There is, however, a considerable body of literature that supports the view that Mary should be less responsible by virtue of immaturity. For an overview, see ES Scott and Grisso, TThe evolution of adolescence: a developmental perspective on juvenile justice reform’ (1997) 88 J Crim Law Crim 137.

15 Corlett, J Responsibility and Punishment (Dordrecht: Kluwer Academic Publishers, 2004) pp 1012.

16 Official commentary on Art 4(1).

17 Lucas, JR Responsibility (Oxford: Clarendon Press, 1993) p 5.

18 Kneale, W The responsibility of criminals’ in Acton, HB (ed) The Philosophy of Punishment (London: Macmillan, 1969) p 175.

19 Ibid, p 176.

20 Hart, Hla Punishment and Responsibility (Oxford: Clarendon Press, 1968) p 212.

21 Ibid, pp 212–214.

22 Corlett, above n 15, pp 12–14.

23 Ibid, p 15.

24 Hart, above n 20, p 227.

25 Cane, P Responsibility in Law and Morality (Oxford: Hart Publishing, 2002) p 32.

26 Ibid.

27 Watson, G Two faces of responsibility’ (1996) 24 Phil Topics 227 at 229.

28 Gauthier, CC The virtue of moral responsibility and the obligations of patients’ (2005) 30 J Med Phil 153.

29 Cane, above n 25, p 35.

30 Bok, H Freedom and Responsibility (Princeton, NJ: Princeton University Press, 1998) p 124.

31 Criminal Justice and Immigration Act 2008, s 9 (2): ‘Purposes etc. of sentencing: offenders under 18: The court must have regard to – (a) the principal aim of the youth justice system (which is to prevent offending (or re-offending) by persons aged under 18’.

32 Fischer, above n 5.

33 Tauber, AI Sick autonomy’ (2003) 46 Perspect Biol Med 484 at 485.

34 Ibid, at 490.

35 Re T (Adult: Refusal of Treatment)[1993] Fam 95 as per Lord Donaldson at 113 (Re T). However, some judicial decisions appear less than enthusiastic in unequivocally embracing the principle. See Coggon, J Varied and principled understandings of autonomy in English law: justifiable inconsistency or blinkered moralism?’ (2007) 15 Health Care Anal 235 ; also Brazier, M and Cave, E Medicine, Patients and the Law (London: Penguin, 4th edn, 2007) pp 99121.

36 R (Burke) v General Medical Council[2005] EWCA Civ 1003, [2006] QB 273.

37 Dworkin, R. Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (New York: Alfred A Knopf, 1993) cited by Lord Steyn in Chester v Afshar[2005] 1 AC 134 at 144.

38 Sidaway v Board of Governors of the Bethlehem Royal Hospital and the Maudsley Hospital[1985] AC 871 at 882.

39 See, eg, Department of Health The NHS Constitution for England (London: TSO, 2009) s 2(b); also Spruijt-Metz, D Adolescence, Affect and Health (Hove: Psychology Press, 1999) pp 3135.

40 Home Office Report of the Committee on the Age of Majority Cmnd 3342 (London: HMSO, 1967) at para 518 (emphasis added). This body was referred to as the Latey Committee after its chairperson, throughout parliamentary and Lord's debates.

41 [1986] AC 112 (Gillick) as per Parker LJ at 124 (emphasis added).

42 Wallace, RJ Responsibility and the Moral Sentiments (Cambridge, MA: Harvard University Press, 1998) p 53.

43 Tauber, above n 33, at 490.

44 Hansard HC Deb, 20 November 1967, vol 754 cols 956–1028 at col 963.

45 Hansard HL Deb, 26 November 1968, vol 297, cols 1132–1198 at 1149.

46 Home Office, above n 40, para 480 (emphasis added).

47 Ibid.

48 Quoted in Jackson, E Medical Law (Oxford: Oxford University Press, 2006) p 245.

49 Section 44(7).

50 At 186 per Lord Scarman.

51 Ibid, at 189.

52 Harris, J Consent and end of life decisions’ (2003) 29 J Med Ethics 10 at 12.

53 Freeman, M Rethinking Gillick’ (2005) 13 Int J Child Rights 201 at 202.

54 Ian Kennedy, quoted in Jackson, above n 48.

55 Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11 CA (Re R).

56 See, eg, Bainham, AThe judge and the competent minor’ (1992) 108 LQR 194 ; Brazier and Bridge, above n 7; Douglas, GThe retreat from Gillick’ (1992) 55 MLR 569 ; Eekelaar, JWhite coats or flak jackets/ doctors, children and the courts – again’ (1993) 109 LQR 182 ; Murphy, JW(h)ither adolescent autonomy?’ (1992) 14 J Soc Welfare Fam Law 529 ; Freeman, above n 53.

57 Brazier and Cave, above n 35, p 405.

58 Eekelaar, above n 56.

59 Re W, above n 6, at 639.

60 Ibid, at 634–635.

61 Freeman, above n 53, at 203.

62 Re W, above n 6, at 634.

63 Freeman, above n 53, at 203.

64 Re R, above n 55, at 23.

65 Quoted in Jackson, above n 48.

66 Re W, above n 6, at 638.

67 Jackson, above n 48.

68 Perry, TD Moral Reasoning and Truth: An Essay in Philosophy and Jurisprudence (London: Clarendon Press, 1976) pp 8586.

69 See n 56.

70 Re W, above n 6; Re C (Detention: Medical Treatment)[1997] 2 FLR 180 (Re C). The life and death nature of Re W is debatable as she was not refusing all treatment. I have included the case because of its central nature in defining the limits of adolescent autonomy. In Re C there was testimony from a psychiatrist that C was ‘putting herself at risk of collapse and sudden death within 3 to 7 days’; at 187.

71 Re S (A Minor) (Refusal of Medical Treatment)[1995] 1 FCR 604 (Re S); Re L (Medical Treatment: Gillick Competency)[1998] 2 FLR 810 (Re L); Re E, above n 1; Re P, above n 6.

72 Re M (A Child: Refusal of Medical Treatment)[1999] 2 FCR 577 (Re M).

73 Re W, above n 6, at 640. Dr G testified: ‘basing my view on discussion with [W]…I am convinced that she has a good intelligence, and understands what is proposed as treatment’.

74 Ibid, at 627. Thorpe J held that, although W had sufficient understanding to make an informed decision, he had inherent jurisdiction to make the order sought. See also Re M, above n 72, at 581.

75 Re E, above n 1, at 391: ‘I find that A is a boy of sufficient intelligence to be able to take decisions about his own well-being…Impressed though I was by his obvious intelligence…’.

76 Re W, above n 6, per Balcombe LJ at 640. Re C, above n 70, at 195–196.

77 Mental Health Act 1983, s 63 allows for the treatment, including tube feeding, of patients with anorexia against their will. See, eg, Re KB (Adult) (Mental Patient: Medical Treatment)[1994] 19 BMLR 144 per Ewbank J at 146. Referred to with approval by Hoffmann LJ in B v Croydon HA[1995] Fam 133 at 139.

78 Grubb, A Commentary on Re L’ (1999) 7 Med Law Rev 58.

79 Re E, above n 1, at 391. See also Re S, above n 71, at 615.

80 Brazier and Cave, above n 35, p 405.

81 Grubb, above n 78, at 61.

82 Re L, above n 71 at 811.

83 Ibid, at 813.

84 Brazier and Cave, above n 35, pp 99–120.

85 Re E, above n 1, at 393. See also Re S, above n 71, at 613.

86 Faden, R, Beauchamp, T and King, N A History and Theory of Informed Consent (Oxford: Oxford University Press, 1986) p 339.

87 Re T, above n 35, per Lord Donaldson MR at 113–114.

88 Re E, above n 1, at 393.

89 Re W, above n 6, per Lord Donaldson at 637.

90 Re E, above n 1, at 393.

91 Re S, above n 71, at 614.

92 Re W, above n 6, per Balcombe LJ at 642. See also Re P, above n 6, and Re C, above n 70, at 189.

93 Re E, above n 1, at 393.

94 Re W, above n 6, per Nolan LJ at 647.

95 Golden, M Children and Childhood in Classical Athens (Baltimore: Johns Hopkins University Press, 1993) p 5.

96 Ibid, p 40.

97 ‘Capable of evil’: Rawson, B Children and Childhood in Roman Italy (Oxford: Oxford University Press, 2003) pp 7475. A more modern judicial translation of the term doli incapax is ‘incapacity of committing an offence’. See R v JTB[2009] UKHL 20, [2009] 1 AC 1310 per Lord Phillips at [8].

98 Gorham, D The “Maiden Tribute of Modern Babylon” re-examined: child prostitution and the idea of childhood in late-Victorian England’ (1978) 21 Victorian Studies 353 at 362.

99 Kuefler, MS “a Wryed Existence”: attitudes toward children in Anglo-Saxon England’ (1991) 24 J Soc Hist 823 at 826.

100 Sanders, WB (ed) Juvenile Offenders for a Thousand Years: Selected Readings from Anglo-Saxon Times to 1900 (Chapel Hill, NC: University of North Carolina Press, 1970) pp 34.

101 James, TE The age of majority’ (1960) 4 Am J Legal Hist 22 at 25.

102 Ibid, at 26–30.

103 Ibid, at 23.

104 Pinchbeck, I The state and the child in sixteenth-century England – Ii’ (1957) 8 Brit J Sociol 59.

105 Blackstone, W Commentaries on the Laws of England: In Four Books. Vol. IV: Of Public Wrongs (London: T Cadell and W Davies, 1809) pp 2223.

106 Malice supplies age.

107 Fionda, J Youth and justice’ in Fionda, J (ed) Legal Concepts of Childhood (Oxford: Hart Publishing, 2001) pp 7882.

108 Ibid, pp 82–83.

109 Fortin, J Children's Rights and the Developing Law (Cambridge: Cambridge University Press, 2005) p 547.

110 Arthur, R Young offenders: children in need of protection’ (2004) 26 Law & Policy 309 at 317.

111 Haydon, D and Scraton, P “Condemn a little more, understand a little less”: the political context and rights implications of the domestic and European rulings in the Venables-Thompson case’ (2000) 27 J Law Society 416 at 420.

112 C v DPP[1994] 3 WLR 888 at 890–891.

113 H Keating ‘Reckless children?’ (2007) Crim L R 546 at 550.

114 Ibid.

115 Walker, N The end of an old song?’ (1999) 149 NLJ 64.

116 R v JTB, above n 97.

117 The cases referred to were JBH and JH (Minors) v O'Connell[1981] Crim LR 632; IPH v Chief Constable of South Wales[1987] Crim LR 42.

118 C v DPP, above n 112, at 894.

119 R v JTB, above n 97, at [20].

120 E Stokes ‘Abolishing the presumption of doli incapax: reflections on the death of a doctrine’ in Pickford, J (ed) Youth Justice: Theory and Practice (London: Cavendish Publishing, 2000) p 51.

121 Law Commission Murder, Manslaughter and Infanticide (London: TSO, 2006) s 1.13.

122 ‘Subject to three exceptions, the crime of murder is committed where a person of sound mind and discretion unlawfully kills any reasonable creature in being and under the Queen's peace with intent to kill or cause grievous bodily harm'. The exceptions relate to the defences of provocation, diminished responsibility and action in pursuance of a suicide pact: Richardson, J (ed) Archbold: Criminal Pleading, Evidence and Practice (London: Sweet & Maxwell, 2000) p 1622.

123 Hart, Hla The Concept of Law (Oxford: Clarendon Press, 1961) pp 7988.

124 Home Office Consultation: Tackling Youth Justice (London, HMSO, 1997) para 7.

125 Ibid, para 8.

126 Home Office Report of the Committee on Children and Young Persons Cmnd 1191 (London: HMSO, 1960) para 81. The Ingleby Committee was set up to review the powers and proceedings of juvenile courts and the provisions for preventing cruelty to and neglect of children. See also Keating, above n 10, at 189–190.

127 See, eg, Royal College of Psychiatrists, above n 7.

128 Home Office No More Excuses – A New Approach to Tackling Youth Crime in England and Wales Cm 3809 (London: HMSO, 1997) p 2. Ministry of Justice Murder, Manslaughter and Infanticide: Proposals for Reform of the Law. Summary of Responses and Government Position (London: TSO, 2009) para 100.

129 Home Office, ibid.

130 If Mary had only intended to harm V seriously rather than kill him, then it is possible that she could be found guilty of murder without having an understanding of the nature of death. The Homicide Act 1957 required malice aforethought to be established in order for a murder conviction to be secured. This entailed that the defendant had to be at least aware that the harm done was life-threatening. Subsequent court judgments held that a jury could find a defendant guilty of murder even if he or she only intended to cause serious harm. See Law Commission, above n 121, s 1.26–1.29. For the purposes of this analysis I have assumed that Mary deliberately killed V. In the Bulger murder trial, Venables and Thompson, who were 10 when committing their offence, were deemed by the trial judge, Morland J, to have carried out the abduction of Jamie Bulger for the purpose of killing him, n 3 above. If two young boys can have an understanding of what it means to take a life away, then it seems implausible that a 15-year-old adolescent of normal intelligence would not have a similar, and in all probability, more mature concept of death.

131 Cane, above n 25, p 72.

132 Section 2.

133 M'Naghten's Case[1843] 10 Cl & Fin 200 at 210.

134 Law Commission, above n 121, s 5.125–5.137. Ministry of Justice, above n 128, paras 99–103.

135 Law Commision A New Homicide Act for England and Wales? Consultation Paper No 177 (London: TSO, 2005) paras 1.72–1.78; R v Howe[1987] 2 WLR 568; R v Gotts[1992] 2 AC 412.

136 Law Commission, ibid, paras 1.78–1.79.

137 Buchanan, A and Brock, DW Deciding for others’ (1986) 64 Supplement 2 Milbank Q 17 at 24–26.

138 The UK countries have ‘the lowest age of criminal responsibility in western Europe’: House of Lords Debates 20 November 2007, 731 as per Baroness Miller at 734. See also Palme, LNo age of innocence: justice for children’ in The Progress of Nations (New York: UNICEF, 1997).

139 In Belgium, Art 388 of the Civil Code, amended by Art 1 of the Law of 19 January 1990 reduced the civil majority to 18 years. A minor lacks the legal capacity to contract with a physician or a hospital. The age of criminal responsibility is also 18. See Fortin, above n 109, p 550.

140 See, eg, Committee on the Rights of the Child Consideration of Reports Submitted by States Parties Under Article 44 of the Convention. Concluding Observations: United Kingdom of Great Britain and Northern Ireland (Geneva: United Nations, 2008) para 78; The Children's Society Children in Trouble with the Law (London: TCS, 2008); R Allen From Punishment to Problem Solving: A New Approach to Children in Trouble (London: Centre for Crime and Justice Studies, 2006).

141 Home Office, above n 126, para 93.

142 Children and Young Persons Act 1969.

143 Home Office The Child, the Family and the Young Offender Cmnd 2742 (London: HMSO, 1965).

144 See Ministry of Justice, above n 128, paras 99–103. See also, eg, the House of Lords debate on 20 November 2007, available at http://www.parliament.the-stationery-office.com/pa/ld200708/ldhansrd/text/71120-0001.htm, and comments made by both the Home Office and the Shadow Home Affairs Minister in response to calls for an increase in the age of criminal responsibility: BBC News ‘Criminal age “should be raised”’ (22 September 2006), available at http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk/5369274.stm.

145 Grubb, above n 78, at 60, suggests that the courts contrive to obfuscate and distort the legal concept of competence, to make ‘it very difficult if not impossible for a teenager ever to be legally competent’.

146 Crime and Disorder Act 1998, s 34.

147 See Bandalli, S Abolition of the presumption of doli incapax and the criminalisation of children’ (1998) 37 Howard J Crim Just 114 , and Stokes, above n 120.

148 Fairchild v Glenhaven Funeral Services Ltd[2003] 1 AC 32 at 68.

149 Cane, above n 25, at 20.

150 Law Commission, above n 135, para 6.75. The government response to Law Commission proposals to increase the age of criminal responsibility stated that the defence of diminished responsibility should not be available to children over the age of 10 unless they are suffering from a recognised medical condition which would make him or her ‘substantially less able to understand the nature of their conduct, form a rational judgment or exercise self-control’: Ministry of Justice, above n 128, para 100.

151 Law Commission, ibid, para 6.74

152 Ibid, para 6.75.

153 Honoré, T Responsibility and Fault (Oxford: Hart Publishing, 1999) p 10.

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