TY - JOUR

T1 - Does the theoretical framework change the legal end result for mature minors refusing medical treatment or creating self-generated pornography?

AU - Fovargue, Sara

AU - Ost, Suzanne

N1 - The final, definitive version of this article has been published in the Journal, Medical Law International, 13 (1), 2013, © SAGE Publications Ltd, 2013 by SAGE Publications Ltd at the Medical Law International page: http://mli.sagepub.com/ on SAGE Journals Online: http://online.sagepub.com/

PY - 2013/3

Y1 - 2013/3

N2 - The status that is and should be afforded to decisions made by those under 18 has been much debated, particularly in the context of health care. Ideas of rights, autonomy and the concept of best interests have been explored, and there appears to be an underlying concern that if minors are recognised as ‘fully’ autonomous individuals with legally enforceable rights, then this would conflict with the best interests (welfare) principle as espoused in the Children Act 1989. Similar concerns are identifiable with regards to provisions designed to protect children from sexual exploitation, which are largely framed around protection rather than rights. Concepts of vulnerability and exploitation are predominant in this context, making it easier to perceive minors as being in need of protection rather than as individuals with autonomy deserving of respect. In this article, we consider some of the concerns raised and expose the tensions that surround the decision-making (cap)ability of mature minors (those aged 16 and 17), and the implications for these adolescents. We explore whether the dominant paradigms of best interests and protectionism limit English law’s recognition of mature minors’ autonomy in two situations; refusing treatment and creating self-generated pornography. We thus test whether a ‘liberal’ position of recognising mature minors’ autonomy can be maintained in the face of potential harm to them.

AB - The status that is and should be afforded to decisions made by those under 18 has been much debated, particularly in the context of health care. Ideas of rights, autonomy and the concept of best interests have been explored, and there appears to be an underlying concern that if minors are recognised as ‘fully’ autonomous individuals with legally enforceable rights, then this would conflict with the best interests (welfare) principle as espoused in the Children Act 1989. Similar concerns are identifiable with regards to provisions designed to protect children from sexual exploitation, which are largely framed around protection rather than rights. Concepts of vulnerability and exploitation are predominant in this context, making it easier to perceive minors as being in need of protection rather than as individuals with autonomy deserving of respect. In this article, we consider some of the concerns raised and expose the tensions that surround the decision-making (cap)ability of mature minors (those aged 16 and 17), and the implications for these adolescents. We explore whether the dominant paradigms of best interests and protectionism limit English law’s recognition of mature minors’ autonomy in two situations; refusing treatment and creating self-generated pornography. We thus test whether a ‘liberal’ position of recognising mature minors’ autonomy can be maintained in the face of potential harm to them.

KW - Mature minors

KW - refusal of treatment

KW - self-generated pornography

KW - autonomy

KW - rights

KW - best interests

KW - protection

KW - harm

U2 - 10.1177/0968533213486541

DO - 10.1177/0968533213486541

M3 - Journal article

VL - 13

SP - 6

EP - 31

JO - Medical Law International

JF - Medical Law International

SN - 2047-9441

IS - 1

ER -