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Dying to be responsible: adolescence, autonomy and responsibility

Published online by Cambridge University Press:  02 January 2018

Barry Lyons
Barry Lyons*
Affiliation:
Centre for Social Ethics & Policy, School of Law, University of Manchester
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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.

Type
Research Article
Information
Legal Studies , Volume 30 , Issue 2 , June 2010 , pp. 257 - 278
Copyright
Copyright © Society of Legal Scholars 2010

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References

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, K ‘Responsibility and rights: children and their parents in the youth justice system’ (2007) 21 Int J Law Policy Family 190 CrossRefGoogle Scholar; Royal College of Psychiatrists (RCP) Child Defendants (Occasional paper OP56) (London: RCPsych, 2006).

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

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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.

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141 Home Office, above n 126, para 93.

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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.

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