A legal analysis of the minor’s right to consent and refuse medical treatment under the Health Act

Abstract

By virtue of Act No. VII of 2017 the Maltese Parliament amended the Health Act granting minors who attained 16 years of age the right to consent and refuse medical attention, care and treatment on their own without parental intervention, if the medical practitioner considers the minor to have sufficient maturity and understanding to consent or refuse. Albeit, clarifying the minor’s position in the context of medical treatment decisions the extent to which minors are capable of upholding such right is not clear. This paper aims to analyse this new law with the main research question being to what extent does the law recognize a minor’s competence to consent and refuse medical treatment? The focus is on the issue of competence and an analysis of the required level of competency is made for both consent and refusal cases. It results that despite that minors are given such right, minors who have not attained the age of 16 are unable to consent or refuse medical treatment on their own. By using a combination of both the status rule approach and the understanding approach, the law excludes the application of this right to those under 16 who may have the sufficient maturity and understanding to consent or refuse but due to the fact that they have not reached the age of 16 and thereby not having legal capacity, they cannot avail themselves of such right. Furthermore, an analysis of whether the requirements of competence are the same for consent and refusal of medical treatment is made. In the ambit of refusal of medical treatment, the law states that the minor’s decision may be overridden if the treatment is urgently required in the minor’s best interest, establishing a requirement which is not equally applicable to consent. Therefore, not only must the minor satisfy the requirements of age and maturity but his decision to refuse medical treatment will only be upheld if the treatment is not urgently required and in his best interest highlighting that a higher level of competency seems to be required in cases of refusal of medical treatment.