By Emma Cave
Emma Cave is a Professor of Healthcare Law in Durham Law School and Durham CELLS (Centre for Ethics and Law in the Life Sciences), and Fellow of the Wolfson Research Institute for Health and Wellbeing.
It’s Mother’s Day on 19 March and I thought this might be a good time to share my recent experience of writing a journal article with my daughter, Hannah.
I’m from Durham Law School and Hannah is in her third year of her BSc Psychology degree at Newcastle University. She is currently taking a placement year as an Honorary Assistant Psychologist in an NHS Trust. We teamed up to write an interdisciplinary article published last month in the Modern Law Review.
There are many mother-daughter writing success stories such as Jodi Picoult’s young adult books with her daughter Samantha van Leer. Though our article won’t reach the dizzy heights of the New York Times Bestseller list, this of all my research outputs makes me most proud.
The idea for the article arose when we were on a family walk in North Yorkshire. We were discussing what happens in law when a child under 18 refuses life sustaining medical treatment.
If adults have mental capacity to refuse treatment, their refusal will be respected, even if it will result in their death. Not so adolescent children. They can be overruled to protect what others conceive to be their best interests.
I have found this problematic and one of my previous articles suggested ways in which the legal test for capacity might be adapted to reflect autonomous decisions more accurately, so that capacious decisions might then be respected.
Hannah and I discussed a 2021 case that confirmed that even if a 17-year-old has mental capacity to refuse treatment, they are not considered autonomous in the same way as a mature adult, and so can be overruled.
We dropped back from the rest of the family as Hannah articulated interesting insights from a psychological perspective, many of which I had not previously considered. One suggested that if a 17-year-old is not autonomous in the same way as a mature adult, them neither is a 19-year-old given what psychologists have revealed about changes in the limbic system in the brain, which control responses and behaviours. This research indicates that we’ve been wrong in the past to assume that adolescence ends at the age of 18.
So began an exploration of the issues. Hannah independently researched the psychological aspects: the evidence of adolescence in adulthood and the tools by which the impacts can be measured.
I researched the legal issues: the cases involving children under 18, the reasoning upon which they are overruled, changes in the interpretation of the Mental Capacity Act over time and theories as to how we might best protect the rights of those who can make autonomous decisions to do so, whilst also protecting from harm those who lack those capabilities.
Having both drafted relevant sections, I put the first draft together. We swapped drafts by email and met in Durham or when Hannah came home at the weekend. Because the focus was on new legal interpretations, we submitted the article to a legal journal.
Our first submission was rejected but we gained some valuable feedback. The second attempt was accepted subject to some additional welcome suggestions from the reviewers. It was published in the Modern Law Review earlier this month.
At first blush the paper seems very controversial. It seems to suggest that young adults cannot be trusted to make important decisions. It seems to suggest that they should be treated like children.
This would be inaccurate. We do not recommend any changes in the law. An 18-year-old is an adult and at that point cannot be overruled if they have mental capacity to refuse life sustaining medical treatment, however irrational others might find that decision.
We do, however, suggest that medical law has been insufficiently cognisant of the impacts of adolescence on the decision making of some young adults in the past. We recommend that in future there should be a more accurate assessment of the effects of adolescence on decision making when mental capacity is assessed and set out how that might be achieved.
This might lead to some young adults being supported to make a capacious decision. It might occasionally result in someone being found to lack capacity, who might in the past have been considered to have capacity. It might better align the test for incapacity and the inability of a person to make an autonomous decision.
The reasoning might also be extended to child adolescents to help work out when their decisions are autonomous, which is a relevant (albeit not determinative) factor when the courts are considering whether they should be overruled.
When Hannah was twelve, she came home from school very excited because she’d found out her chemistry teacher had written a book on chemistry. After joining in the applause, I couldn’t resist pointing out my name on a couple of dusty spines on the bookshelf. The response kept hubris at bay.
It’s arguably an evolutionary requirement for children to go through a phase of thinking their parent is a bit of an idiot. I’m not sure we’re totally out of the woods, but consider this article a good sign. Happy Mother’s Day!
This blog was originally published on the Durham University Staff Blog
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