Law and policy can do more to address adolescence in early adulthood

Legal adulthood starts at 18, but adolescence is now known to extend into the early 20s. Adolescence can impact on decision making, affecting impulsivity, risk appreciation and self-control. Some areas of law and policy are starting to respond by enhancing services for both older children and younger adults alike. But change is slow and patchy.

Adolescence

Adolescence is commonly understood as the transition to adulthood, which in law occurs on a person’s 18th birthday. But recent research makes clear that adolescence does not in fact end at 18. The neurological disruption associated with adolescence continues until around the age of 24.

Until that time adolescence can impact on decision making. Waves of ‘synaptic pruning’ result in neuronal plasticity. Arain et al have argued that this

increases an individual’s vulnerability toward making improper decisions because the brain’s region-specific neurocircuitry remains under construction, thus making it difficult to think critically and rationally before making complex decision.

Adolescence does not affect people in a uniform way. Not only are the biological effects variable, but environmental, social and experiential factors also impact on decision making. Consequently, most 22-year-olds will be significantly better equipped to make autonomous medical treatment decision than most 12-year-olds.

Nonetheless, there are calls in health policy to recognise adolescence up to 24 and to respond to the particular needs and potential vulnerabilities of adolescents. Sawyer et al argue that

an expanded and more inclusive definition of adolescence is essential for developmentally appropriate framing of laws, social policies, and service systems.

Criminal sentencing

The law too has started to adapt. The US Supreme Court in Roper v Simmons recognised the impact of the developing adolescent brain on the culpability of a 17-year-old when reviewing the constitutionality of the death penalty for a juvenile defendant.

Efforts have been made to extend this reasoning to adult adolescents. Lord Chief Justice Burnett of Maldon argued in The Times that sentencing of young adults should reflect their maturity. Subsequently, in the cases of Clarke and Daniels, the developmental maturity of adult adolescents was taken into account.

Medical treatment cases

A quite different approach is evident in medical treatment cases. A bright line exists between adults and children. It is a well-established legal principle that an adult over 18 who satisfies the legal test for mental capacity can make a voluntary decision to refuse life sustaining treatment, even if others consider the decision unwise or irrational. The same does not apply to minors with mental capacity. Nolan LJ said in Re W:

[T]he present state of the law is that an individual who has reached the age of 18 is free to do with his life what he wishes, but it is the duty of the court to ensure so far as it can that children survive to attain that age.

In a Canadian decision AC v Manitoba involving a minor’s refusal of medical treatment, the court said:

Many experts suggest that due to the very nature of adolescence, adolescent choices may be particularly prone to defects in decisional autonomy.

Adolescence is recognised as a reason for overruling minors under 18 who would otherwise suffer serious harm due to their decision to refuse treatment. But adolescence is largely ignored in relation to young adults.

In a recent Modern Law Review article, we have argued that the effects of adolescence on the decision making of some young adults is neglected in law and practice. We suggest that, where there are good reasons to doubt whether a decision is autonomous and particularly where an individual stands to die as a result of their decision, a change of emphasis is warranted.

What should be done?

Policy reforms are already starting to focus on ensuring that the specific needs of adolescents are met. In the health arena this may mean making more use of specialist adolescent services and responding to patients’ individual needs.

The law should seek to uphold liberal ideals so that autonomous decisions are respected and responsibility is taken for them. The criminal sentencing model shows that psychological tools are capable of more accurately assessing the impact of adolescence on autonomous decision making. Once impediments to decision making are identified, efforts should focus on facilitating an autonomous decision. If the person is found to lack capacity then the Mental Capacity Act 2005 will apply.

We propose that efforts are made to better accommodate recent understandings of adolescence within the current legal frameworks on childhood and adulthood. Young adults should not be infantilised. Rather, the manner in which information is provided and decisions are made should adapt depending on the impacts of adolescence.

Where there is evidence that a person’s developmental maturity impacts on the autonomous nature of a harmful decision, this should be a relevant factor both in relation to whether capacity is assessed and the assessment itself.

Change is needed across law, policy and practice acknowledging the growing body of scientific and social evidence that adolescence impacts on decision making by young adults as well as older children. Criminal law has led the way. Medical law should follow.

The full article is published open access at: E Cave & H Cave, Skeleton Keys to Hospital Doors: Adolescent Adults who Refuse Life-Sustaining Medical Treatment (2023) Modern Law Review. http://doi.org/10.1111/1468-2230.12798

Hannah Cave is an Honorary Assistant Psychologist, Cumbria, Northumberland, Tyne and Wear NHS FT and BSc Psychology student, University of Newcastle-upon-Tyne.

Emma Cave is a Professor of Health Law in Durham Law School. She is a member of Durham Centre for Ethics and Law