214 Equal opportunity: will children over 12 be allowed to give their own consent to COVID-19 vaccination?

AimsThe law simultaneously upholds the liberties afforded to and the responsibilities required of the citizens within its jurisdiction. Many such liberties are acquiesced upon turning eighteen, the boundary before which an individual is considered a minor, and after, an adult. For many trivial liberties – drinking, gambling, smoking – the boundary is largely undisputed, frivolous in fact. But in matters grossly more important, like the right to autonomy over one’s own body and to make one’s own health choices, the boundary becomes anything but frivolous.In September 2021 the UK Chief Medical Officers recommended all children 12-15 years old be offered the Pfizer-BioNTech vaccine against SARS-CoV-2 (covid-19). Previous controversies regarding children’s consenting rights in UK Law have consequently been thrown to the fore. Such rights for children in the 12-15 age group are encapsulated through the common law, the judicial interpretation and application of which has previously been labelled too paternalistic, contributing nothing towards fostering children’s rights of participation in healthcare. In the light of the covid-19 pandemic, the debates surrounding how far children should be allowed, encouraged and supported by the medical profession and, ultimately, the Courts to make autonomous consenting decisions regarding medical treatment – without the need for parental corroboration - have been reignited.The objective of this paper is to critically evaluate whether the current law is too paternalistic and to speculate how the law might, and should, respond to consenting issues arising from the new covid-19 vaccination policy for children.MethodsIt achieves this by undertaking a systematic review of the statute and case law within the realm of consent to medical treatment – most pertinently, Gillick - and a comprehensive critical analysis of the current literature. Examples of seemingly excessive paternalism within UK case law are scrutinised against the accusation that they are overly controlling and offer nothing in the way of support for children’s participation. An analysis of the consenting situation regarding the covid-19 vaccination policy for children and its growing commentary follows, before speculations regarding how the law might approach such controversies based on previous precedent can be made.ResultsThrough this structure, the paper finds that the law has never intended to confer an unwavering adolescent right to autonomy but rather offers greater protection of their confidentiality, and that the boundaries constructed by the Courts safeguard against preservation of childhood autonomy at the expense of basic or developmental interests. It does acknowledge that the Court has, in cases, weakened its own precedent by undermining the concept of competence, and offers resolution by suggesting that the law ceases to consider autonomy as an all-or-nothing concept and instead encourages participation – not authoritative self-determination – consistent not only with a child’s chronological age but also their maturity, experience, and emotional intelligence.ConclusionWhere covid-19 vaccination is concerned, the test of Gillick competence must be applied. Healthcare professionals must be confident in assessing this competence and the law should empower them to respect and encourage children’s decision making through informed conversations, free from pressure or judgement.