PHILOSOPHICAL AND ETHICAL ISSUES

Children's rights: a decade of dispute

Jacqueline Lowden BA MSc RGN RSCN RNT DipHV
Senior Lecturer, School of Health and Social Care, University of Teesside, Middlesborough, UK

Submitted for publication 24 November 2000

Accepted for publication 8 October 2001

Correspondence: LOWDEN J. (2002) Journal of Advanced Nursing 37(1), 100±107

Jacqueline Lowden,
School of Health and Social Care,
University of Teesside,
Middlesborough TSI 3BA,
UK.
E-mail: j.lowden@tees.ac.uk
Children's rights: a decade of dispute
Aim. This paper attempts to raise issues surrounding children's rights against a
backdrop of ethical principles and their subsequent interpretation and application in
practice.
Method. Key words have been used to search a selection of electronic databases and
a range of `grey' literature has been reviewed.
Background. Over a decade ago the United Nations (1989) Convention on the
Rights of the Child was rati®ed, with the exception of two member states (UNICEF
2000). The Human Rights Act (Department of Health 1998) became law in October
2000 in the United Kingdom (UK). Despite a decade of recommendations, guidelines
and legislation, children's rights, particularly consent to health care, remain
complex and inconsistent. As we move into a new era of human rights involving all
members of society, it is timely for nurses in the UK to re¯ect on the challenges
created in attempting to interpret the philosophy of such legislation because such
complexity surrounds the interpretation of human rights for many other vulnerable
clients within health care.
Findings. The interpretation of children's rights continues to be in¯uenced by the
evolution of the meanings of childhood. Adults view children's rights from multiple
perspectives of best interest, which are determined by their beliefs about children's
ability to understand and consent to health care and treatment. An ability and right
to consent appears not to be balanced by the right to withhold consent. Inconsistency
and ambiguity persist in the law and its interpretation. Adults need to develop a
more pragmatic approach to children's rights. This requires better understanding of
children and their experiences of health care.
Conclusion. Until adults develop a more pragmatic ideology in relation to
children's rights then a true respect for children's autonomy will not be achieved.
Consent will therefore remain an adult and legal prerogative.

Keywords: children's rights, consent, autonomy, competence, United Kingdom,

health care, treatment, ethics, law

exception of the United States of America (USA) and

Introduction
The Human Rights Act (Department of Health 1998) became
law in the United Kingdom (UK) in October 2000. It
incorporates into domestic law the European Convention
on Human Rights, to which the UK has been committed since
1951. Over a decade ago the United Nations (1989) Con-
vention on the Rights of the Child was rati®ed [with the
Somalia] and it is perhaps timely for nurses to re¯ect on the
challenges created in attempting to enact the philosophy of
such recommendations, guidelines and legislation.
This paper examines the many issues that compound the
complexity surrounding children's rights in the UK, with
particular reference to consent and child health care, because
such complexity surrounds the interpretation of human rights

100 Ó 2002 Blackwell Science Ltd

Philosophical and ethical issues
for many other vulnerable clients within health care. The
literature regarding children's rights, consent to health care
and treatment will be reviewed. The synergy of these two
issues is proposed, as the approach to children's rights and
the social and historical ideologies which underpin this are
fundamental to, and in¯uential in, children ultimately achiev-
ing self-determination.
The approaches adopted to children's rights and adult
beliefs about this concept in the UK have their origins in the
evolution of the child and childhood. It is suggested that this
history continues to in¯uence attitudes to children in society
and contemporary health care practice.
In England, the Children Act (Department of Health 1989)
brought radical changes and has been the basis for the largest
reform of children's law. The key concept of the Act is that
the child's welfare is the paramount consideration. However
Lansdowne (1996) points out that the phrases used in the
legislation, such as `best interest and welfare', are invariably
de®ned by adults. In this article I intend to discuss the
multiple paradigms of `best interest' in relation to children's
rights and self determination and to argue that this is not a
static concept but will change overtime, not only with
chronological age but also with children's experience.
Children's nurses are faced with diverse situations and
challenges in addressing the changes that children's rights and
historically changing ideas of childhood have created. Mod-
ern children's nursing covers many activities that take place
in a variety of settings. In addition, increasing possibilities in
children's care created by nursing, medical knowledge and
technology have in turn created many ethical dilemmas
(Campbell & Glasper 1995).
Background
Beauchamp and Childress (1989) describe a framework for
moral reasoning that includes a hierarchical structure begin-
ning with moral judgements described as level one. Level two
describes values, level three principles and level four ethical
theories. Richardson and Webber (1995) suggest using a set
of principles of ethics rather than an ethical theory, which
may be dif®cult to apply. Therefore two ethical principles
will be used in facilitating this discussion, namely those of
justice as fairness and respect for autonomy.
The development of children's rights will be discussed
within the context of changing ideas of childhood and
children's status. The relationship between autonomy and
competence will be examined and considered in relation to
the legal and ethical criteria of competence in children, and
the factors which may in¯uence this. Rights have been
de®ned as justi®ed claims that require action or non-action
Ó 2002 Blackwell Science Ltd, Journal of Advanced Nursing, 37(1), 100±107
Children's rights: a decade of dispute
from others, that is rights require positive or negative duties
to others (Richardson & Webber 1995). Both positive and
negative health care rights can be found in health care issues,
and a right to health care is a positive right grounded in the
principle of justice. The right not to be operated upon
without informed consent is a negative right based on the
principle of respect for autonomy (Beauchamp & Childress
1989).
The rights of children and young people received world
wide attention in 1989 when the United Nations (UN)
Assembly adopted the Convention on the Rights of the Child
(Richardson & Webber 1995). This was a strong indicator of
the increased formal societal emphasis being given to parti-
cipation and autonomy or self determination rights for
children, in balance with protection and nurturance rights
(Hart 1991).
Justice is concerned with fairness and we try to ensure
justice or fairness for everyone through the legal system and
related structures (Campbell & Glasper 1995).
Fairness can be de®ned by the degree to which someone's
rights are respected and acted upon. Rights de®ne what we
can fairly expect in relationships with others and in day to
day living (Campbell & Glasper 1995).
Children's rights and childhood
The basic rights of children have been codi®ed in the United
Nations Convention on the Rights of the Child (Newell
1993). Archard (1993) suggests that this is an area of ethics in
which thinking has evolved greatly in recent years. De®ni-
tions of children's rights and debates around them are reliant
on two concepts, one of childhood and one of rights.
The concept of childhood and child are relatively recent
achievements in the UK (Hart 1991). Prior to the 16th
century most children were considered to be small adults
once they were over the age of six and subsequently were not
viewed separately from adults (Aries 1962, Plumb 1972).
Hart (1991) describes much of the early UK history of
childhood as a `grim period', with parents exercising unlim-
ited power over their children (Pappas 1983). Between the
16th and 18th century changes occurred in the nature of the
property status accorded children. Initially children were
viewed as chattels, valued for contributing to family work
and supporting parents in their old age (Hart 1991). Stone
(1977) notes the harsh upbringing of children in this period of
time and how this in turn produced distrustful and cruel
adults prone to hostility.
By the 18th century children in the UK began to be cared
for as valuable and vulnerable property and the 19th century
marked greater separation from adults, as a special and
101
J. Lowden
vulnerable class in need of protection (Stone 1977). This
fostered a child-saving era to assure the health and welfare of
children. During the 20th century the child was valued as a
potential person, child orientated family life emerged and
external forces began to in¯uence family life (Hart 1991).
The latter part of the 20th century saw the emergence of
children as having status as a person with the advancement of
child protection rights in public attention and service delivery
(Hart 1991).
Rogers and Wrightsman (1978) propose that the emerging
status of children as human beings and not objects of concern
has been of great signi®cance. It has provided justi®cation for
rights to protection and signi®cant to the focus of discussion
rights to self-determination. Child bearing and child rearing
practices have in¯uenced this process along with economics,
work and educational changes. The educational setting has
the potential to nurture the person status of children by
developing competencies for the child's future as an adult
through the use of a balanced, broad-based, holistic curricu-
lum as recommended in article 29 of the United Nations
Convention on the Rights of the Child. As self-determination
assumes greater importance for children, the educational
setting should provide opportunity both to acquire and
practise the skills required, enabling the child to become self
determining, and educating a future generation of parents.
An increase in awareness of human rights has subsequently
increased the degree to which children are considered to be
persons (Melton 1983).
Respect for autonomy
Autonomy is de®ned as the ability of a person to make self
determining choices, and is derived from a Greek word
meaning self governing. It involves independence and decis-
ion making (Edwards 1996).
In health care ethics the principle of respect for autonomy
means that people should be respected and that they have
the capacity to reason and make decisions which concern
their own future (Edwards 1996). It has been suggested that
the principle of respect for autonomy is the most funda-
mental of moral principles (Harris 1985, Benjamin & Curtis
1986, Downie & Calman 1987). If an autonomous decision
is overruled then health care professionals must be able to
provide justi®cation in support of their actions, the onus of
justi®cation lying with those who seek to rule the auton-
omous decisions of others (Edwards 1996). Autonomy is
seen to be both desirable and psychologically healthy and
interventions by health care professionals should aim to
enhance the capacity of clients to be autonomous (Seed-
house 1988).
102 Ó 2002 Blackwell Science Ltd, Journal of Advanced Nursing, 37(1), 100±107
There may, however, be situations in nursing where it is
not possible to foster autonomy or develop the autonomy of
clients. One such situation may be that of informed consent
in young children. However, if autonomy is assessed on the
basis of having the capacity to reason and make decisions
which concern the future, then there is evidence that young
children can do this if given time, relevant explanations and
the opportunity to do so (Alderson 1990, Alderson &
Montgomery 1996a, 1996b, Edwards 1996).
Respect for the dignity and autonomy of the individual in a
health care setting can be seen in the need to obtain informed
consent (Campbell & Glasper 1995), which requires that the
child is competent (Alderson 1993, Alderson & Montgomery
1996a, 1996b). However many texts in nursing do not
attempt to distinguish the concepts of autonomy and com-
petence (Benjamin & Curtis 1986, Seedhouse 1988, Melia
1989). Beauchamp and Childress (1989) do distinguish
between the two concepts and suggest that, while autonomy
refers to a general capacity of an individual, competence
refers to an ability to perform speci®c tasks.
The relevance of this distinction in nursing practice is that
the competence of the client is crucial (Edwards 1996).
Therefore to give informed consent to undergo treatment or
care, the client must be competent to perform the task of
making the decision (Edwards 1996).
Thus the concepts of autonomy and competence, though
related, are distinct (Edwards 1996). Potentially a young
child could be autonomous but, in order to be competent to
consent to treatment or care, they will require relevant
information and opportunity for explanations, as well as time
to ask questions and hence to discuss and develop relevant
knowledge.
It is the adult's perception of relevant knowledge that may
inhibit competence being developed in the child if informa-
tion is withheld in their `best interest', or conveyed in terms
which are unfamiliar or overly complex. Parents may need
to be encouraged to have the con®dence to permit their
children to be involved in decisions and not to be over pro-
tective or over fearful for them (Alderson & Montgomery
1996a, 1996b). Failure to hear what young people have to
say can result from adults' unwillingness to listen, rather
than children's inability to express their views. In a study by
Hill and Tisdall (1997), many more children thought that
they could and should be more fully involved in decisions
affecting them than actually were. The unjust inconsistency
in involvement of children poses urgent questions, as at
present some doctors involve young children in complex
serious decisions while others exclude arguably mature
young adults (Montgomery 1992). Children's rights may
be approached in different ways, and the National
Philosophical and ethical issues
Children's Bureau (NCB) (1992) discuss three main approa-
ches: protectionist, liberationist and pragmatist (National
Children's Bureau 1992).
NCB approaches to children's rights
The protectionist approach
The protectionist approach sees the role of adults as guard-
ians and defenders of children. This relates to the previous
discussion of childhood and the child-saving era, re¯ecting
the attitude that children should be protected from them-
selves for their own good (Fulton 1996). This view of
children's rights in relation to autonomy and speci®cally to
consent to treatment by children assumes that young children
are incompetent.
An obligation of rati®cation of the UN Convention is that
member states must report to the UN within two years on the
progress made with implementation. The ®rst UK report
re¯ects protectionist ideology supporting the view that young
children are unable to make decisions (Fulton 1996). The
emphasis appears to be on parents as consumers of health
care, which marginalizes and objecti®es children (Fulton
1996). This does not re¯ect the ideology of British law,
re¯ected in the Children Act (Department of Health 1989),
which clearly identi®es that children are not objects of
concern. The ethos of the Act is to listen to the wishes and
feelings of the child and to respect children's individuality
(Mitchels & Prince 1992).
The liberationist approach
The liberationist approach views children as an oppressed
minority group, deprived of civil rights (Franklin 1986,
Hill & Tisdall 1997) who are repressed and subservient to
the authoritarianism within institutions such as health
services (Fulton 1996). This approach identi®es the greater
abilities children are believed to have and that go
unrecognized in British culture (Fulton 1996, Hill &
Tisdall 1997).
Children believe the messages they receive about them-
selves and thus the lack of recognition becomes a self ful®lling
prophecy (Fulton 1996). Liberationists think that children
should be empowered by not treating them like children.
Although this may seem a bizarre statement, research has
shown that even infants can display sophisticated reasoning
powers and understanding of complex human relationships
(Dunn 1988, Alderson 2000a).
Criticism has been leveled at liberationist thinking as it fails
to recognize empirical child development knowledge and
evidence that children do require protection. However
research with seriously ill young children shows that they
Ó 2002 Blackwell Science Ltd, Journal of Advanced Nursing, 37(1), 100±107
Children's rights: a decade of dispute
can show mature understanding and coping in discussing
complex and painful knowledge (Bluebond-Langer 1978,
Alderson & Montgomery 1996a, 1996b). This evidence
supports the proposal that experience is far more salient than
age in determining children's understanding (Alderson &
Montgomery 1996a, 1996b).
The pragmatist approach
The pragmatist approach to children's rights is a balance
between protectionism and liberationist ideas, and recognizes
the protection needed for children while allowing ¯exibility
for the child's emerging knowledge (Fulton 1996). Maintain-
ing a balance between protection and self determination
rights may help to overcome con¯icts, confusion and prob-
lems between the diverse approaches to viewing children's
rights (Hart 1991). A positive ideology regarding children
is important because it values them for what they are, and
can become. In addition to what they can do for themselves
and others, a positive approach may be the essential missing
ingredient necessary to the children's rights movement
(Melton 1983, Gil 1987, Hart & Brassard 1987). A positive
ideology could serve as the primary standards framework
against which to judge child treatments, with active involve-
ment of children in establishing their needs and rights (Hart
1991), thus facilitating opportunities to become autonomous.
Consent and the law in the UK
It is important to evaluate the legal situation with regard to
children and informed consent as it represents dif®culties and
challenges for children, their families and health care profes-
sionals. It appears from the literature that the UK law
regarding consent by children has recently taken several
retrograde steps, regressing to a protectionist approach in
viewing children's right to make informed consent (Deeprose
1992, Fulton 1996). Under section eight of the 1969 Family
Law Reform Act, 16 and 17-year-olds were treated as if they
were of full age and would not require parents or guardians
agreement to treatment and health care (Deeprose 1992).
In 1986 the House of Lords ruling on the Gillick case,
which disputed the rights of young people to consent to
contraceptive advice and treatment without their parents
knowledge, gave similar rights to children under 16. It stated
that young people were allowed to make decisions about
medical treatment, as long as they were mature enough to
understand the implications of the treatment and were
competent to make such a decision (Gillick v West Norfolk
& Wisbech Area Health Authority 1986).
The Children Act (Department of Health 1989) recognized
that competent children in local authority care have the right
103
J. Lowden
to refuse medical or psychiatric treatment. The United
Nations Convention on the Rights of the Child (article 12)
also acknowledged children's right to freedom of expression
and of conscience (Newell 1993). Collectively interpreted,
this gives children many rights to make decisions for them-
selves and have their opinions listened to about medical
treatment, religious beliefs and a range of other issues
(Alderson 1992). However several legal cases have challenged
children's rights in these areas (Deeprose 1992). In 1991 the
Court of Appeal ruled that `R', aged almost 16, could not
refuse mental health treatment and could be forced to have
medication (Alderson 2000b). Dyer (1999) cites the case of
`M' a 16-year-old girl forced against her will to have a heart
transplant.
Perhaps the most potentially damaging is the case of a
16-year-old girl known as `J' who suffered from anorexia and
had her refusal of consent to treatment overturned by the
Court of Appeal, despite being deemed competent by the
court (Deeprose 1992). The Appeal Court ruling on `J' has
created potential confusion for all those who work with
children, including health care professionals. All of the cases
cited re¯ect protectionist adult attitudes to children's rights.
Thus, even when the criteria of competence to make informed
health care decisions have been established, the notion of a
child's right to exercise control over their own destiny is
negated (Deeprose 1992).
Although Gillick v West Norfolk & Wisbech Area Health
Authority (1986) was seen as a landmark decision in support
of children's rights it has been interpreted in different ways by
others. Montgomery (1988) views it as a transfer of legal
power away from parents to children but Bainham (1988)
argues that a more appropriate interpretation is that, within
health care, the power was given not to the child but to the
doctor. Most signi®cantly, the retreat from the Gillick
commitment concerns the right to consent or veto treatment
or care (Alderson & Montgomery 1996a, 1996b), and
demonstrates how weak and fragile the autonomy rights of
young people are, as they can be easily overridden (Alderson
& Montgomery 1996a, 1996b).
Even where young people are competent to consent to
health care, their refusal of care does not prevent parents and
the courts giving effective consent on their behalf. A doctor
needs only one valid consent to make treatment lawful and
this effectively means that young people have the right to
consent to treatment but not to refuse it (Montgomery 1992).
Although this may appear ridiculous, it seems that it is not
incoherent as a legal doctrine and is widely accepted by the
judiciary (Montgomery 1993). The paternalistic `best inter-
est' attitudes re¯ected by the protectionist standpoint on
children's rights is further illustration of the weakness of
104 Ó 2002 Blackwell Science Ltd, Journal of Advanced Nursing, 37(1), 100±107
children and young people's rights to autonomy in health
care and treatment.
It appears that current UK law and its interpretation
concerning the rights of children to consent to treatment and
care supports medical and judicial authority. Competence
confers autonomy by enabling young people to consent to
treatment. However, if they refuse treatment the doctor can
rely on parents or the courts for authorization. Judges are
prepared to override the views of the young person but not to
force doctors to treat patients against their clinical judge-
ment. Deveruex et al. (1993) argue that the retreat from
Gillick v West Norfolk & Wisbech Area Health Authority
(1986), as described by Alderson and Montgomery (1996a,
1996b), contradicts the spirit of the Children Act (Depart-
ment of Health 1989). This in turn sets a high penalty for
refusing treatment or care as opposed to consenting to it
(Deveruex et al. 1993).
A right to give consent must also mean a right to refuse;
otherwise consent could be seen as no more than the right to
agree with the medical practitioner. Being found rational for
the purpose of consent seems to be dictated on the basis of
accepting the doctor's proposal (Roth et al. 1977, Dickenson
1991). Two debatable points emerge from this: ®rst, that the
doctor is correct in their opinion of what is `best' for the
patient and second, that treatment without consent will help
the patient (Deveruex et al. 1993).
Consent must be real, that is obtained freely, without
pressure and with understanding of the implications of what
is being consented to (McHale et al. 1998). Written consent
is used in health care settings and takes the format of a
speci®c consent form. Nurses are familiar with consent forms
given to patients to sign prior to surgery or speci®c investi-
gations and procedures (McHale et al. 1998). However while
a consent form may provide evidence that the patient has
consented it does not in itself make the consent legally valid.
Lansdowne (1996) identi®es how the majority of parents
attending a hospital parent group claimed to have no
recollection of having signed a consent form. Byrne et al.
(1988) found that 40% of patients who had signed a consent
form had little idea of what they had signed for. If informed
consent is not obtained then the document is legally of no
value (McHale et al. 1998).
The Department of Health (DOH) (1989) advises that
children are deemed competent to consent to treatment or
care if they demonstrate enough maturity to understand the
signi®cance of the ethical, social and emotional aspects of
their situation (Montgomery 1993). Formally signing the
consent form is a step beyond consenting in principle. Several
young patients in Alderson's (1992) study said they wished to
consent to surgery, but not to sign the form thus signifying
Philosophical and ethical issues
the desire to be involved and informed but with support from
adults.
A consent form can be assumed to demonstrate blanket
consent to the whole package of care from admission to
discharge, and this can prevent staff from seeing that in the
child's eyes each step is a separate procedure (Alderson &
Montgomery 1996a, 1996b). Scarce time and resources,
practical problems such as lack of time or of a quiet place to
talk have been cited as reasons why time is not spent seeking
children's consent (Alderson & Montgomery 1996a,
1996b).
Maintaining a balance
The criteria for competence for children to consent present
many problems and dif®culties. Children can be informed and
competent given time and experience (Alderson & Mont-
gomery 1996a, 1996b), but this can be dependent on the
motivation and communication skills of the adults involved
and their beliefs about children's rights (Fulton 1996).
Motivation may vary according to adults' ideology about
children and their rights and whether they perceive them-
selves as guardians to children who require protection. Some
experts who assess children's competence assume that all
children are incompetent, and that referral to them would be
as unjust as sending people to a court in which the jury
assumes that all defendants are guilty (Alderson & Mont-
gomery 1996a, 1996b). Fulton (1996) proposes that the way
forward would be for nurses to develop a precautionary
principle that children are presumed competent unless an
adult can demonstrate otherwise. This challenges protection-
ist attitudes and requires liberationists to prove their case in
practice. However if this practice were to be established then
it would require support from a legal framework and
philosophy which, as previously discussed in the `J' case,
does not overturn the autonomous choices made by compet-
ent children (Montgomery 1992). Arguably, a process which
allows for refusal or acceptance of treatment must also be
visible.
Making autonomous choices does not necessarily mean
deciding in lonely isolation without support, but may
encompass having a greater or lesser share in deciding or
choosing to defer to others (Alderson & Montgomery 1996a,
1996b). The essential would appear to be the inclusion of the
child, with their wishes and feelings being sought and
acknowledged in the decision making process (Rose 1997),
which is the very spirit of the Children Act (Department of
Health 1989). Thus adults have responsibilities not rights,
and the child has choice but this is not unrestricted, and they
have to choose wisely (Hoggett 1996). This demonstrates a
Ó 2002 Blackwell Science Ltd, Journal of Advanced Nursing, 37(1), 100±107
Children's rights: a decade of dispute
more pragmatic approach to facilitating children's choices,
rather than dictating them (Hoggett 1996).
Alderson's (1993) study demonstrated that respect for
autonomy can mean supporting people as far as they want to
go, and trying not to impose on children through over
involvement or exclusion. The aim is participation and not
necessarily full autonomy, if that is what the child chooses,
and nurses can be in¯uential in supporting children in the
process of consent (Clayton 2000). This offers a more
pragmatic approach to respecting the child's right to self
determination but allows children to enjoy the luxury of
childhood, that is, to defer responsibility to adults when they
feel they cannot or do not want to make decisions or to be
responsible for choices. If an enthusiastic liberationist stance
was to be adopted there would be a danger of children being
denied this luxury.
Competence is not dictated by chronological age, and
increasingly the ideas of psychologists that childhood can be
characterized by a series of stages has been challenged (Hill
& Tisdall 1997, Alderson 2000a). The classical frameworks
of the psycho-social and cognitive development of children
are separated by particular age spans and sharp transitions,
with no acknowledgement of how children's experiences can
alter or affect these transitions (See for example, Piaget 1952,
Erikson 1963). Children with any type of health problem to
overcome grow up quickly, and greater credit should be given
to their advanced maturity (Alderson & Montgomery 1996a,
1996b).
Children's experience can determine their understanding
more than age, and children with chronic conditions who
have repeated treatment have understanding that does not
consist of abstract thought but of illness, disability and
treatment experience (Alderson & Montgomery 1996a,
1996b). From this experience young children understand
the value of life and can weigh up alternatives and express
consistent values based on a ®rm sense of identity, thus
demonstrating the moral and rationale basis of wise decision
making. Therefore to test competence in the abstract without
reference to the circumstances may be misleading (O'Neill
1984).
These issues are exempli®ed by the moving account of a
mother whose daughter, was born with biliary atresia (Irwin
1996) and subsequently died at the age of six. The child
demonstrated a knowledge and ability in managing her
treatment and condition superior to her chronological age,
yet she could not write her name or count past 10. The
account of this child's life and death identi®es the need to
view and assess situations from the child's perspective and to
identify what is in the child's best interest. It also highlights
the importance of learning to listen to children's views in
105
J. Lowden
whatever way they are capable of articulating them, but also
of being able to reason at a child's level with adult knowledge
(Irwin 1996).
Laws that allow treatment to be forced on non-competent
children appear to assume that they have no understanding
worth considering. However very young children do reason
and can perceive unexplained treatment as assault and as far
more damaging than the disease it is intended to treat
(Alderson & Montgomery 1996a, 1996b). This opens a
credibility gap between the child's perception of harm and the
adult's intention of bene®t. The problem is also illustrated in
a quantitative study by Southall et al. (1993), which exam-
ined the frequency and effects of invasive procedures in
children receiving intensive care. The study concluded that
children having prolonged intensive care are more likely to
die, survive with serious neurological problems or behave as
if they have suffered non-accidental injury (Southall et al.
1993). This concurs with Alderson and Montgomery's
(1996a, 1996b) ®ndings regarding children's perceptions of
unexplained treatment as assault. It was also apparent from
Southall et al.'s study that children received inadequate
analgesia and sedation, further demonstrating a lack of
understanding of children's needs.
There appear to be many reasons why informed consent is
not sought from children, but perhaps the greatest obstacles
arise from adult prejudices about their abilities and the
protectionist view of the rights they can or do have. At
present childhood belongs to children least of all (Hill &
Tisdall 1997) and its study remains largely a study of adults'
attitudes to and practices with children. Children are not
human becomings they are human beings at birth and they
have particular views about their own status. Children are
people in their own right and as such should be recognized as
having rights (Qvortrup et al. 1994).
Conclusion
Both the Children Act (Department of Health 1989) and the
United Nations Convention on the Rights of the Child (1989)
stressed the importance of listening to children and taking
their views seriously, however doctors and nurses are uncer-
tain whether they should respect children's wishes or whether
they risk breaking the law by doing so. Case law in the UK
focuses on the end point of decision making, that is consent,
instead of the process of sharing information through the
stages of investigation, diagnosis and considering treatment
options. This amounts to an all or nothing approach, which
confers full legal status on competent people but does not
attend to participation when patients are partly involved and
can in¯uence rather than make decisions.
106 Ó 2002 Blackwell Science Ltd, Journal of Advanced Nursing, 37(1), 100±107
Effective training for health care professionals would
address common attitudes and prejudices about children's
rights and thus would promote greater respect for the
autonomy of children. As a consequence, better judgements
could be made regarding children's competence to consent to
treatment and care. However this challenges adults' need to
feel in control, and requires the acquisition of practical skills
in listening to children.
Within the UK, law that amounts to defensive practice has
been detrimental to the best interests of the child; however
professional anxiety about litigation may allow this situation
to continue. The law should provide a clear framework
comprehensible to professionals, parents and young people,
and should be ¯exible enough to allow scope for professional
judgements. The focus of responsibility would be on adults to
demonstrate the child to be incompetent, rather than the child
to pass tests of competence which many adults might fail.
It appears that in the UK the historical evolution of
childhood continues to in¯uence children's rights. In turn,
adult beliefs about children's rights in¯uence children's
opportunities for self determination. Until adults develop a
more pragmatic ideology regarding children's rights, then a
true respect for children's autonomy will not be achieved and
consent will remain an adult and legal prerogative. Children
will not be facilitated to develop competence and thus the
process of `best interests' will continue to be de®ned from a
protectionist adult perspective.
References
Alderson P. (1990) Choosing for Children Parents' Consent to
Surgery. Oxford University Press.
Alderson P. (1992) Everyday and medical life choices: decision
making among eight to ®fteen-year-old school students. Child:
Care, Health and Development 18, 81±85.
Alderson P. (1993) Children's Consent to Surgery. Open University
Press, Buckingham.
Alderson P. (2000a) Young Children's Rights Exploring Beliefs,
Principles and Practice. Jessica Kingsley Publications.
Alderson P. (2000b) The rise and fall of children's consent to surgery.
Paediatric Nursing 12, 6±8.
Alderson P. & Montgomery J. (1996a) Health Care Choices Making
decisions with children. Institute for Public Policy Research.
Alderson P. & Montgomery J. (1996b) What about me? Health
Service Journal 11, 22±24.
Archard D. (1993) Children: Rights and Childhood. Routledge,
London.
Aries P. (1962) Centuries of Childhood: A Social History of Family
Life. Knopf, New York.
Bainham A. (1988) Children, Parents and the State. Oxford Univer-
sity Press.
Beauchamp T. & Childress J.F. (1989) Principles of Biomedical
Ethics, 4th edn. Oxford University Press.
Philosophical and ethical issues
Benjamin M. & Curtis J. (1986) Ethics in Nursing. Oxford University
Press.
Bluebond-Langer M. (1978) The Private Worlds of Dying Children.
Princeton University Press, Princeton.
Byrne D., Napier A. & Cushieri A. (1988) How informed is signed
consent? British Medical Journal 296, 839±841.
Campbell S. & Glasper E.A. (1995) Whaley and Wong's Children's
Nursing. Mosby.
Clayton M. (2000) Consent in children: legal and ethical issues.
Journal of Child Health 4, 78±81.
Deeprose M. (1992) Children's consent is a law unto itself. BMA
News Review September, 19±20.
Department of Health (1989) The Children Act. HMSO, London.
Department of Health (1998) The Human Rights Act. HMSO,
London.
Deveruex J.A., Jones D.P.H. & Dickenson D.L. (1993) Can children
withhold consent to treatment? British Medical Journal 306, 1459±
1461.
Dickenson D. (1991) Moral Luck in Medical Ethics. Gower Alder-
shot.
Downie R.S. & Calman K.C. (1987) Healthy Respect. Faber and
Faber, London.
Dunn J. (1988) The Beginnings of Social Understanding. Blackwell,
Oxford.
Dyer (1999) English teenager given heart transplant against her will.
British Medical Journal 319, 209.
Edwards D. (1996) Nursing Ethics. A Principle-Based Approach.
Press Limited.
Erikson E. (1963) Childhood and Society. Norton, New York.
Franklin B. (1986) The Rights of Children. Blackwell, Oxford, Basil.
Fulton Y. (1996) Children's' rights and the role of the nurse.
Paediatric Nursing 8, 29±31.
Gil D. (1987) Maltreatment as a Function of the Structure of Social
Systems. Pergamon, New York.
Gillick v West Norfolk & Wisbech Area Health Authority (1986)
Appeal Cases 112±207. Cited in Deveruex J.A., Jones D.P.H. &
Dickenson D.L. (1993) Can children withhold consent to treat-
ment? British Medical Journal 306, 1459±1461.
Harris J. (1985) The Value of Life. Routledge, London.
Hart S.N. (1991) From property to person status historical perspec-
tive on children's rights. American Psychologist 46, 53±59.
Hart S. & Brassard M. (1987) A major threat to children's mental
health: Psychological Maltreatment. American Psychologist 42,
160±165.
Hill M. & Tisdall K. (1997) Children and Society. Longman, London
and New York.
Hoggett B. (1996) Mental Health Law, 4th edn. Sweet and Maxwell,
London.
Irwin C. (1996) Samantha's wish. Nursing Times 4, 30±31.
Ó 2002 Blackwell Science Ltd, Journal of Advanced Nursing, 37(1), 100±107
Children's rights: a decade of dispute
Lansdowne R. (1996) Children in Hospital A Guide for Family and
Carers. Oxford University Press.
McHale J., Tingle J. & Peysner J. (1998) Law and Nursing.
Butterworth, Heinemann.
Melia K. (1989) Everyday Nursing Ethics. MacMillan, London.
Melton G. (1983) Toward `personhood' for adolescents: autonomy
and privacy as values in public policy. American Psychologist 38,
99±103.
Mitchels B. & Prince A. (1992) The Children Act and Medical
Practice. Jordan and Sons Limited.
Montgomery J. (1988) Children as property? Modern Law Review
51, 323±342.
Montgomery J. (1992) Parents and children in dispute: who has the
®nal word? Journal of Child Law April, 85±89.
Montgomery J. (1993) Consent to health care for children. Journal of
Child Law 5, 117±124.
National Children's Bureau (1992) Highlight No 113. An Introduc-
tion To Children's Rights. London.
Newell P. (1993) The UN Convention and Children's Rights in the
UK, 2nd edn. National Children's Bureau.
O'Neill O. (1984) Paternalism and partial autonomy. Journal of
Medical Ethics 10, 173±178.
Pappas M. (1983) Law and the Status of the Child. United Nations
Institute for Training and Research, New York.
Piaget J. (1952) The Origins of Intelligence in Children. International
University Press, New York.
Plumb J.H. (1972) The Light of History. Allen Lane, London.
Qvortrup J., Bardy M., Sgritta G. & Wintersberg H. (1994)
Childhood Matters. Avebury, Aldershot.
Richardson J. & Webber I. (1995) Ethical Issues in Child Health
Care. Mosby.
Rogers C.M. & Wrightsman L.S. (1978) Attitudes towards children's
rights. Journal of Social Issues 34, 59±68.
Rose P. (1997) Best intersets versus autonomy: a model for advocacy
in child health care. Journal of Child Health Care 1, 74±77.
Roth L.H., Meisel A. & Lidz C.W. (1977) Tests of competency to
consent to treatment. International Journal of Law and Psychiatry
134, 279±284.
Seedhouse D. (1988) Ethics the Heart of Health Care. John Wiley,
Chichester.
Southall D., Cronin C., Hartmann H., Harrison-Sewell C. & Samuels
M.P. (1993) Invasive procedures in children receiving intensive
care. British Medical Journal 306, 1512±1513.
Stone L. (1977) The Family, Sex and Marriage in England, 1500±
1800. Harper & Row, New York.
UNICEF (2000) http: //www.unicef.org/crc/convention.htm.
United Nations (1989) Convention on the Rights of the Child. United
Nations. Cited in Newell P (1993) The UN Convention and
Children's Rights in the UK, 2nd edn. National Children's Bureau.
107