In Johnston v Wellesley Hospital et al, a physician treated a 20-year-old male to remove acne scars. The age of majority at the time was 21, but the physician obtained consent for the procedure from the then 20-year-old patient. The treatment, called the ‘slush’ treatment, resulted in excessive blistering, scarring and sensitivity to the patient. The patient sued the physician for negligence, but he also argued that he was incapable of giving informed consent because he was under the age of majority.
The court had to consider whether consent was required from the minor’s parents or whether the minor was capable at law of giving informed consent to the procedure. This issue was vital because, if the minor was found incapable of giving consent and no consent was obtained from the parents, the physician would have committed battery and liability would automatically follow, without the patient having to prove negligence. The court held that the minor was legally capable of consenting and found that the age of majority was of no significance. The court referred to the minor’s ‘obvious intelligence’ and his being ‘fully capable of understanding the possible consequences of a medical or surgical procedure as an adult’.
In C(JS) v Wren, a 16-year-old pregnant girl gave her consent to a physician for an abortion and received approval for it by the then required statutory committee. The minor’s parents objected to the procedure and applied for an injunction against the physician. The judge refused the injunction on the grounds that the minor was capable of giving and, in fact, did give her informed consent. The parents appealed and argued that informed consent involved the capacity to understand not just the medical issues, but also the ethical issues of abortion and obligation by children to parents. The Court of Appeal disagreed with the parents and noted that courts will accord greater deference to the minor’s decision as he or she grows and develops. The court found that it could not conclude that because the minor and her parents had differing opinions, the minor lacked sufficient intelligence and understanding to make her own decision. The court also noted that the parents conceded the minor was a “normal intelligent 16-year-old” and thus had capacity to give informed consent to the abortion. zithromax