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Emma Cave discusses how the sufficiency of young adults’ autonomy is judged in light of biological, social and psychological evidence that adolescence can continue into the mid 20s.

Image courtesy of interviewee. February 27, 2024

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This video video discusses a collaborative article written by a parent and their daughter, Hannah Cave, focusing on the disparity between adolescent law and scientific understanding, particularly regarding the refusal of life-sustaining medical treatment. The paper addresses how legal frameworks for medical consent do not adequately reflect the recent scientific advances in understanding adolescent development, which suggest that maturity continues into the early twenties.

Key points include:

1. **Disparity Between Law and Science**: Legal definitions of autonomy and consent usually consider individuals over 18 as adults capable of making medical decisions. However, recent research shows that many people under 24 may still experience adolescent effects that impact decision-making capacity.

2. **Legal Context**: The law allows adults to refuse medical treatments but doesn’t similarly grant those under 18 the right to refuse in all cases, reflecting a protective stance rooted in the best interests of the child.

3. **Influence of Research**: Neuroimaging studies have shown that brain development continues until around age 24, affecting self-control, emotions, and critical decision-making, which are crucial for making informed medical choices.

4. **Reforming Legal Frameworks**: The authors argue for a more nuanced understanding of maturity in legal settings, proposing that capacity assessments should account for the ongoing development of individuals aged 18-24.

5. **Criminal Law Insights**: The article notes that recent legal reforms in criminal justice consider psychological maturity for sentencing young adults, suggesting a parallel approach is feasible for medical treatment decisions.

6. **Conclusion**: The authors assert that the law must adapt to incorporate scientific findings about adolescent development to ensure that young adults are treated fairly and that their decisions regarding medical treatment are informed and respected. The collaborative effort highlights the personal connection and pride the author feels working alongside their daughter on this important topic.

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My co-author and I wrote this piece

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because there's an increasingly obvious gap

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between the law dealing with adolescents and the science.

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We tackled a mere subsection of that wider debate

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focusing on decisions to re

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to refuse life sustaining medical treatment.

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My co-author is also my daughter Hannah Cave.

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Hannah is a final year undergraduate student at Newcastle

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University and was on a placement that year,

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as an NHS Assistant psychologist in

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the Clinical Trials unit.

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And the article came about when we were discussing the law

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on adolescent treatment refusals on a family walk.

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Hannah had lots to say

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that I'd never previously considered about psychological

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developments tracking adolescence

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and its impact on decision making.

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When I started to explore the legal aspects further, I found

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that there were some areas of the law,

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particularly the criminal law on sentencing adolescents

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that are taking these scientific developments

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that Hannah was telling me about into consideration

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and changing the way that the law operates as a result.

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So we decided to think together about whether the law might

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do something similar in relation to medical treatment cases

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and if so, how that might be achieved.

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So what results is an interdisciplinary paper

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where we link the disciplines of psychology

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and law with a common goal in mind?

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So the law makes clear that adults with capacity can consent

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to medical treatment and they can also refuse it.

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And this helps to uphold their right to self-determination

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or autonomy, which is protected by Article eight

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of the European Convention on Human Rights.

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So if a doctor recommends medical treatment to me,

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I can refuse it, even if the doctor's sure

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that it would be really good for me, in fact,

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even if it would save my life 'cause it's my choice so far.

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This is, I think as most good expect it to be.

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The justification for it goes back to the work

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of John Stewart Mill, who's a famous utilitarian philosopher

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who said that limiting somebody's liberty is only

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justifiable to prevent harm to others.

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Now, mill did recognize

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that this principle could be adjusted

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if the individual isn't, as he termed it in the maturity

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of their faculties.

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What he meant by that was

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that some people should be protected from their own harmful

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decisions if those decisions aren't in fact autonomous.

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In England and Wales, the law conforms broadly

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with Mills harm principle and also with its exception.

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So we protect the right of those who can make decisions

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to do so, even if it'll cause them harm.

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And simultaneously we protect the interests of those

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who have some impediment to their autonomy from actions

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that will cause 'em serious harm.

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But rather than making a decision based on each individual's

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particularly particular vulnerabilities,

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the law sets down lines and rules that make it certain

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and make it easier to apply in practice.

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And in this context, they work according to a person's age.

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So above the age of 18, the person's an adult

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and they can refuse medical treatment

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unless either they lack capacity according to a test

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that's set down in law in the Mental Capacity Act,

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or they have a mental disorder,

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which allows treatment without their consent.

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And the Mental Health Act for 16

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and 17 year olds, they're not yet adults,

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but the Family Law Reform Act sets out that they can consent

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to treatment as if they're adults.

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And the Mental Capacity Act applies to them too.

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So they're assumed to have capacity to consent

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to treatment below that age.

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We have people below the age of 16

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and they have to show

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that they have something called gillick competence in order

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to consent to treatment.

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And if they don't have that,

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then a parent might consent for them on their behalf.

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The competence test, which was set out in the case

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of Gillick, looks for evidence of their maturity

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and their understanding.

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Now, here's a bit that people will, I think find surprising

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because the law allows those under the age of 18

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to consent to treatment.

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But contrary to the position for adults,

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it doesn't necessarily allow them to refuse treatment.

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So the law gives them a right to say yes,

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but not necessarily not in all cases a right to say no.

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And that might seem really odd

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because what good is it to have a right to say yes

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to something if you can't always say no to it?

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You know, if somebody offers me a toffee apple

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and I can agree to have it, but I can't turn it down

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and I'm stuck with that toffee apple.

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In the context of medical treatment, though,

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the best interest of the child is an important consideration

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and that's made clear in domestic legislation,

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but also internationally in the UN

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convention on the rights of the child.

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So the law recognizes that when a child consents,

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that's likely to comply with the child's best interest

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'cause otherwise a doctor wouldn't offer

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that treatment in the first place.

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Refusing treatment that the doctors recommend on the other

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hand could cause the child serious harm

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or it might lead to their death.

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So the law is children under the 18, the power to say yes

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and in doing so to keep parents outta the picture if that's

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what they want, but also it can overrule them if they say no

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and they're likely to suffer significant harm

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as a result of that decision.

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And this, this was explored in a book

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and the film fairly recently by Ian McEwen.

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It was called The Children Act.

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And for anybody who hasn't seen it,

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the plot follows a judge who's asked

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to decide whether a teenage Jehovah's witness boy

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with leukemia can refuse a life

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sustaining blood transfusion.

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The judge finds that the boy is intelligent,

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that he understands the decision,

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but still goes on to overrule that decision because

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otherwise the boy would die.

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And in the film, once he reaches the age of 18

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and can refuse as well as consent

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because now he's an adult, he suffers another health setback

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and this time his refusal is accepted

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and as a result he dies.

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So that's the legal context

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and it's the stuff of novels and films.

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You know, the the law draws a line between those

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who deserve a right to say no as well as yes to treatment

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because they're autonomous adults

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and those who don't have that right

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because they're not considered to be autonomous

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and that might be because they have a mental disorder

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because they lack mental capacity or

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because they're below the age of 18.

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So that's a rather long-winded way of getting to the crux

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of Hannah's and my article

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because the issue we identify is

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that scientific advances show us that the impediments

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to autonomy that John Stewart Mill says require this

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protective approach don't fit the lines currently

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drawn out in law.

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In particular, some people over the age

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of 18 will have impediments to their autonomy

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that operate in the same way as they do at 16 or 17.

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Uh, to any extent what I'm saying there is really obvious

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and really inevitable because there's no magic

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wand that's waived at 18.

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That means suddenly on that birthday you are able

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to become fully autonomous.

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The law, as we've seen often results on it relies rather on

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cutoff points to make the law certain and predictable.

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So in this context, the law chooses 18

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as the age when a person can refuse life,

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life-saving medical treatments in the

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person's best interest.

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The issue is that where previously that was a good point,

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as good as any, at least to draw the line,

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these scientific developments,

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which I hope will I'll go on to talk about in a minute.

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They suggest that we ought to be less binary in our approach

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and more attuned to the maturity

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of the individual young adults.

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And moreover, legal developments in other areas suggest

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that we can achieve this and we can do it.

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Well. Let's have a look at some

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of the scientific developments.

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They relate to the concept of adolescence,

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which is something that's been documented for a long time.

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Way back in 1904 G Stanley Hall referred to the storm

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and stress of the transition period between childhood

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and adulthood and recognized

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that it often results in mood disruptions and risky behavior

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and conflict with with parents.

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And this led to wide recognition over time of the impacts

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of adolescents up to the age of 18.

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But for a long time we assumed that the process

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of adolescence was complete

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by the time a person became an adult at 18.

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And that is the thing that has changed recently.

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Social influences, psychological factors

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and biological characteristics suggest that

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doesn't end at 18

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but carries on into the person's early twenties up to

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around the age of 24.

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Now, adolescence doesn't affect all adults in the same way,

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but there is potential for it to impact on decision making

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of some over 18 year olds.

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Just as we widely recognize that it does pre 18, given

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that adolescence is the prime reason why we stop under 18

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year olds saying no to treatment that's required to

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Keep them alive.

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The developing science suggests that we ought

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to rethink our approach to those beyond the age of 18

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until adolescent ends at around the age of 24.

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Now the scientific aspects are my co-authors remit,

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but I can set out the basics of them.

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Neuroimaging has shown that waves are synaptic pruning

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that characterize adolescents go on to the ages of 24.

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And during this phase, neuronal plasticity occurs.

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Now this is really beneficial to adolescents.

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It allows 'em to learn to adapt to a range

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of environments and situations.

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It allows them to to develop as independent individuals.

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But because their neuro circuitry is still in construction,

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it also impacts on the ability to think critically

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and rationally before making complex decisions.

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And in particular, it can impact on self-control, emotions,

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risk-taking and decision-making.

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And these are the very aspects of decision making

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that are crucial to making important decisions about refusal

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of life sustaining treatment.

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Sociologically too, the independent, the stability,

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the self-reliance that comes

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with adult towards in high income countries at least has

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been delayed when we compare it with historical data.

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A high degree of attachment

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to parents can result in increased financial

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and emotional dependence

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and that can impact on behavioral autonomy.

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Now to be clear, adolescents isn't a reason

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to ignore somebody's decision,

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but it might provide a reason to explore their decision

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to try and ensure that a view that they're expressing is one

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that their young adult has given consideration to.

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Our contention is

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that this isn't always happening at the moment under the

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current system that the binary of childhood,

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an adult called sets the age of 18

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as the age when someone can make an irrational

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and self-harm decision.

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And that can result in a failure

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to investigate whether those decisions are truly capacitors.

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So there's an excellent example of

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how the law can incorporate proper consideration

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of the impact of adolescents

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and that's in criminal sentencing.

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So, so an area totally different

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to medical treatment decisions in that area.

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The laws recently developed to use psychological indicators

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of maturity to work out the responsibility

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that should be assigned to adolescents.

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At first, this was applied purely in relation

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to under 18 year olds recognizing

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that adolescents was impacting on their culpability

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for acts that they may have done.

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More recently though, in line

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with the scientific developments that I just set out,

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the same idea has also been applied

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to young adults under the age of 24.

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This started with a UK justice committee report in 2019,

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which called for a distinct approach to young adults up

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to the age of 25 to quote.

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While the brain is still developing,

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a new screening tool was developed

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to help work out the maturity

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of each person's centers sentence, recognizing

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that it's gonna be different for each individual.

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'cause environmental factors are so important in this.

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Then the courts began to take maturity into consideration

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when sentencing these individuals.

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And what they do there is they recognize

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that this approach isn't taking away culpability,

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but rather it's requiring

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that the sentence reflects a psychological analysis

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of the person's maturity at the

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time they committed the crime.

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And that's important if we're gonna focus on rehabilitation

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rather than retribution.

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It concentrates on the person's ability

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to take responsibility for their actions at the time

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and also what's required to help 'em develop

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and to prevent them from re-offending in the future.

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So we've set out a potential injustice in relation

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to medical treatment decision making,

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and we've seen how a similar injustice, in another context,

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criminal justice sentencing is dealt with, by

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challenging this binary approach between childhood

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and adulthood and assessing the

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developmental maturity of young adults.

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So the next stage then is to think about how

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and whether we could achieve the same thing.

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In medical law, what we don't propose is a wholesaler

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abandonment of the concept of adulthood.

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We think we recognize that 18 is a useful proxy

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for maturity, but what we do argue is that we can,

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within the existing legal framework, be more sensitive

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to the maturity of patients.

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So that instead of simply allowing those who are 18

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and over to make very harmful decisions,

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we consider whether the decision is an autonomous one.

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And if it isn't, we try

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to facilitate an autonomous decision.

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This would involve a new way

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of interpreting the mental capacity Act 2005,

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which is the legislation that sets out the test

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for capacity and how it applies.

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There seem to be several aspects

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to the act which could bar this more nuanced approach.

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And in the article we set out how they might be overcome.

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I'm not gonna go through all the details of

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that, right now.

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But what is important to note is

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that in making these arguments, we are not arguing

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that adolescents can never make harmful decisions

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to refuse treatment.

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We do think though that by changing the approach

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to the application of the existing test for capacity,

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some adolescent adults will be shown

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to not be making autonomous decisions.

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And where that happens, efforts can then be made

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to facilitate the understanding that's needed

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to make an autonomous decision.

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We don't envisage huge numbers of adults being overruled

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as such, or at least we wouldn't envisage anybody being

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overruled without clear evidence of incapacity and, and,

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and evidence of what's in their best interests.

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But we do think

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that this assessment would herald a much more careful

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approach to informing and testing understanding of complex

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and life changing decisions to refuse medical treatment.

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So we conclude that the law is currently failing young

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adults and that more can be done within

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our current legal framework.

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To change this, it would involve much wider acceptance

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of the scientific evidence

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of adolescents into adults than we currently see.

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And it would involve making changes to the way

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that information is provided

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and the way that capacity is assessed in young adults.

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As a result, it isn't about infantalizing adults,

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it isn't about journalistically overriding

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decisions that they happen to be harmful.

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It's rather about improving our ability

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to link adolescents developmental immaturity

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and the support needed to make an autonomous decision.

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In medicine, this new knowledge, this new science

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about adolescents is really making its mark.

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There's much more focus now on transition to adult services,

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especially in mental health provision.

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And what we hope is that this article will will help

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to drive a similar change to mainstream, this idea

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of adolescence and help the law to keep up with the science

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and also add that on a personal level.

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The implication of this article is that I got to work

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with my daughter Hannah, and I'm prouder

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of this piece than anything else I've ever written.

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As a result of that.

Gaps Between Adolescent Law and Psychological Science

00:00:00 - My co-author and I wrote this piece because there's an increasingly obvious gap between the law dealing with adolescents and the science. We tackled a mere subsection of that wider debate focusing on decisions to re to refuse life sustaining medical treatment. My co-author is also my daughter Hannah Cave. Hannah is a final year undergraduate student at Newcastle University and was on a placement that year, as an NHS Assistant psychologist in the Clinical Trials unit.
00:00:34 - on adolescent treatment refusals on a family walk. Hannah had lots to say that I'd never previously considered about psychological developments tracking adolescence and its impact on decision making. When I started to explore the legal aspects further, I found that there were some areas of the law, particularly the criminal law on sentencing adolescents that are taking these scientific developments that Hannah was telling me about into consideration
00:01:06 - So we decided to think together about whether the law might do something similar in relation to medical treatment cases and if so, how that might be achieved. So what results is an interdisciplinary paper where we link the disciplines of psychology and law with a common goal in mind? So the law makes clear that adults with capacity can consent to medical treatment and they can also refuse it. And this helps to uphold their right to self-determination or autonomy, which is protected by Article eight
00:01:38 - So if a doctor recommends medical treatment to me, I can refuse it, even if the doctor's sure that it would be really good for me, in fact, even if it would save my life 'cause it's my choice so far. This is, I think as most good expect it to be. The justification for it goes back to the work of John Stewart Mill, who's a famous utilitarian philosopher who said that limiting somebody's liberty is only justifiable to prevent harm to others.
00:02:06 - that this principle could be adjusted if the individual isn't, as he termed it in the maturity of their faculties. What he meant by that was that some people should be protected from their own harmful decisions if those decisions aren't in fact autonomous. In England and Wales, the law conforms broadly with Mills harm principle and also with its exception. So we protect the right of those who can make decisions to do so, even if it'll cause them harm.
00:02:39 - who have some impediment to their autonomy from actions that will cause 'em serious harm. But rather than making a decision based on each individual's particularly particular vulnerabilities, the law sets down lines and rules that make it certain and make it easier to apply in practice. And in this context, they work according to a person's age. So above the age of 18, the person's an adult and they can refuse medical treatment

Understanding Consent and Refusal in Medical Treatment

00:03:10 - that's set down in law in the Mental Capacity Act, or they have a mental disorder, which allows treatment without their consent. And the Mental Health Act for 16 and 17 year olds, they're not yet adults, but the Family Law Reform Act sets out that they can consent to treatment as if they're adults. And the Mental Capacity Act applies to them too. So they're assumed to have capacity to consent to treatment below that age. We have people below the age of 16
00:03:40 - that they have something called gillick competence in order to consent to treatment. And if they don't have that, then a parent might consent for them on their behalf. The competence test, which was set out in the case of Gillick, looks for evidence of their maturity and their understanding. Now, here's a bit that people will, I think find surprising because the law allows those under the age of 18 to consent to treatment. But contrary to the position for adults, it doesn't necessarily allow them to refuse treatment. So the law gives them a right to say yes,
00:04:15 - And that might seem really odd because what good is it to have a right to say yes to something if you can't always say no to it? You know, if somebody offers me a toffee apple and I can agree to have it, but I can't turn it down and I'm stuck with that toffee apple. In the context of medical treatment, though, the best interest of the child is an important consideration and that's made clear in domestic legislation, but also internationally in the UN convention on the rights of the child.
00:04:45 - that's likely to comply with the child's best interest 'cause otherwise a doctor wouldn't offer that treatment in the first place. Refusing treatment that the doctors recommend on the other hand could cause the child serious harm or it might lead to their death. So the law is children under the 18, the power to say yes and in doing so to keep parents outta the picture if that's what they want, but also it can overrule them if they say no and they're likely to suffer significant harm
00:05:14 - And this, this was explored in a book and the film fairly recently by Ian McEwen. It was called The Children Act. And for anybody who hasn't seen it, the plot follows a judge who's asked to decide whether a teenage Jehovah's witness boy with leukemia can refuse a life sustaining blood transfusion. The judge finds that the boy is intelligent, that he understands the decision, but still goes on to overrule that decision because otherwise the boy would die.
00:05:45 - and can refuse as well as consent because now he's an adult, he suffers another health setback and this time his refusal is accepted and as a result he dies. So that's the legal context and it's the stuff of novels and films. You know, the the law draws a line between those who deserve a right to say no as well as yes to treatment because they're autonomous adults and those who don't have that right because they're not considered to be autonomous and that might be because they have a mental disorder

Rethinking Autonomy and Medical Treatment Laws

00:06:16 - because they're below the age of 18. So that's a rather long-winded way of getting to the crux of Hannah's and my article because the issue we identify is that scientific advances show us that the impediments to autonomy that John Stewart Mill says require this protective approach don't fit the lines currently drawn out in law. In particular, some people over the age of 18 will have impediments to their autonomy
00:06:48 - to any extent what I'm saying there is really obvious and really inevitable because there's no magic wand that's waived at 18. That means suddenly on that birthday you are able to become fully autonomous. The law, as we've seen often results on it relies rather on cutoff points to make the law certain and predictable. So in this context, the law chooses 18 as the age when a person can refuse life, life-saving medical treatments in the person's best interest.
00:07:19 - as good as any, at least to draw the line, these scientific developments, which I hope will I'll go on to talk about in a minute. They suggest that we ought to be less binary in our approach and more attuned to the maturity of the individual young adults. And moreover, legal developments in other areas suggest that we can achieve this and we can do it. Well. Let's have a look at some of the scientific developments. They relate to the concept of adolescence, which is something that's been documented for a long time.
00:07:51 - and stress of the transition period between childhood and adulthood and recognized that it often results in mood disruptions and risky behavior and conflict with with parents. And this led to wide recognition over time of the impacts of adolescents up to the age of 18. But for a long time we assumed that the process of adolescence was complete by the time a person became an adult at 18. And that is the thing that has changed recently.
00:08:23 - and biological characteristics suggest that doesn't end at 18 but carries on into the person's early twenties up to around the age of 24. Now, adolescence doesn't affect all adults in the same way, but there is potential for it to impact on decision making of some over 18 year olds. Just as we widely recognize that it does pre 18, given that adolescence is the prime reason why we stop under 18
00:08:54 - Keep them alive. The developing science suggests that we ought to rethink our approach to those beyond the age of 18 until adolescent ends at around the age of 24. Now the scientific aspects are my co-authors remit, but I can set out the basics of them. Neuroimaging has shown that waves are synaptic pruning that characterize adolescents go on to the ages of 24. And during this phase, neuronal plasticity occurs.

Impact of Adolescence on Decision-Making and Law

00:09:25 - It allows 'em to learn to adapt to a range of environments and situations. It allows them to to develop as independent individuals. But because their neuro circuitry is still in construction, it also impacts on the ability to think critically and rationally before making complex decisions. And in particular, it can impact on self-control, emotions, risk-taking and decision-making. And these are the very aspects of decision making
00:09:56 - of life sustaining treatment. Sociologically too, the independent, the stability, the self-reliance that comes with adult towards in high income countries at least has been delayed when we compare it with historical data. A high degree of attachment to parents can result in increased financial and emotional dependence and that can impact on behavioral autonomy. Now to be clear, adolescents isn't a reason to ignore somebody's decision,
00:10:27 - to try and ensure that a view that they're expressing is one that their young adult has given consideration to. Our contention is that this isn't always happening at the moment under the current system that the binary of childhood, an adult called sets the age of 18 as the age when someone can make an irrational and self-harm decision. And that can result in a failure to investigate whether those decisions are truly capacitors.
00:10:56 - how the law can incorporate proper consideration of the impact of adolescents and that's in criminal sentencing. So, so an area totally different to medical treatment decisions in that area. The laws recently developed to use psychological indicators of maturity to work out the responsibility that should be assigned to adolescents. At first, this was applied purely in relation to under 18 year olds recognizing that adolescents was impacting on their culpability
00:11:27 - More recently though, in line with the scientific developments that I just set out, the same idea has also been applied to young adults under the age of 24. This started with a UK justice committee report in 2019, which called for a distinct approach to young adults up to the age of 25 to quote. While the brain is still developing, a new screening tool was developed to help work out the maturity of each person's centers sentence, recognizing that it's gonna be different for each individual.
00:11:59 - Then the courts began to take maturity into consideration when sentencing these individuals. And what they do there is they recognize that this approach isn't taking away culpability, but rather it's requiring that the sentence reflects a psychological analysis of the person's maturity at the time they committed the crime. And that's important if we're gonna focus on rehabilitation rather than retribution.

Reassessing Autonomy in Young Adult Medical Decisions

00:12:28 - to take responsibility for their actions at the time and also what's required to help 'em develop and to prevent them from re-offending in the future. So we've set out a potential injustice in relation to medical treatment decision making, and we've seen how a similar injustice, in another context, criminal justice sentencing is dealt with, by challenging this binary approach between childhood and adulthood and assessing the developmental maturity of young adults.
00:12:59 - and whether we could achieve the same thing. In medical law, what we don't propose is a wholesaler abandonment of the concept of adulthood. We think we recognize that 18 is a useful proxy for maturity, but what we do argue is that we can, within the existing legal framework, be more sensitive to the maturity of patients. So that instead of simply allowing those who are 18 and over to make very harmful decisions,
00:13:31 - And if it isn't, we try to facilitate an autonomous decision. This would involve a new way of interpreting the mental capacity Act 2005, which is the legislation that sets out the test for capacity and how it applies. There seem to be several aspects to the act which could bar this more nuanced approach. And in the article we set out how they might be overcome. I'm not gonna go through all the details of that, right now.
00:14:00 - that in making these arguments, we are not arguing that adolescents can never make harmful decisions to refuse treatment. We do think though that by changing the approach to the application of the existing test for capacity, some adolescent adults will be shown to not be making autonomous decisions. And where that happens, efforts can then be made to facilitate the understanding that's needed to make an autonomous decision. We don't envisage huge numbers of adults being overruled
00:14:34 - overruled without clear evidence of incapacity and, and, and evidence of what's in their best interests. But we do think that this assessment would herald a much more careful approach to informing and testing understanding of complex and life changing decisions to refuse medical treatment. So we conclude that the law is currently failing young adults and that more can be done within our current legal framework. To change this, it would involve much wider acceptance
00:15:04 - of adolescents into adults than we currently see. And it would involve making changes to the way that information is provided and the way that capacity is assessed in young adults. As a result, it isn't about infantalizing adults, it isn't about journalistically overriding decisions that they happen to be harmful. It's rather about improving our ability to link adolescents developmental immaturity and the support needed to make an autonomous decision. In medicine, this new knowledge, this new science

Bridging Law and Science in Adolescence

00:16:02 - There's much more focus now on transition to adult services, especially in mental health provision. And what we hope is that this article will will help to drive a similar change to mainstream, this idea of adolescence and help the law to keep up with the science and also add that on a personal level. The implication of this article is that I got to work with my daughter Hannah, and I'm prouder of this piece than anything else I've ever written. As a result of that.

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