This law reflected a radical change in the approach to the doctor-patient relationship: from a previous paternalistic model to a patient-centred model, which also applies to minors.6

The development of autonomy is a gradual process; responsibilities are assumed progressively according to current capacities. Being autonomous means being able to make decisions while understanding their implications. The mature minor doctrine emphasises that it is capacity and not age that determines whether or not a minor can actually make decisions. It falls to the physician in charge of the patient to assess whether the minor is intellectually and emotionally capable of understanding the implications of the decision, which entails a great moral responsibility, and requires specific and continuous training.

In the words of Diego Gracia, “the maturity of a person, whether older or younger, should be measured by their formal capacity to judge and assess situations, not by the content of the values they adopt or apply; historically, the typical error has been to consider anyone who has a value system different from ours as immature or incapable.”7

Minors require consent by proxy, but it is through their participation in decision-making, being listened to and having their views taken into account that they develop autonomy.

Confidentiality is at the core of the respect for autonomy, but in exceptional cases it may be at odds with the best interests of the child. Thus, there are limits that would prevent professional secrecy from being maintained at all costs.8

Traditionally, respect for autonomy has been based on the recognition of the individual. However, this fails to take into account inherent conditions of human beings, such as vulnerability and fragility. We all need care and respect, just as we need to care for and respect others.9 If we advocated for upholding the autonomy of minors by restricting the involvement of the family and close environment in decision-making, we would be doing them a disservice. We need to move from an individual to a relational model of autonomy in which the environment of the minor is taken into account and decision-making is shared.

• 2

  The protection of the minor

Organic Law1/1996 of 15 January

The explanatory statement specifies that the law establishes “a conception of minors as active, participative and creative subjects, with the capacity to modify their own personal and social environment and to participate in the pursuit and fulfilment of their needs and in the fulfilment of the needs of others.”

“Current scientific evidence allows us to conclude that there is no clear-cut difference between protection needs and autonomy-related needs, but rather that the best way to guarantee social and legal protection for children is to promote their autonomy as subjects.”10 We ought to highlight that this law is the first to contemplate social risk in contrast to abandonment or neglect.

For a minor to become a participatory, creative, active and autonomous subject, he or she must have a family nucleus during childhood that provides for his or her psycho-affective, social and educational needs. If this nucleus is unable, unwilling or incapable of doing so, the child is unprotected and in a situation of maximum vulnerability. It then falls to society, guided by the principles of solidarity and maximum responsibility, to provide the best possible environment, support and guidance for children to be able to fully develop all their faculties, and to do so with maximum transparency.

Such measures should be individualised, striving for fairness and equality, taking into account the specific consequences of each decision and following a process of deliberation by all the professionals involved, with the understanding that such actions should only be applied when family support measures have failed.

Organic Law8/2015 of 22 July and Law 26/2015 of 28 July

These laws are an extension of one another. Their purpose is to adapt Organic Law 1/1996 to the social changes that had taken place in the last 2 decades and the signing of international agreements by Spain.

They define the concept of the best interest of the minor, which had previously been an indeterminate legal term; consider minors who are dependents “of a woman subject to violence” direct victims of gender violence; establishes a new profile for users of foster care facilities/homes requiring specialised care centres (minors with aggressive behaviour problems, family maladjustment, parent-child violence or severe difficulties in fulfilling parental responsibilities); replace the term deficiencia (deficiency) by discapacidad (disability) and juicio (judgment) by madurez (maturity); recognize that measures involving restrictions of fundamental rights and freedoms should be implemented as a last resort and require previous authorization by the court; include immigrant minors under the custody of the state within the established measures; introduce a chapter on the “responsibilities of the minor”, institute the Central Register of Sex Offenders; make reference for the first time to digital and media literacy, considering it essential for the development of critical thinking and active participation in society of the minor; and contemplate the measures to be taken in the case of prenatal risk (defining this concept) or in the delivery of health care to minors without the consent of the legal guardians.11,12

We are all fragile and vulnerable, but there are situations and life stages in which this is more pronounced (children at risk, children in care, poverty, disability).13

These aspects are addressed by the ethics of vulnerability and the ethics of responsibility.

In facing individuals that would be considered unfit in terms of natural selection, the sole possible response is the defence and protection of minors in particularly vulnerable conditions. Hans Jonas considers this responsibility a natural and non-reciprocal imperative. For Levinas, it is the face of the other, fragile and vulnerable, that makes me responsible, not the I-self, but alterity: “The responsibility for the other cannot have begun in my commitment, in my decision. The unlimited responsibility in which I find myself comes from the other side of my freedom.”

When it comes to minors with severe behavioural disorders, it is important to consider that:

• 1)

  The best treatment comes from early detection and the implementation of preventive measures focused on social welfare, education and employment. Institutionalization should be used as a last resort and requires adequate coordination between the different levels of care and institutions involved.

• 2)

  These children and adolescents need to be given the space to develop insight, allowing them to become aware of the mechanisms underlying their behaviour (ranging from a reactive attachment disorder to deeply entrenched identity pathology), work through them and start the process of adjusting to social norms.14

Keeping the child's upbringing and ties within the child's own family and country is a priority. In adoption and foster care, the rights of the child take precedence over the right to a child. Institutionalisation should be an exceptional measure of protection. Respect for the child's family history is equally important, assisting the child in remembering it and maintaining visits to the biological family when deemed necessary.15

Organic Law8/2021 of 4 June

It is not an amendment of previous laws, and was created at the request of the Comisión Europea to enact the charter of children’s rights and protection at the national level. The United Nations has referred to it as a pioneering law in Europe.16

It underscores that “all forms of violence against children are preventable”, while the previous approach was punitive and focused on responding once the child had already been subject to violence.

It unifies the concept of violence throughout the national territory; considers crucial the specific and continuing education of all professionals who work with children; gives a comprehensive scope to protection, involving every setting where the minor develops (education system, sports, family, private institutions); establishes new roles and/or expands the functions of pre-existing roles; imposes responsibilities in the field of emerging technologies.16

As José Antonio Marina asserted, “it takes a village to bring up a child.”

A preventive approach to caregiving entails a conception of the other that focuses on what is morally good toward the other and positions the caregiver in the domain of virtue ethics. In the words of Victoria Camps, caregiving/caring “is not only a principle to uphold, but an attitude that should [always] be at play” in human relations.17

MacIntyre proposed a shift in the current paradigm of society, from an emphasis on the autonomy of the individual to the reinforcement of virtues associated with acknowledged dependence. He termed this just generosity. This approach involves attending attentively and affectionately to the needs of others.18

While justice is the virtue driving the will to give each individual what is their due, mercy, or misericordia, goes beyond what is strictly just. Saint Thomas Aquinas considered that this virtue manifested towards those persons, whoever they might be, afflicted by some significant evil, especially if it is not of their own making. It involves the recognition of the other as a neighbour and extends relationships beyond pre-established communities.

It expands the groups with special education needs, establishes the competency-based award of the bachillerato (noncompulsory secondary education cycle); introduces education in civic and ethical values and affective-sexual education and eliminates religion from the subjects contributing to the grade point average, Spanish is no longer a compulsory language of instruction, reintroduces artistic education, eliminates end-of-cycle exams and contemplates a new social environment (digitalization, school bullying, sustainable development, environment…).19

Family and school share responsibility for the ethical and moral education of children.20 While the school is a setting for social cohesion and democratic integration where coexistence, tolerance, respect, justice and responsibility are taught, parents have the role of educators in moral responsibility. The value system shifts from models based on welfare and consumption to models focused on respect, coexistence, tolerance and equality.

It calls for universal, inclusive and equitable education, which entails equal opportunity and respecting the pace of each individual to achieve his or her full potential, avoiding discrimination and understanding learning as a lifelong journey. The acceptance of diversity makes it possible to value the enrichment brought by moral plurality in society and promotes the exchange of different social and cultural approaches.21

It regulates new behaviours that were previously not punishable, such as cyberbullying or child grooming, and eliminates the distinction between aggression and abuse; it is commonly known as the “yes is yes” law.22

In the adolescent, the need for exploration may lead to transgression on more than one occasion.23 The ability to make decisions and to accept the consequences of one's actions requires knowledge and reflection.

Sexual freedom must be linked to co-responsibility. It shifts from the objectification of the other to the pursuit of mutual emotional wellbeing. It positions us in the ethics of respect, where the other is a valid interlocutor. Shared decision-making and co-responsibility arise from verbalisation, communication, consensus and previous negotiation.

Ley 4/2023 of February 28

It forces all public administrations to implement new administrative procedures for obtaining personal identification documents; it expressly bans the practice of conversion therapy.24

The individual is above gender, every child is unique and there are no one-size-fits-all solutions.

Identity development is an individual process unique to each person that varies over time and is influenced by the interaction of the cultural, social and family environments. It is important to respect the pace of each person and to listen actively to the narrative of the individual, determining whether it is their own or has been shaped by external factors,25 avoiding rush judgment and stereotyping, and acknowledging the positive nature of diversity.

This requires dealing with uncertainty as a necessary and ongoing aspect of the life of every individual, normalizing it and providing guidance on how to manage it.26

In 2018, the Asociación Española de Pediatría (Spanish Association of Pediatrics) developed a position statement on gender diversity that laid out an ethical perspective structured around 7 principles: best interests of the child, protection of the vulnerable population, active listening and support, prudence, responsibility and recognition, and respecting diversity.27

The principle of responsibility calls for avoiding extreme positions, neither trivialising the experience of the child nor rushing to prescribe treatment to assuage the feelings of the child or family, and refraining from simplifying the response to complex and diverse situations when it comes to providing access to medication or surgery.28

At present, pharmacotherapy is based on the use of off-label drugs for which there are no data on their long-term effects. For this reason, any such therapy must be preceded by information on its possibilities and limitations, avoiding unrealistic expectations.

In a universal health care model, the risk of the system becoming unsustainable cannot be underestimated. To avoid this, equity must be pursued along with the balance between social welfare and individual wants and preferences. 29 This requires acting on good will and being aware that we are responsible for managing limited public resources and for the social cost of medical decisions. In other words, finding a balance between justice and nonmaleficence.