Legal Update: In a Nutshell - Children and consent to medical treatment

In most cases it is necessary for medical professionals to obtain consent before undertaking any examination or investigation, providing treatment (surgical, medical or dental) or involving patients in teaching and research. In order for a medical professional to determine whether a patient has the competence and capacity to consent to treatment, the patient must show that they have:

This is particularly important in cases involving children and young people. Children of the same age will not necessarily have the same understanding so the medical professional must treat each decision on its own merits.

Do children have the competence and capacity to consent to medical treatment?

Medical capacity is more dependent on the young person’s ability to understand and weigh up options than on age. For example, a 16-year-old may not have the presumed capacity to consent whereas a 14-year-old may have the maturity and a better understanding as to what is involved in treatment. It is unlikely that a young person misusing drugs or suffering from intermittent mental illness would be regarded as competent. The Gillick Competency rule clarified that a child has the capacity to consent when he or she has “…sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.

Furthermore, a child or young person who has capacity to consent to straightforward risk-free treatment may not have capacity to consent to complex treatment. This can also apply where the child or young person’s health deteriorates. In these cases, or where a child does not have capacity to consent to any treatment, a person with parental responsibility can consent on their behalf. Parental responsibility means the legal rights, duties, powers, responsibilities and authority a parent has for a child and the child’s property – for more information, see http://childlawadvice.org.uk/information-pages/parental-responsibility/.

Once a child reaches the age of 16 there is a general presumption in law that he or she will have sufficient capacity to make certain decisions and can consent to medical treatment.  

What if no one is able to provide consent?

If, for example, a child or young person was involved in a road traffic accident or was taken to hospital and needed life-saving treatment it may not be possible for the medical professional to wait until the parents are found to give consent. Also, such as in the case of unaccompanied asylum-seeking children who are not the subject of a care order, there may not be anyone with parental responsibility able to give consent. In these cases the medical professional can go ahead with the treatment provided that it would be in the child or young person’s best interests to do so.

Temporary carers will not have parental responsibility but may do what is reasonable in the circumstances to promote and safeguard the child’s welfare. For example, if an accident occurred at school, a teacher could accompany a child for urgent treatment and that treatment may be carried out without parental consent if it is an emergency and is in the child’s interests.

Children with learning disabilities

It should not be assumed that simply because a child or young person has learning disabilities that he or she will not have capacity to consent. A child or young person may understand the information better if it is offered in a way that they find helpful. For example, an independent advocate could assist a young person to express his or her wishes and feelings.

www.childrenslegalcentre.com


Do you have any questions?

The Child Law Advice Service provides legal advice and information on areas of child, family and education law.

Please visit www.childlawadvice.org.uk to view legal information pages and guides. For clarifying questions, call the helpline number on the website. The helpline is available Monday to Friday 8am to 6pm.