In a Nutshell: Children, medical treatment and consent

Coram Children's Legal Centre
Tuesday, August 20, 2013

Children under the age of 16 may be able to give consent to medical treatment if they are deemed to be "Gillick competent".

At what age can a child consent to their own medical treatment?

Unless it is an emergency, a medical professional must obtain consent to administer any medical treatment to a child or adult. Without consent, the criminal offence of assault will be committed. Section 8(1) of the Family Law Reform Act 1969, provides that anyone aged 16 or older is presumed in law to have capacity to consent to medical, surgical or dental treatment, and counselling, unless there is any evidence to suggest the contrary. This might be in circumstances such as where the person has an underlying mental health condition or is unconscious and rendered unable to consent.

Can children under the age of 16 consent to their own medical treatment?

Some children and young people under 16 may be able to consent to their own medical treatment if they are considered to be "Gillick competent". This term arose from the case of Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] in which the then House of Lords was asked to consider whether Department of Health guidance that a young person under 16 could receive contraceptive or abortion treatment without the consent of her parents was lawful. The court concluded that in certain circumstances, including when the girl could understand the advice and when it was in her best interests to receive the treatment, the medical professional could accept her consent alone. A professional can now deem a young person under 16 to be Gillick competent and able to make their own decision if they assess that the young person is of sufficient age and understanding to fully appreciate what is involved in the treatment and any consequences flowing from it. In practice, the professional should continue to encourage the young person to involve their parents in the decision making. It is unlikely, however, that a child under 14 would be Gillick competent.

What if the child is not competent to consent?

If a child is not competent to consent to their own treatment, then the medical professional will need to obtain consent from someone who has parental responsibility for the child, such as a parent or someone holding a residence order. Normally consent from only one person with parental responsibility will be sufficient. However, there may be situations where those with parental responsibility disagree and will need to ask a court to make the decision based on what is in the child's best interests.

What happens if a Gillick-competent child refuses to consent to necessary medical treatment?

Parents cannot normally override a decision by a Gillick-competent child to consent to medical treatment. However, the law is more difficult in circumstances where a child or young person refuses treatment, but someone with parental responsibility agrees to it. In these circumstances, and particularly where the consequences of refusal are potentially very serious, the court can be asked to make an order based on what is in the best interests of the child and overrule both the parents' and the child's views.

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