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Who can consent on behalf of a minor?

A child’s mother, whether married or unmarried, has automatic legal guardianship of the child

Box 5: Who can consent?

The minor him/herself

Section 23 of The Non-Fatal Offences Against the Persons Act 1997 provides for minors aged 16 or 17 to consent to surgical, medical or dental treatment. Generally speaking, parental consent is needed for all other minors, and for 16 and 17 year olds who lack capacity, but there may be circumstances in which a person under the age of 16 who demonstrates the maturity to understand the implications of a particular treatment does not wish his or her parents to be involved in that decision. In these circumstances, the patient’s confidentiality should be respected.

Parents

A child’s mother, whether married or unmarried, has automatic legal guardianship of the child. The child’s father also has guardianship if he is married to the child’s mother, either before or after the birth of the child.

A father who is not married to the mother can be appointed as a joint guardian of the child if he and the child’s mother have made a statutory declaration to that effect. Alternatively, he can apply to the courts to be appointed a joint guardian.

Legal guardians

Testamentary (ie, named in a deceased parent’s will) and court-appointed guardians can make healthcare decisions on a child’s behalf.

Foster carers

Foster carers can consent to urgent medical treatment for a child. They can also consent to ancillary treatment, such as a general anaesthetic.*

For non-urgent treatment, consent should be sought from the child’s natural parents. Foster carers or relatives who have been caring for a child for five years or more may be granted a court order that authorises them to consent to “any necessary medical or psychiatric examination, treatment or assessment with respect to the child”.**

* Department of Health and Children Circular, Consent to Medical Treatment for Foster Children, 6 November 1999.
** Child Care (Amendment) Act 2007, section 43A.

Health board

If a care order has been made for a child under 16 years of age, the health board can consent to elective treatment in the best interests of the child. It is good practice, however, to also consult the child’s parents if possible.

The courts

If a child has been made a Ward of Court, the consent of the court is needed before medical treatment can be carried out, except in an emergency, where it is permissible to proceed with treatment in the child’s best interests.

The District Court can make an emergency care order placing a child in the care of the local health board if there is uncertainty or dispute about the validity of a refusal of treatment on the part of a parent or a minor aged 16 or more.

Consent to disclosure of personal health information

“[An] individual may be assumed to be competent to give consent on reaching the age of 16 in line with current medical practice. Where the individual is below that age, consent may still be given but this requires that the medical practitioner involved must assess whether a child or young person has the maturity to understand and make their own decisions about the handling of their personal health information.

“…Where the individual is below [16 years], the general practitioner should exercise professional judgment, on a case by case basis, on whether the entitlement to access should be exercisable by

(i) the individual alone,
(ii) a parent or guardian alone, or
(iii) both jointly.

In making a decision, particular regard should be had to the maturity of the young person concerned and his or her best interests. … In all of this, the general practitioner should have regard to both the established medical ethics position and the role of parents in their duty of care as laid down in case law.”

ICGP and GPIT, Managing and Protecting the Privacy of Personal Health Information in Irish General Practice (2003)

A balance must be found between:

  • The best interests of the child.
  • The wishes of the child, if known.
  • The wishes of the parents.

The weight given to each of the above will depend on the circumstances; the “best interests” argument will carry more weight, for example, if the child’s life is at stake.

Where the individual is below [16 years], the general practitioner should exercise professional judgment on a case by case basis
If there are two people with parental responsibility, it is usually sufficient for one of them to give consent, but where decisions may have profound, irreversible consequences, both of them should be consulted. Even when children lack the capacity to give consent, they should still be involved in the decision-making process – for example, in terms of who goes to theatre with them or what toys they take.

Box 6: Assessing a child’s maturity

Although they have no legal footing in Ireland, the Fraser Guidelines (derived from the Gillick case in England – see Appendix 1) nevertheless provide a useful template for decision making when considering offering contraceptive services to under 16s without parental knowledge or permission.

The Fraser Guidelines

  • The young person understands the advice being given.
  • The young person cannot be convinced to involve parents/carers or allow the medical practitioner to do so.
  • It is likely that the young person will begin or continue having intercourse with or without treatment/contraception.
  • If the treatment/contraception is not given, the young person’s physical or mental health (or both) is likely to suffer.
  • The young person’s best interests require contraceptive advice, treatment or supplies to be given without parental consent.

Medical Practitioners 7th edition (2009) para 43.1