Children and young people
Age 16 or 17
The law recognises 16 and 17 year olds as having the capacity to consent to medical and dental treatment
Although the age of majority is 18, the law recognises 16 and 17 year olds as having the capacity to consent to medical and dental treatment on their own behalf.3 It is not clear, however, whether someone of this age has a right to refuse as well as consent to treatment as this has not yet been tested in the courts.
Theoretically, a parent or legal guardian can consent to treatment that a 16 or 17 year old is refusing, but this is not an ideal situation (especially if the minor concerned has the capacity to understand the implications of his/her decision) and in such circumstances it is probably better to refer the matter to the court to decide. If a minor of 16 or over is incapable of giving consent, it may be obtained from the young person’s parent/guardian (see Box 5) or, if necessary, the court.
In law, the consent of the parent or legal guardian is required if a child is under the age of 16. In practice, however, it is reasonable to seek the consent of a minor with the capacity to understand the nature and implications of the proposed treatment or procedure. This should not present a problem if the child and parents are in accord about a decision to consent to treatment. Difficulties can arise, however, if the parents of a minor are in disagreement with clinicians or the patient about what is in the child’s best interests.
The courts tend to take the view that parents’ wishes should only be overridden in exceptional circumstances
Occasionally, parents make decisions that are likely to affect a child adversely; they may disagree with the orthodox management of certain conditions, for example, and although this may not be life-threatening, the child may suffer by not having access to conventional treatment. In this situation, the best course is usually to refer the matter to the hospital’s legal team or the HSE.
The Irish Constitution recognises the family as “a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”4 so the courts tend to take the view that parents’ wishes should only be overridden in exceptional circumstances – ie, if there is a serious threat to a child’s life or wellbeing. But balancing the respective rights of child and parent may not be easy: as Justice Murphy put it in a 2001 Supreme Court case,5 “It would be impossible and undesirable to seek to define in one neat rule or formula for all the circumstances in which the State might intervene in the interests of the child against the express wishes of the parent”. (See Appendix 1 for a summary of the case Northwestern Health Board v HW and CW.)
If there is reason to believe that a parent’s refusal to consent to a child’s medical treatment is placing that child at risk, the health board can apply to the District Court for an emergency care order. If granted, the care order will place the child temporarily in the care of the health board, which can then consent to the child’s medical treatment.6
In the Supreme Court case cited above, the child in question was an infant, and therefore unable to express an opinion for himself. The opinions of children with the capacity to understand the nature and implications of a proposed treatment should, however, carry considerable weight in any decisions about what is in their best interests, even though they lack the legal right to consent to treatment (see Box 4).
Box 4: Taking a child’s wishes into account
“Children and young people should be involved as much as possible in discussions about their healthcare. When you are talking to a child or young person, it is important to give them information in an age-appropriate manner, listen to their views and treat them with respect.”
Medical Council, Guide to Professional Conduct for Ethics for Registered Medical Practitioners 7th edition (2009) para 43.1