Children and young people

Even if a child is underage, she has the capacity to consent if she has the maturity and intelligence to comprehend the proposed treatment and its implications

Regarding children under 16, the Age of Legal Capacity Act in Scotland states: “A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment.”

The situation is the same in the rest of the UK, but the right of a person under 16 years old to consent to treatment rests on case law rather than legislation. The ruling in the Gillick case held that even if a child is underage, she has the capacity to consent if she has the maturity and intelligence to comprehend the proposed treatment and its implications. Children who meet this test are commonly referred to as “Gillick competent”.

If a child lacks the capacity to consent, someone with parental responsibility can consent on the child’s behalf (see Box 5).

If, on the other hand, the child or young person (under 18, but under 16 in Scotland) is competent but refuses to consent to treatment that would be in their best interests, this can be overridden, either by someone with parental responsibility or by the courts.

Box 5: Parental responsibility – who has it? 

Someone with parental responsibility may consent to treatment on behalf of a child who lacks the capacity to decide for herself.

Unless she lacks capacity herself, a child’s mother automatically has parental responsibility.

A father will have parental responsibility if any of the following conditions apply:

  • He is married to the mother (or was married to her when the child was born).
  • He has made a parental responsibility agreement with the mother.
  • He has obtained a court order granting him parental responsibility.
  • The child was born after 15 April 2002 in Northern Ireland, 1 December 2003 in England or Wales, or 4 May 2006 in Scotland and the father is named on the child’s birth certificate.

Other individuals or organisations (such as Social Services) may be given parental responsibility by court order, or by being appointed as a guardian on the death of a parent.

 

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