Children and young people

Unless the patient objects, you should also involve parents or others with parental responsibility

Patients under the age of 16 may or may not have the capacity to consent to treatment.

The test of capacity in children is still whether or not they are Gillick competent. If they are able to understand information about their condition and the implications of either proceeding with the proposed investigations or doing nothing, they should be considered competent to provide consent (See Box 3: GMC guidance).

Box 3: GMC guidance

You must decide whether a young person is able to understand the nature, purpose and possible consequences of investigations or treatments you propose, as well as the consequences of not having treatment.

Only if they are able to understand, retain, use and weigh this information, and communicate their decision to others can they consent to that investigation or treatment. That means you must make sure that all relevant information has been provided and thoroughly discussed before deciding whether or not a child or young person has the capacity to consent. The capacity to consent depends more on young people’s ability to understand and weigh up options than on age. When assessing a young person’s capacity to consent, you should bear in mind that:

  • at 16 a young person can be presumed to have the capacity to consent (see paragraphs 30 to 33)
  • a young person under 16 may have the capacity to consent, depending on their maturity and ability to understand what is involved.

It is important that you assess maturity and understanding on an individual basis and with regard to the complexity and importance of the decision to be made. You should remember that a young person who has the capacity to consent to straightforward, relatively risk-free treatment may not necessarily have the capacity to consent to complex treatment involving high risks or serious consequences. The capacity to consent can also be affected by their physical and emotional development and by changes in their health and treatment.

GMC, 0–18 Years: Guidance for All Doctors (2007), paras 24–26.

 

Assessments of a patient’s capacity to consent should be recorded in the notes

Unless the patient objects, you should also involve parents or others with parental responsibility, particularly in more serious situations.

Assessments of a patient’s capacity to consent should be recorded in the notes.

If the child or young person either lacks capacity or is withholding consent, someone with parental responsibility can consent on his/her behalf (see Box 4). If there are two people with parental responsibility, it is usually sufficient for one to consent, but where decisions may have profound, irreversible consequences (which may include disputes over vaccination or circumcision for non-medical purposes), both individuals with parental responsibility should be consulted.

Even when children lack the capacity to give consent, they should still be involved in the decision-making process

Two other occasions when both parents should be consulted are cases of circumcision for religious reasons, and vaccinations where parental views may not agree.

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.

In all aspects of caring for children, the child’s welfare is the paramount consideration. 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. A parent’s refusal to consent in these circumstances can be overruled by the courts. As competent adults, they have the right to make decisions that may compromise their own welfare, but they do not have the right to make such decisions on behalf of a child.

Sometimes it may be necessary to apply to the courts for a ruling on whether a particular course of treatment should go ahead. Examples might be when parents are in disagreement – either with doctors or between themselves – about the best interests of the child.

Box 4: Who has parental responsibility?

Someone with parental responsibility may consent to treatment on behalf of a child up to the age of 18 in England, Wales and Northern Ireland and 16 in Scotland.

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 of his child (or was married to her at the time of the child’s birth).
  • 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.

 

Scenario 3

Even if E had been deemed not competent to make a decision, the treatment could still have gone ahead as it was in E’s best interests

Thirteen-year-old ES is attending boarding school while his parents are in Africa working for an NGO. One evening his house master, Mr G, brings him to A&E; E has a raised temperature and is complaining of severe abdominal pain. A diagnosis of acute appendicitis is quickly made, and arrangements to take E down to theatre are put in motion. The doctor asks Mr G for E’s parents’ contact details, but is told that they are unavailable as they are currently in a locality with no communication infrastructure. Mr G offers to sign the consent form on their behalf, explaining that he is acting in loco parentis* while Mr and Mrs S are away.

The doctor, however, is unsure about this and contacts the trust’s solicitor. She tells him that it is likely that Mr G could consent on behalf of E’s parents, provided they assigned such rights to him, but suggests that the doctor first assess E’s capacity. When his condition is explained to him in terms he can understand, E readily grasps the situation, his need for urgent surgery and the consequences of delay.

He is therefore competent to consent to treatment on his own behalf, so parental consent is not necessary. However, even if E had been deemed not competent to make a decision, the treatment could still have gone ahead as it was in E’s best interests. The consequences of not operating in this case would be profound.

* “Section 2(9) of the Children Act 1989 states that a person who has parental responsibility for a child ‘may arrange for some or all of it to be met by one or more persons acting on his behalf’. Such a person might choose to do this, for example, if a childminder or the staff of a boarding school have regular care of their child.” DH, Reference Guide to Consent for Examination or Treatment (2nd edition) (2009), p. 37.

 

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