Consent – children and young people
Correct as of September 2009
Valid consent is just as important when treating children and young people as it is with adults. In some situations children are able to give consent themselves, and sometimes others need to take the decision on their behalf. This factsheet sets out the basic information to enable you to obtain the appropriate consent from children and young people.
Basic principles
When caring for children, you have an overriding duty to act in the best interests of the child. When making decisions regarding treatment, the child or young person should be involved in the decision as much as possible, depending on their level of understanding. If the child is not capable of consenting themselves, you will need the consent of a person with parental responsibility or, in some circumstances, the court, in order to proceed with treatment.
Age and capacity
Aged 16 and 17
In Northern Ireland, the legal age of capacity is 18. However, under section 4 of the Age of Majority Act (Northern Ireland) 1969, patients aged 16 or 17 can provide consent to their own medical care, if they are deemed to be capable of making informed decisions. As with adults, you must be sure that the patient understands the implications of the proposed treatment and is giving consent voluntarily, before treatment can be provided.
However, unlike adults, the decision of a competent young person to refuse treatment may be overruled by a court or by someone with parental responsibility, if it is deemed to be in their best interests.
Younger than 16
Children under 16 can consent to medical treatment if they understand what is being proposed. It is up to the doctor to decide whether the child has the maturity and intelligence to fully understand the nature of the treatment, the options, the risks involved and the benefits. A child who is considered to have capacity in this way is sometimes referred to as being Gillick competent.
Parents cannot stop a competent child from receiving medical treatment that he/she has provided consent for. For example, a 15-year-old boy who has been declared competent by his doctor can consent to receiving tetanus immunisation, even if his parents do not agree with it.
Very young children, and those who are not considered to be capable of making their own decisions, cannot either give or withhold consent. Those with parental responsibility need to make the decision on their behalf.
In an emergency situation, when a person with parental responsibility is not available to consent, the doctor has to consider what the child’s best interests are and then act appropriately. The treatment should be limited to what is reasonably required to deal with the particular emergency. Wherever possible, it is advisable to discuss the case with a senior colleague, if available. In all cases, it is important to document fully what decisions were made and why.
What happens if the child withholds consent?
If the child lacks the ability to make their own medical decisions, the parents can consent on behalf of the child, even if the child is refusing the treatment. However, you should consider carefully whether overriding the consent of a distressed child, given the clinical circumstances at the time, is necessary. Often, if sufficient time is given, the parents will be able to persuade the child that the intervention will be beneficial. You should aim to work in partnership with the parents, assuming that the child’s best interests are paramount.
A competent child is legally entitled to withhold consent to treatment. However, even if the child or young person is considered to be competent, there are some situations where their refusal can be overridden by those with parental responsibility. If more than one person has parental responsibility for the young person, consent only needs to be provided by one parent for treatment to go ahead, even if the other parent withholds their consent.
If the treating doctor believes that withholding consent may be detrimental to the patient’s wellbeing, legal advice may be required. It may be necessary for a court to determine whether treatment can be given against the wishes of the competent young person.
What happens if the parents withhold consent?
If a competent child refuses treatment and his/her parents agree with the decision, but you do not believe that it is in the best interests of the child, you should take legal advice on how to proceed.
The same principle applies if the parents of a non-competent child choose to withhold consent for what you believe to be necessary treatment. You are obliged to act in the child’s best interests and may need to apply for a court order to proceed with treatment.
Documentation
It is important to record any decision made in the patient’s notes. This should include the information that was provided to the patient and the parents and how the decision was reached.
Further information
- MPS Factsheet – Access to health records
- GMC, 0-18 years: guidance for all doctors – www.gmc-uk.org/guidance
- Department of Health, Social Services and Public Safety, Reference Guide to Consent for Examination, Treatment or Care (2003) – www.dhsspsni.gov.uk/consent-referenceguide.pdf
- BMA, Withholding and Withdrawing Life-prolonging Medical Treatment – Guidance for decision making (third edition) Oxford: Blackwell Publishing (2007) pp 83-10