A guide to consent to medical treatment in children and young people


N.B. For the purpose of this guidance an adult is a person aged 18 or over, a young person is aged 16/17 and a child is aged under 16. A parent with parental responsibility to consent to medical treatment is the mother (and the father only if he is married to the mother, or is registered as the father on the birth certificate or has a court order/agreement granting him parental responsibility). Parental responsibility can be awarded to a non parent by means of court order or by the local authority and where there is a care order.

CONSENT TO MEDICAL TREATMENT

Young person aged 16 or 17

  • There is a rebuttable presumption that a young person aged 16 or 17 has capacity to consent to their own medical treatment.
  • The test for capacity is the same as that applicable to adults as set out in the Mental Capacity Act (MCA).
  • Until a young person attains 18 their parents retain authority to consent to treatment on their child’s behalf subject to an important proviso – they cannot override a consent given by their capacitated child to treatment deemed to be in their best interests. (Where disagreement arises legal advice should be sought).
  • If the young person does not satisfy the MCA capacity test then consent to treatment should be obtained from a parent or other holder of parental responsibility (or from the court in last resort).
  • Emergency treatment can be given without consent in order to save the life of, or prevent serious deterioration in the health of, a child or young person.

Child  under 16

  • A child under 16 is only deemed to have capacity to consent to treatment if they are of sufficient maturity and have sufficient understanding in terms of what the treatment involves, the risks and the side effects. (Gillick competence).
  • The closer a child is to the age of 16 the more likely the determination that he/she is Gillick competent.
  • The level of cognitive ability required to demonstrate Gillick competence varies according to the nature and gravity of the decision which is to be taken.
  • Gillick competence is decision specific.
  • Where a child has been assessed as being Gillick competent to consent to a particular treatment, then that consent can be relied upon by clinicians and cannot be overridden by a parent/other holder of parental responsibility. (Where a disagreement arises legal advice should be sought).
  • Where a child is not Gillick competent, consent to treatment should be obtained from a parent/other holder of parental responsibility.
  • Emergency treatment can be given without consent in order to save the life of, or prevent serious deterioration in the health of a child or young person.

REFUSAL OF MEDICAL TREATMENT

Young person aged 16 or 17

  • A young person aged 16 or 17 who has capacity to consent to treatment does not have a concurrent right to refuse treatment which is deemed by clinicians to be in their best interests.
  • Their refusal can be overridden by the consent of a parent/other holder of parental responsibility or the court.
  • Although it is important for clinicians to try and respect the views of a competent child – where their refusal relates to treatment which could save their life or prevent serious deterioration in their health, then legal advice should be sought.

Child under 16

  • A child under 16, even if Gillick competent, does not have a right to refuse treatment deemed by clinicians to be in their best interests.
  • Their refusal can be overridden by the consent of a parent/other holder of parental responsibility or the court.
  • Although it is important for clinicians to try and respect the views of a Gillick competent child – where their refusal relates to treatment which could save their life or prevent serious deterioration in their health, then legal advice should be sought.

Further information can be found within the ‘GMC 0-18 years: guidance for doctors

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk.


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