The issue of consent in children

Treating patients under 18 can present legal problems, says Dr John Holden.

Treating children, and young people under 18, can present medico-legal dilemmas around consent and confidentiality. Some of the problems stem from the fact that while older children may have the capacity to give consent, for younger children it is necessary to obtain authority from someone with parental responsibility.

Calls to the MDU about children and consent are very common, particularly regarding requests for contraceptive advice. They include: 'How can I judge if a patient under 16 is mature enough to give consent?' and 'Can I give information about a child's treatment to the parents if the child objects?'

New guidance released by the GMC, '0-18 years: guidance for all doctors', addresses these issues.

When can children consent?
The GMC advise that 'at age 16 a young person can be treated as an adult and can be presumed to have capacity to decide'. However, while patients between 16 and 18 have a legal right to consent to treatment, they cannot refuse treatment that is considered to be in their best interests and authorised by a person with parental responsibility or the courts.

Parental authority
Under the Children Act 1989, parents have 'parental responsibility' for their children while they are minors but the right to control is not absolute or precisely defined and must always be informed by what is in the best interest of the patient.

In dealing with small children, parents can authorise treatment even when the child actively dissents, for example when babies are given injections.

As the child grows up, it is good practice to have the child's consent and the authority of the parent, both of whom should understand the purpose and hazards of the procedure. The ability of a child to consent will vary with age and the treatment: a 12-year-old may be able to consent to treatment for a cut knee, for example, but is unlikely to be able to consent to major surgery.

Fraser and Gillick competence
When dealing with patients under 16, you will need to judge whether a child is mature enough to understand what is involved in a proposed treatment, including its nature, purpose and hazards - this is known as the Gillick test and shows the child is competent to consent to treatment. In the case of a child who is competent, the parents must authorise treatment on the child's behalf. In the case of contraception, the Fraser guidelines on competence apply.

It is important that competent teenagers feel able to consult their doctor about any aspect of their health in confidence, or they might be reluctant to seek advice. The doctor should discuss involving their parents with them.

Scottish law
The position is different in Scotland where those with parental responsibility cannot authorise procedures a competent child has refused. In Scotland the Children (Scotland) Act 1995 and the Age of Legal Capacity (Scotland) Act apply.

Northern Irish law is the same as England and Wales except 16 and 17 year olds can be treated in their best interests if a parent cannot be contacted.

Dr Holden is a medico-legal adviser at the MDU

This issue falls under section 8 of the GP curriculum

Learning points

  1. Consent and confidentiality issues in children and young people
  2. Young people aged 16 and above have a legal right to give or withhold consent, but may not refuse treatment deemed to be in their best interests.
  3. Children who have capacity must consent to disclosure of information about them, except in exceptional circumstances.
  4. A child under 16 can be judged to be competent under the 'Gillick test' if they understand the nature, purpose and hazards of the proposed treatment.
  5. In the case of children who are not competent, someone with parental responsibility must authorise any treatment or disclosure.
  6. The position is different under Scottish law.

References

- GMC

- Office of Public Sector Information. Children Act 1989

- Office of Public Sector Information. Children (Scotland) Act 1995

- Office of Public Sector Information. Age of Legal Capacity (Scotland) Act 1991

Case history: request for the Pill

A 15-year-old girl saw a GP registrar requesting the oral contraceptive Pill. The girl asked the doctor not to tell her parents. The registrar rang the MDU to seek advice.

The MDU advised that a child under 16 can consent to treatment without parental agreement if the child has the intelligence and maturity to understand the nature, purpose, benefits and risks of the treatment as well as the risk of going untreated and any alternatives. If so, her consent is valid.

If the child has capacity to consent, she also has the capacity to give or withhold consent to disclosure of confidential information. The registrar was advised to take every reasonable step to persuade her to involve her parents. If she refused, the registrar was advised to accept this refusal.

If the patient wished to involve her parents, the registrar would be able to give them a full explanation. If the girl did not give an indication either way, the registrar must ask for her permission before disclosing any information to the parents.

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