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Consent in Children

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Overview

The laws around consent and competence in children are complex. This section is only a summary aimed at finals exams and like all content on this site, must not be used in clinical practice and is not legal advice, see the disclaimer and terms of use here.

The NICE NG204 guidelines and the General Medical Council (GMC) have more detail regarding consent, capacity, and other legal issues.

Competence

Overview

If someone is over 16, this does not automatically make them competent. As well as this, assumptions about competence should not be made, such as assuming a child with a learning disability does not have competence. A person with competence:

  • Is able to understand, retain, and weight up the pros and cons of information regarding their care
  • Is able to use this information to consider whether or not they should consent
  • Is able to communicate their wishes

All possible steps should be taken to convey information in a way that the person can understand in order to assess capacity.

General Principles

Overview

Involve all children and young people in decisions about their healthcare unless they do not wish to or are unable to. In regards to consenting to treatment:

  • For people aged 16 or 17:
    • If they have mental capacity, they can consent to treatment, but cannot refuse treatment if it’s deemed to be in their best interests
  • For people >16 years old:
    • They are presumed to have the capacity to consent unless there is evidence suggesting otherwise 
  • For people <16 years old:
    • They can make decisions about healthcare and consent to treatment if they are Gillick competent (see below), but cannot refuse treatment if it’s deemed to be in their best interests
  • If the child is not legally competent:
    • Consent will need to be obtained from someone with parental responsibility unless it is an emergency
    • Emergency treatment can be given without consent to safe the life of, or prevent serious deterioration in the health of a child or young person
  • For people ≥18 years old:
    • If they have mental capacity, they can consent to treatment or refuse treatment
    • If they do not have capacity, no-one can consent to treatment on their behalf and treatment can be given providing this is in their best interests

Parental Responsibility

Overview

Parental responsibility includes the right of parents to consent to treatment on behalf of a child when the child cannot provide valid consent for themselves, provided the treatment is in the best interests of the child.

The Children Act 1989

Some general points include:

  • Mothers automatically have parental responsibility
  • Regarding fathers:
    • If married/in a civil partnership with the mother, they automatically have parental responsibility and do not lose it if divorced/civil partnership dissolves
    • If not married/in a civil partnership with the mother, they do not automatically have parental responsibility
  • Female people who are married/in a civil partnership with the mother automatically have parental responsibility if the child is conceived as a result of donor insemination unless the civil partner/wife of the biological mother did not consent to the conception
  • Stepparents do not automatically have parental responsibility
  • Grandparents and foster parents do not automatically have parental responsibility

Parents do not lose parental responsibility if they divorce:

  • Separated/divorced parents cannot relinquish parental responsibility, even if they do have any contact with the child or make any financial contribution

Other people can acquire parental responsibility for a child:

  • Such as a guardian appointed by a court, adoptive parents who adopt the child, or the local authority whole a child is subject to a care or supervision order

Accessing information

Those with parental responsibility have a right to access the child’s health records, however, if the child can give consent, they must consent to the information being accessed.

Gillick Competency

Overview

Children under 16 years old can consent to their own treatment if they are deemed Gillick competent, meaning they have a full understanding of the treatment (including its purpose, nature, effects and risks, chances of success, and availability of other options), can retain the information and weigh up the pros and cons, can use this information to decide whether or not they can consent, and can communicate their wishes.

Fraser Guidelines

Overview

The Fraser guidelines are used specifically to decide if a child can consent to contraceptive or sexual health advice and treatment without parental consent. This involves all of the following being met:

  • The young person understands the nature and implications of the treatment/advice
  • The young person cannot be persuaded to tell their parents or allow the doctor to
  • The young person is likely to begin or continue having, sexual intercourse with or without advice/treatment
  • The young person’s physical or mental health is likely to suffer without advice/treatment
  • The treatment/advice is in the young person’s best interests

The Fraser guidelines also apply to sexually transmitted infections and termination of pregnancy.

Children under 13 years of age are unable to consent to any sexual activity and this should automatically trigger child safeguarding measures.

Delegating Parental Responsibility

Sometimes parents may need to delegate the responsibility to consent to treatment to other people (such as grandparents) for certain matters including emergency care and treatment for minor illnesses. In general:

  • Delegated consent does not need to be in writing and the healthcare professional does not need to consult the parents unless there is evidence to believe the parents’ views would be different
  • If there is no specific agreement between parents and a third party in a given situation, the third party can consent providing it is in the child’s best interests (e.g. a teacher bringing a child to the emergency department after an accident at school requiring urgent care)
  • Bringing a child for immunisation is seen as implied consent and devolved responsibility does not have to be in writing, unless there is reason to believe the parents’ views would differ from a third party bringing the child.

Always document a written record of the issues covered regarding consent.

Special Situations

Some special situations may include:

  • No-one can give valid consent (e.g. the parents and child are not competent):
    • Treatment can be given provided it is in the child’s best interests and there would be significant harm if treatment was withheld
  • The clinician disagrees with the parents:
    • An application to the court should be made to decide, particularly if the treatment is life-saving:
      • Emergency decisions can often be made, but if they cannot be given in time, life-saving treatment should be given.
    • The parents may wish for a treatment which the clinician feels is inappropriate. An application for a court decision should be made.
      • The court usually finds a clinician who is prepared to give the treatment.
  • Consenting to non-therapeutic procedures (e.g. donating blood, organs, or bone marrow):
    • The same competency tests for consenting to treatment are applied
    • If the child is not competent and those with parental responsibility consent, they must do so if the procedure is in the best interests of the donor
    • If the donor and recipient are siblings (same parents), advice should be sought from an independent assessor, hospital ethics committee, or court.
  • Research:
    • For therapeutic research (e.g. an untested drug that may work better than current medications):
      • If the child is competent of if the person with parental responsibility is competent, they can give consent.
    • For non-therapeutic research (e.g. taking extra blood samples with no therapeutic benefit to the child):
      • If the child withholds consent, regardless of age and views of those with parental responsibility, the procedure cannot go ahead.

Further Information

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