The rules on consenting children and adolescents can seem a complex business. Putting the theory learned in medical school into practice can be challenging. This article aims to describe the key issues, including the law, when consenting children and adolescents, and to provide some worked examples.
Contents
Overview
As you know, valid consent for adults requires that the patient has capacity to make the decision (they can understand, retain and weigh the information given to them, and communicate a decision). All adults are assumed to be capacitous (1).
Competence (shorthand for ‘Gillick Competence’) refers to a young person having ‘sufficient understanding and intelligence’ to make a decision (2). ‘Gillick competence’ and ‘Fraser Guidelines’ are terms often used interchangeably. However, Gillick competence is concerned with determining a child’s ability to consent. Fraser guidelines, meanwhile, are specifically used to decide if a young person can consent to contraceptive or sexual health treatment (3).
It can be helpful to break down ‘children and adolescents’ into age groups when trying to understand the law governing their ability to consent.
Adolescents aged 16 and 17
As for adults, the law assumes that adolescents aged 16-17 are competent. Interestingly, adolescents aged 16 and 17 years in England, Wales and Northern Ireland are presumed to be competent to consent, but not necessarily to refuse treatment (4). The law is different in Scotland, where parents cannot authorise treatment that a competent young person has refused (5). Legal advice should be sought if a competent young person refuses treatment which you believe to be in their best interests (6).
Scenario 1
A 16 year old girl attends for elective surgery with her mother. Who should sign the consent form?
Scenario 2
A 17 year old boy with Type 1 diabetes refuses insulin; his parents want you to force him to take it.
Children aged 13(ish) – 16
Young people aged under 16 can consent to their own treatment, if they are deemed to be Gillick Competent. Unfortunately, there is no simple single test to determine competence, but the principle is that the young person must have sufficient understanding and intelligence to enable them to understand fully what is proposed and be able to express their views (7,8) . The understanding required for different treatments will also vary considerably. A child under 16 may have the capacity to consent to some interventions but not to others. The child’s capacity should therefore be assessed in relation to each specific decision they are being asked to make (9).
There is no lower age limit at which Gillick competence or Fraser guidelines can be applied. That said, it would rarely be appropriate for a child younger than 13 to consent to treatment without a parent being involved. In terms of sexual health, those under 13 are not legally able to consent to any sexual activity, therefore any information intimating sexual activity would need to be acted upon, regardless of Gillick Competence (3).
Scenario 3
A 15 year old boy needs to have bloods taken on the ward. Can he consent for this?
Scenario 4
A 15 year old girl attends her pre-operative assessment for elective surgery, alone. Can she be consented?
Younger children and others who lack competence
Young people under 16 who are not Gillick competent cannot either give or withhold consent to treatment. A person with parental responsibility is needed to do so.
The following people automatically have parental responsibility (10):
- the child’s mother
- the child’s father if he was married to the mother at the time of birth
- unmarried fathers can acquire parental responsibility in several different ways:
- For children born before 1 December 2003, unmarried fathers will have parental responsibility if they: marry the mother of their child or obtain a parental responsibility order from the court
- For children born after 1 December 2003, unmarried fathers will have parental responsibility if they are mentioned on the birth certificate, marry the mother of their child, or obtain a parental responsibility order from the court
- the child’s legally appointed guardian
- a local authority designated in a care order in respect of the child
As for people consenting for themselves, those giving consent on behalf of the child must have capacity, be acting voluntarily and be appropriately informed. In cases where a child lacks capacity to consent on their own behalf, you should still aim to involve the child as much as possible in the decision-making process.
It is usually sufficient to have consent from one parent. If parents cannot agree and disputes cannot be resolved informally, you should escalate to seniors who may seek legal advice about whether an application should be made to the court[i].
Scenario 5:
A 5-year-old patient attends for elective day case surgery to remove an embedded earring. She attends with her grandfather – can her grandfather provide consent?
Exceptions and additional considerations
Emergencies
You can provide emergency treatment to a child or young person without their consent, or the consent of those with parental responsibility, in order to save their life, or prevent serious deterioration in their health.
Characteristics of valid consent
As in all cases of consent, in addition to the patient having capacity, sufficient information about the treatment must be provided. This information should include a description of the treatment/procedure, risks and alternatives (including the alternative of doing nothing) as well as inviting questions. To be valid, consent must also be given voluntarily. This aspect should be considered carefully in children and young people, who may be subject to undue influence by their parent(s), other carers or a sexual partner (current or potential). It is important to establish that the decision is the patient’s own (9).
Treatment for a mental disorder
Where the treatment involved is for a mental disorder, consideration should be given to using mental health legislation. When a young person of 16 or 17 has capacity
and does not consent to admission for treatment for mental disorder, they cannot then be admitted informally on the basis of the consent of a person with parental responsibility (8).
Resources for further reading
- Department of Health. Reference guide to consent for examination or treatment. Second edition. 2009. Pp 32-8.
- General Medical Council. Ethical Guidance for Doctors. 0–18 years: guidance for all doctors. Updated 2018.
- Willsher A, Macaulay C. Consent in children and adolescents – who decides? BMJ 2014;348:g1455.
- Care Quality Commission. Brief guide BG004: capacity and competence to consent in under 18s. 2019.
References
- Mental Capacity Act 2005. Part 1, Sections 1-3. http://www.opsi.gov.uk/acts/acts2005/ukpga_20050009_en_1. (accessed December 2021).
- Per Lord Fraser in Gillick v Wisbech and W Norfolk AHA [1985] UKHL 7; [1985] 3 All ER 402
- Care Quality Commission. GP mythbuster 8: Gillick competency and Fraser guidelines. 2021 (accessed December 2021)
- Re R (a minor) [1991] 4 All ER 177
- (Houston (applicant) (1996) 32 BMLR 93
- General Medical Council. Ethical Guidance for Doctors. 0–18 years: guidance for all doctors. Updated 2018. https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/0-18-years (accessed December 2021)
- Per Lord Scarman in Gillick v Wisbech and W Norfolk AHA [1985] UKHL 7; [1985] 3 All ER 402
- Larcher V, Hutchinson A. How should paediatricians assess Gillick competence? Archives of Disease in Childhood 2010;95:307-311.
- Department of Health. Reference guide to consent for examination or treatment. Second edition. 2009.
- The Children Act 1989
Miss Mairead Kelly, Clinical Fellow in Head and Neck
Reviewed by Miss Eleanor Crossley, ST4, Specialist Trainee in Otolaryngology
Edited by Divya Jayarajan (Medical Student)
