Consent

Consent for children and young people is an area that can cause confusion, particularly around who can give consent on behalf of a child, when children are able to give consent for themselves, and what to do in the event of a disagreement or refusal of consent (either on the part of the parents or from the child).

This outline looks at giving consent and refusing consent for investigations and treatment in each of the four basic situations:

  • Under 16 and not competent to decide
  • Under 16 and competent to decide
  • 16 or 17 and has capacity
  • 16 or 17 and lacks capacity

 

Thresholds for competence and capacity

Under 16 years old
Competence is a key concept.

In England, Wales and Northern Ireland the threshold for a child of less than 16 to be able to make treatment decisions on their own is based on common law following the House of Lords judgment in Gillick v West Norfolk and Wisbech Area Health Authority. To be Gillick competent a child must have sufficient intellectual and emotional maturity to fully understand the nature of what is proposed, including the risks and benefits, as well as the reasonable alternatives and consequences of no treatment at all. The process of obtaining consent must obviously include all these elements.

In Scotland the threshold is codified in the Age of Legal Capacity (Scotland) Act 1991. He or she must be ‘capable of understanding the nature and possible consequences of the procedure or treatment.’

You should assess children under 16 to see if they are competent to make the decision in question but their competence must be demonstrated rather than assumed. Gillick competence is therefore sometimes described as demonstrable task-specific competence. 

16 or 17-year-olds
In contrast, young people of 16 or over must be presumed to have capacity unless they can be shown not to (as with adults). This is known as a rebuttable presumption of capacity.

The legislation is country-specific: the Mental Capacity Act 2005 in England & Wales, the Adults with Incapacity (Scotland) Act 2000 and the Mental Capacity Act (Northern Ireland) 2016. The thresholds for being found to lack capacity are discussed in the Adults section of this website.

 

Giving consent

If under 16 and not competent to decide
Someone with parental responsibility (PR) should give consent. For more information on parental responsibility, see the Definitions and Distinctions section.

If under 16 and competent to decide
The child can give consent him/herself and should be encouraged to do so. When a competent child has given consent it is clear in law that someone with PR cannot overrule them (see the separate section below for discussion regarding overruling a refusal).

You should encourage children to include their parents in discussions but you should respect a competent child’s right to confidentiality if they refuse to allow this. See the section on Confidentiality for more details.

Some competent children may want someone with PR to decide for them and that is fine.

If 16 or 17 and has capacity (remember there is a rebuttable presumption of capacity)
The young person can and should give consent him/herself, and not someone with PR.

A 16 or 17-year-old with capacity may want or expect their parents to make a decision for them. The young person can obviously use any support they wish to but they should be made aware that the decision is theirs. The legal position is not entirely clear but allowing parents to decide about treatment without the young person being the final arbiter systematically disempowers young people.

You should encourage young people to include parents in discussions but you should respect their right to confidentiality if they refuse to allow this. See the section on Confidentiality for more details.

If 16 or 17 and lacks capacity
In England, Wales and Northern Ireland, someone with PR can give consent. It is important to remember that this ends once the young person turns 18 and becomes an adult – something that parents themselves do not always realise. 

In Scotland, 16 and 17 year olds who lack capacity are treated in the same way as adults who lack capacity; parents may NOT give consent on their behalf. Please see the Adults section of this website for more detail.

 

Refusing consent

If under 16 and not competent to decide
If the child objects then their views should be taken into account and given appropriate weight according to their level of understanding but they are not determinative and someone with PR can overrule them if the procedure is still felt to be in the child’s best interests despite their objections.

If under 16 and competent to decide
If an apparently competent child refuses consent for a procedure then you should ask two questions:

  1. Is the child truly competent to decide? In other words, do they meet the threshold for competence in your jurisdiction. In Scotland they must be ‘capable of understanding the nature and possible consequences of the procedure or treatment.’ In the rest of the UK and Northern Ireland they must have the intellectual and emotional maturity to fully understand what is proposed and the implications of refusing? See discussion of Competence and Capacity above.
  2. Is the proposed procedure really in the child’s best interests once their objection and the reasons behind it are taken into account?

Taking time to fully explore these questions will usually resolve concerns, clear up misunderstandings, or uncover alternatives that are more suitable and result in a negotiated solution. If the child is truly competent and continues to refuse consent for a procedure that is still felt to be in their best interests despite their objections then you are in a difficult situation. It is no longer clear in law if parents can override the refusal of a competent child; it may well contravene their rights under the Human Rights Act 1998 and, in Scotland, possibly the Children (Scotland) Act 1995 as well. You should therefore consider getting legal advice with a view to approaching the court for a decision, particularly if the child’s refusal puts them at risk of serious harm or death.

If 16 or 17 and has capacity (remember there is a rebuttable presumption of capacity)
If a 16 or 17-year-old with capacity refuses consent for a procedure than that should normally be respected. The law is not clear whether or not parents are able to override their refusal and in most situations the procedure is unlikely to remain in their best interests given their objections. If it is felt that it is still in their best interests despite their refusal (particularly if it puts them at risk of serious harm or death) then you should consider getting legal advice with a view to approaching the court for a decision. There are several examples of courts overruling children under 18 who refuse life-saving treatment.

If 16 or 17 and lacks capacity
If the young person objects then their views should be taken into account and given appropriate weight according to their level of understanding but they are not determinative and someone with PR can overrule them if the procedure is still felt to be in the young person’s best interests despite their objections.

 

Basic principles for consent in children and young people

  1. Single consenter: Consent only needs to be given by one person. An exceptions to this is male circumcision in a non-competent child (consent is required from all those with PR). In general you should be very wary of relying on consent from one person if you are aware that someone else with PR objects.
  2. Countersigning consent forms:  If a competent child of less than 16 has given consent him/herself then it is good practice for someone with PR to countersign the consent form to show that they are aware of and support the child's decision. Be aware though that in this situation the adult with PR is supporting but not making the decision.* If they wish to, someone with PR can also countersign when a 16 or 17-year-old with capacity has given consent.
  3. Countersigning to show assent: Where someone with PR has made a decision about medical treatment a child may wish to countersign the consent form to signify their involvement in the discussion and their agreement, even though they have not been the decision-maker (i.e their assent).* This is a good way of empowering children who will soon be making their own decisions.
  4. Maximise autonomy: You should endeavour to maximise a child or young person's ability to be part of discussions and also to be the decision-maker where relevant as above. This may include using age-appropriate language, visual aids, other communication aids, or delaying certain decisions until the child can understand and decide for him/herself. The child’s views should be given weight according to their level of understanding.
  5. Minimise future restriction: Where children are not able to decide for themselves, healthcare professionals and parents must act in a child's best interests and should generally choose options that are the least restrictive of future activities and choices.
  6. Competence and capacity are decision-specific: Some decisions are more straightforward than others (e.g. giving consent for a simple day case procedure vs for a bone marrow transplant) and a child's ability may vary according to the situation (e.g. illness or a stressful situation). Competence/capacity (see Definitions and Distinctions) should therefore be assessed for each decision rather than simply labelling someone as ‘competent' or ‘capacitous’ and assuming they are then able to make all decisions.
  7. Advance treatment decisions & Lasting Power of Attorney (LPA): Only adults (i.e. over 18 years) can appoint an LPA or make legally-binding decisions to refuse medical treatment.
  8. Emergency situation: Treatment to save life or prevent serious harm can be given without consent in an emergency situation if it is in the child’s best interests. This can include where no one is available to give timely consent, or in the face of an objection whose validity is not clear.

*This distinction is not clear on many consent forms. Great Ormond Street Hospital has designed specific paediatric consent forms that can be adapted for use by other Trusts/Boards. Contact hugo.wellesley@gosh.nhs.uk for details.

Further reading

For more information on consent in children and young people, please refer to these excellent resources:

British Medical Association (BMA) – Parental responsibility 2008
Parental responsibility is a legal concept that consists of the rights, duties, powers, responsibilities and authority that most parents have in respect of their children.

British Medical Association (BMA) – Children and young people ethics toolkit 2010
A very useful series of guidance cards covering many areas including competence, consent, parental responsibility, best interests, refusal, restraint and research.

GMC – 0-18 Guidance for all doctors 2007
A clear summary of a doctor’s duties when working with children – covers similar areas to the above but also communication, confidentiality and child protection. The guidance found in this document is binding on all doctors in the UK.

McCombe K, Bogod D. Paternalism and consent: has the law finally caught up with the profession? Anaesthesia 2015;70:1016–1019
A good summary of the impact of the Montgomery case at the Supreme Court in 2015, and how it has clarified the law to bring it into line with pre-existing professional guidance.

We have suggested some additional educational resources on consent and ethical issues in our Resources section.

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