Consent To Treatment In Children

English law necessitates that before any medical professional can examine or treat a patient, they must obtain informed consent to do so. ¹
Informed consent generally requires:

• The doctor to disclose relevant information regarding the intervention
• The patient to be competent to be able to make a decision
• The patient decides voluntarily

When obtaining consent, the doctor must establish whether the child is legally competent (in legal terms, 'have capacity' to give consent). If the child is deemed not legally competent, consent will need to be obtained from someone with parental responsibility, unless it is an emergency.²The legal position differs, depending on whether the young person is aged over or under 16.

Once children reach the age of 16, they are presumed in law to be competent. In many respects they should be treated as adults, and can give consent for their own surgical and medical treatment. The Department of Health recommend that it is nevertheless good practice to encourage children of this age to involve their families in decisions about their care, unless it would not be in their interests to do so. If a competent child requests that confidentiality is maintained, this should be respected unless the doctor considers that failing to disclose information would result in significant harm to the child.

It should also be borne in mind that a child aged 16-18 cannot refuse treatment if it has been agreed by a person with parental responsibility or the Court, and it is in their best interests. This means they do not have the same status as adults. You mention this lower down.

Assessing Competence

Just because a child is over 16, this does not absolve the doctor from determining that they are indeed competent, as one would also do for adults. A competent person:

• Is able to understand and retain the information pertinent to the decision about their care
• Is able to use this information to consider whether or not they should consent to the intervention offered
• Is able to communicate their wishes

It should not be assumed that children with learning difficulties are unable to take competent decisions. This can sometimes be aided by presenting them with information in an appropriate way. If a child in this age group is deemed not competent, a person with parental responsibility would need to give consent. Once an individual has reached the age of 18, no-one can give consent on their behalf. If they are not competent, clinicians can provide treatment and care, providing this is in their best interests.¹

Children in this age group are not deemed to be automatically legally competent to give consent. The courts have determined that such children can be legally competent if they have "sufficient understanding and intelligence to enable him or her to understand fully what is proposed". This concept - now known as Gillick competency - initially arose in the case of Gillick v West Norfolk & Wisbech HA in 1986.³ The term Fraser competency is also used in this respect (Lord Fraser was the judge who ruled on the case). It used to be said that Victoria Gillick objected to the use of her name in this connection, but she has since denied it. Some authorities refer to Fraser competency when talking about contraception, and Gillick competency when talking about wider areas of consent.⁴ In many cases the two terms are used interchangeably.

Much will depend on the relationship of the clinician with the child and the family, and also to what intervention is being proposed. Competency is something that can be developed over time by presenting the child with information appropriate to their age and level of education, and this process may be a rewarding one in the management of children with long-term conditions that involve several therapeutic procedures or investigations. The emphasis in the Department of Health's guidance is that the families of children in this age group should be involved in decisions about their care, unless there is a very good reason for not doing so. If however, a competent child under the age of 16 is insistent that their family should not be involved, their right to confidentiality must be respected, unless such an approach would put them at serious risk of harm.

If consent from someone with parental responsibility is required, only one individual needs to be approached. However, it is good practice to involve all those close to the child if possible. The Children Act 1989⁵ outlines who has parental responsibility. This includes:

• The child's parents if married to each other at the time of conception or birth
• The child's mother, but not father if they were not so married unless the father has acquired parental responsibility via a court order or a parental responsibility agreement, or the couple subsequently marry
• The child's legally appointed guardian - appointed either by a court or by a parent with parental responsibility in the event of their own death
• A person in whose favour a court has made a residence order concerning the child
• A local authority designated in a care order in respect of the child (but not where the child is being looked after under section 20 of the Children Act, also known as being 'accommodated' or in 'voluntary care')
• A local authority or other authorised person who holds an emergency protection order in respect of the child

Foster parents, grandparents and indeed parents under the age of sixteen do not automatically have parental responsibility. In the latter case, the individual needs to be deemed Gillick competent before they can give consent on behalf of their child.

Children who are wards of court will need to have their 'important steps' approved by the court. It is helpful to keep a copy of the ward papers with the medical records, as this will act as a guide as to what routine treatment can be offered without reference to the court.

Devolving Parental Responsibility

Parents are not with their children 24 hours a day, and there are times when parents might devolve the responsibility to consent to treatment to others - e.g. grandparents or childminders - for certain interventions such as emergency care and treatment of minor illnesses. Such consent does not need to be in writing, and the healthcare professional does not need to consult the parents, unless there is cause to believe parents' views would differ significantly.

Where there is no specific agreement between parents and a third party in any given situation, the third party can give consent providing it can be justified as being in the best interests of the child. An example of this would be a teacher accompanying a child to the Accident and Emergency Department for urgent treatment required after an accident at school.

The guidance concerning immunisation does not differ significantly from other interventions. Further details can be found in the Department of Health's 'Green Book' - Immunisation Against Infectious Disease.⁶ Basically, bringing the child for immunisation is seen as implied consent, and devolved responsibility does not have to be in writing. Important issues that do need to be considered however include whether the consent is valid (i.e. based on sufficient information to give informed consent), whether there is a reason to believe that the parents' views would differ from a third party bringing the child, and whether consent has been obtained on each occasion an immunisation is given. Signing a consent form is not obligatory, but a written record that the main issues have been covered does offer some insurance against future difficulties.

Even if a child is not competent to give consent, it is good practice to involve them as much as possible and make them feel they are part of the decision-making process. This can be helped by giving them age-appropriate information. This topic is of more relevance to secondary than primary care, but should be considered by all clinicians.

No-one is able to give valid consent

Examples would be a child brought to hospital needing emergency surgery after a road accident, an unaccompanied asylum seeker, or a child of parents who were not deemed competent to give consent (e.g. drug dependent or drunk). In such cases, treatment can be given, providing it is in the child's welfare, and the child would come to significant harm if treatment was withheld.

The clinician disagrees with the parents

In such cases, an application should be made to the court to decide, particularly if life-saving treatment is required. An emergency decision can often be obtained. If this is not possible, the treatment should be given if it is life-preserving. The appropriate defence body should be consulted. The situation may be reversed in that parents may wish a child to have a treatment which the clinician may feel is inappropriate. Again, an application for a court decision should be made. In such cases, the court will sometimes attempt to find a clinician who is prepared to give the treatment.¹

The parents fail to agree with each other

Only one individual with parental responsibility needs to consent. However, this is a legal minefield, and consensus should be obtained if possible.

Children do not agree with those with parental responsibility

If the child is competent and wishes to receive treatment, those with parental responsibility cannot over-ride them. If a competent child is refusing treatment, those with parental responsibility can consent, if the treatment is deemed to be in the child's interests. These matters often come to court and the court can override the decisions of both those with parental responsibility and the child.

Consent to non-therapeutic procedures

Examples would be bone marrow or organ donation. The automatic competence of 17 and 18 year olds does not apply here, and the competency tests should be applied to all children. If the child is not competent and those with parental responsibility give consent, they must do so if the intervention is in the interests of the donor. In cases where the parents of the donor and recipient are the same (i.e. sibs), advice should be sought from an independent assessor, a hospital ethics committee or a court.

Mental Disorders

The same principals should apply as for physical conditions, except additional legislation needs to be considered, such as the Mental Health Act 1993 and The Children Act 1989. This is another legal minefield which will be made even more complex when the Mental Capacity Act becomes law in April 2007. This will not affect younger children, but will apply to individuals over the age of 16. ^1,5,7

Research

The law differentiates between therapeutic research (e.g. an untested treatment which might be better than existing treatment) and non-therapeutic research (e.g. the taking of additional blood samples with no therapeutic benefit to the child). For therapeutic research, a competent individual, be it the child or a person with parental responsibility, can give consent. For non-therapeutic research, the procedure cannot go ahead if the child withholds consent, irrespective of their age and of the views of those with parental responsibility.⁸

The GMC's Good Medical Practice handbook has a section on obtaining consent from children or those with parental responsibility.⁹ Not surprisingly, it largely reflects the guidance from the Department of Health and current legislation, but its inclusion in the handbook is a useful assurance to clinicians that they are acting in accordance with their own registering body as well as legally. In December 2006 the GMC launched a draft document for consultation called 'Children and Young People:Doctors' Roles and Responsibilities' . This deals in great detail with such matters as the rights of children to be involved in their own care, issues surrounding confidentiality, assessing capacity, communication, child protection and sexual activity. The substantive document will be released once the consultation process has ended in February 2007.