Capacity, consent, and the medical treatment of your child

Someone with capacity and parental responsibility must consent to the medical treatment of a child. This article explains those terms.

Capacity and consent are important concepts in the UK—they determine your rights to accept or decline medical treatment. Treatment for your children is governed by the same rules, but you have a lot of responsibility.

The NHS pages on consent and consent for children are ok, but hopefully I can make it a bit clearer.

The general ethos of this is the same across the UK, but the exact legal framework will be different between England and Wales, Scotland, and Northern Ireland. If you’re reading this article for any purpose other than general interest, please check with a lawyer.

Finally bit of blurb: I write about “you” and “your child”—the link is parental responsibility (see “What about children without capacity”). I also talk about a “medical person”, because that’s a slightly less cumbersome phrase than healthcare professional, and because some of this might apply to healthcare amateurs as well (for example, a teacher giving your child a plaster).

What are capacity and consent?

Let’s take the adult case.

Before anyone can do something medical to you, they have to get consent (if they don’t, they’re wide open to charges of assault). Ideally the consent is from you, and it could be written, verbal, or something else (for example a nod or hand gesture). You are given the information you need to make a decision about the treatment proposed, and you decide whether you want it or not.

Before you can give consent, the person treating you has to make sure you have the capacity to make that decision. To have capacity, you have to be able to:

  • Understand the information given to you.
  • Remember that information.
  • Be able to weigh up the information and make a decision.
  • Be able to communicate that decision.

You can’t give consent without capacity. Common reasons to lack capacity as an adult include unconsciousness, impaired consciousness through drink and drugs or some injury, severe learning disabilities, and some mental health conditions.

If you don’t have capacity, the medical person will act in your “best interests”, blending their medical knowledge with what they know of your personal beliefs and preferences. To take a well-known example, if they know you are a Jehovah’s Witness, your “best interests” would not include a blood transfusion. If at all possible, the decision will be deferred until you have capacity again (it’s the route of least legal difficulty…)

If you have capacity but refuse to give consent, the medical person has some options available under the Mental Health Act. But that’s getting off topic.

Can children have capacity?

Yup.

At the age of sixteen a young person is presumed to have or not have capacity all by themselves—you have no role except in England and Wales where a 16, 17 or 18-year old without capacity can be counted as a child (see next section). In Scotland anyone over 16 is an adult in terms of legal capacity, so if your child falls into that bracket and does not have capacity, you have no more influence than any other family member. [The “in terms of legal capacity” was added to that last sentence after information from Roibeard that 17 and 18-year-olds are still children in other bits of Scottish law. See the comments for more on that.]

Below the age of 16, a young person can still have capacity if they meet the four bulleted criteria above.

If a young person has capacity to make a decision and doesn’t want you to be told, then that decision is almost always final (this generally causes tension when it’s about contraception). The General Medical Council’s advice for healthcare professionals is:

You should encourage young people to involve their parents in making important decisions, but you should usually abide by any decision they have the capacity to make themselves (see paragraphs 30 to 33 and paragraphs 46 to 52). You should also consider involving other members of the multi-disciplinary team, an independent advocate or a named or designated doctor for child protection if their involvement would help young people in making decisions. General Medical Council guidance on working with young people, paragraph 19

The “almost always” exceptions are: when there’s an overriding public interest in disclosure; when disclosure is required by law; and when the medical person judges that disclosure is in the best interests of the young person and that young person does not have the maturity or understanding to make the disclosure decision themselves.

Those exceptions generally cover instances of child abuse.

What about children without capacity?

To save the life of your child (or to prevent severe deterioration of health) emergency treatment can be given without consent. This is covered under the “in the best interests” stuff we talked over earlier.

Hopefully that doesn’t apply, so it’s now down to you, as an adult with parental responsibilities. You might have parental responsibilities because:

  • You’re the child’s (biological) mum.
  • You’re the child’s dad, and were either married to mum at the birth of the child or have jumped through some legal hoops to get parental responsibilities after that point.
  • You’re a legally appointed guardian for the child.
  • You’ve been given responsibility by a care, residence, or emergency protection order.

The medical person only needs to find one person with parental responsibility for the child, who has capacity themselves, and get consent from them. Whilst is makes things easier if, say, both parents give consent, only one person’s approval is strictly required.

Any final scenarios worth mentioning?

Just a few.

Children under the age of 13 cannot consent to sexual activity (consent being used in the same meaning, but different body of law). Therefore if your particularly mature 12-year-old has the capacity to ask for contraception from their GP, it will still count as an instance where disclosure is required by law.

In Scotland, you cannot overrule a medical decision made by your child if they have capacity. In England, Wales and Northern Ireland it’s more complex, but the law will only support you if the treatment your child is refusing is in their best interests.

If your child lacks capacity and you refuse treatment that is in their best interests, a medical person can appeal to a judge to overrule you. Note that this can apply if you refuse immunisations for your child—see here.

Is that a segue?

Certainly is!

See you next Monday for a post on immunisations.

 

 

 

2 thoughts on “Capacity, consent, and the medical treatment of your child

  • 2015-01-12 at 12:56
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    “In Scotland anyone over 16 is an adult” – not quite always. There may be other discrepancies, but the one of which I know is that The Protection of Vulnerable Groups (Scotland) Act 2007, 97 General interpretation has “(1)In this Act—… “child” means an individual under the age of 18”.

    So for PVGs/Disclosures children are still under 18, even if they have capacity.

  • 2015-01-14 at 10:08
    Permalink

    Interesting. I was going off the GMC guidance and the Age of Legal Capacity (Scotland) Act 1991. I’ll edit the article to clarify!

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