It is a well known principle in English law that a competent adult’s refusal to treatment cannot be overridden – no matter how unwise or incomprehensible that decision may be. The same cannot always be said in relation to children, who, as a society we consider must be afforded an added protection against their own unwise or irrational decisions.

Starting with the very basics, who is considered to be a child? Anyone under the age of 18 is a child in law. However, there is a distinction drawn between those under 16, who are referred to as “children,” and those of 16-17 years, who are termed “young persons.”

Save in an emergency, consent to treatment for a child or young person must be obtained from one of the sources below:
a. The child themselves, if they are deemed to have capacity
b. Someone with parental responsibility
c. The Court.

Where circumstances are of such urgency, healthcare professionals can treat to save life or to prevent a serious and irreversible deterioration in a child or young person’s condition in the absence of any such authority. It is important to note, however, that as soon as the “emergency” has passed, appropriate authority must be obtained to continue treatment and that in reality, the scope of “urgent” treatment is relatively narrow.

Who Can Provide Valid Consent?
As with adults, if a child or young person has capacity, they can provide valid consent to treatment.
Children

For those under the age of 16, capacity is determined by the Gillick test. This test was created in a case concerning whether doctors could provide contraception to children without their parents’ consent. The House of Lords fashioned a standard which children must reach to be considered as having capacity to consent to the treatment:

The child must be of sufficient maturity and understanding to take a decision of the seriousness in question.

Cases which have followed have refined this test, acknowledging that what is required is: “not merely an ability to understand the nature of the proposed treatment...but a full understanding and appreciation of the consequences both of the treatment in terms of intended and possible side effects and...the anticipated consequences of a failure to treat.”

Young Persons
Capacity for young persons is determined under the same statutory test as for adults; namely, ss.2-3 of the Mental Capacity Act 2005 - Does the young person have a temporary or permanent impairment or disturbance in the functioning of their mind or brain which means they are incapable of making the decision about treatment? Further,
a. Can they understand the information relevant to the decision?
b. Can they retain the information?
c. Can they use or weigh that information in the balance?
d. Can they communicate their decision?

Parliament has recognised in statute that the older a child gets, the greater the weight that should be attributed to their views and therefore if a young person has capacity, their consent alone is sufficient authority without recourse to their parents.

Parental Responsibility
Persons with parental responsibility are able to provide consent for children and young persons. Parental responsibility is a concept which is defined under the Children Act 1989. Broadly speaking it extends to the mother, father (if married to the mother, or after 1 December 2003 if named on the child’s birth certificate, or if so ordered by the Court) or any person granted parental responsibility by the Court.

Through the Code of Practice to the Mental Health Act, Government has indicated that parental responsibility will only provide sufficient authority if it is over a decision within the “zone of parental control.” The zone requires the decision to be one that a parent would be expected to make, having regard to what is considered normal practice in our society and to any relevant human rights’ decisions of the Court. Outside this zone, decisions should be referred to the Court.

Unless the treatment in question is irreversible, the consent of one person with parental responsibility is sufficient. In relation to irreversible treatment, for example circumcision or vaccination, parental agreement is required. If consensus cannot be reached, the decision should be referred to the Court.

The Court
Ultimately, the Court can provide consent to any treatment decisions.

Which Refusal Counts?
The legal framework is weighted in favour of treatment for children.

Upon a strict interpretation of the law, a person with parental responsibility or the Court can override a competent child or young person’s refusal of treatment. In practice, it may be very difficult to force treatment upon a competent and refusing child or young person depending upon the precise treatment requirements. Such practical considerations should be taken into account where the healthcare professional is considering treating with parental consent in the face of a competent refusal by the child or young person.

The current legal framework upon which this anomaly is based is a series of cases known as the “refusals” cases. It is important to note that these cases were decided before the Human Rights Act 1998 came into force, and the principles which they set out have not been tested in Court since this Act came into force.

Article 8 of the European Convention of Human Rights provides that:“Everyone has the right to respect for his private and family life, his home and his correspondence.”

However, this right can be interfered with if it is a necessary and proportionate interference to protect the health or morals of the child. It follows that a child or young person who has capacity and is refusing treatment, should only be overruled where that interference is proportionate and necessary. Historically, it has been considered that children and young persons have limited ability to protect their interests and that they should be prevented from being deprived of care which, objectively, is in their best interests.

Nonetheless, it is generally accepted that there is a trend towards increasing autonomy the older the child or young person gets. Consequently where a child or young person with capacity is refusing treatment, healthcare professionals should proceed with caution when relying upon parental consent and consideration should be given to an application to Court.
Summary

Consent for children and young persons is not a simple concept and healthcare professionals should ensure that rigorous evaluations of capacity are undertaken and comprehensively recorded. If urgent treatment is required to save life or prevent a serious and irreversible deterioration, healthcare professionals can treat whilst long-term decisions are appropriately considered.