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The full consent of a patient is particularly important in relation to medical treatment, as performing a medical procedure without appropriate consent can leave medical staff open to potential claims from patients – and possibly criminal proceedings for battery. The law around it is complex, and particular problems arise when the patient is under eighteen years of age.

Parental consent and knowledge

Traditionally, the law said that children were unable to give or refuse consent to treatment, and that this needed to be given by a parent or guardian. In 1969, the Family Reform Act stated that children aged 16 or 17 were presumed to be capable of consenting to their own treatment, although it still decreed that children under 16 were not capable of consenting. However, in Gillick v West Norfolk and Wisbech AHA [1986] Victoria Gillick, a mother of five daughters who were all under 16 at the time, challenged a decision by the Department of Health to provide contraceptive advice to girls below 16 without the consent or knowledge of their parents. The court held that this was not unlawful, provided the girl had sufficient maturity and intelligence to understand the nature and potential consequences of the treatment being proposed.

Consent to treatment

This created circumstances in which a child under the age of 18 could apparently give consent for treatment, even if the parents disagreed with the decision, provided he or she was competent enough to make the decision by the test set out in the Gillick case. Any child meeting the criteria in the Gillick case is sometimes referred to as ‘Gillick-competent’. There is, however, a clear distinction involved when the Gillick-competent child wishes to refuse (rather than agree to) consent for a procedure. In this situation, anyone who has parental responsibility for the child is able to overrule the child’s decision and give consent on his or her behalf. Only one person with parental responsibility is required to agree to the treatment in order for it to go ahead. This could lead to a situation in which both the child and one parent do not want the treatment and yet it goes ahead because of the consent of the other parent. Reasonable force may be used to treat a non-consenting child, even if they are competent under the Gillick test.

In practice, medical staff are likely to be reluctant to force a non-consenting child to undergo a procedure if the case is not a medical emergency. The courts have recommended that, in important matters, if the parents disagree on whether to consent to the treatment, the matter should be referred to the court to decide. Therefore it is possible that a procedure carried out with the consent of only one parent and the strong disagreement of the other could be open to legal challenge.

In the event of a medical emergency, if immediate treatment is required to save the life and preserve the health of the child, the medical staff do not need to obtain the consent of either the child or those with parental responsibility, if there is insufficient time to do so. Provided there were no advance instructions not to carry out treatment, it would be difficult to be critical of this decision.

In summary, the law of consent in relation to children is a complex area and one which may be open to legal challenge in the future, particularly as the courts appear to be moving in the direction of allowing greater autonomy to a child who is capable, under the Gillick test, of consenting to treatment.

For more information please contact us by emailing Joanna Laidlaw at [email protected].