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_Children - which decision counts_ Part One_ Medical Treatment Decisions
_Children - which decision counts_ Part One_ Medical Treatment Decisions
01/04/2022
Introduction
The law regarding decision-making for children and young people is complicated and
multi-faceted – spanning a number of different statutes and found in a plethora of cases
from first-instance decisions, through the Court of Appeal, to the Supreme and European Hannah Taylor
Courts. It is also different for different types of decisions – for example, those relating to PARTNER
medical treatment, to admission and treatment under the Mental Health Act 1983 and to
deprivation of liberty. This article can only be a summary of what is necessarily an
extremely complex topic. It is part one of a two-part series. This article considers medical
treatment decisions. The second article will focus on deprivation of liberty.
Anyone under the age of 18 is a child. 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:
1. the child/young person, if they are competent/have capacity to make that decision;
or
2. where it is a decision within their scope, someone with “parental responsibility”; or
3. the court.
Where circumstances are of such urgency that failure to treat the child or young person
would likely lead to their death or to severe or permanent injury, professionals can provide
emergency treatment. The treatment must be no more than is necessary and be in the best
interests of the child or young person. However, as soon as the “emergency” has passed,
appropriate authority/consent must be obtained to continue treatment. In reality, the scope
of “urgent” treatment is relatively narrow. In the context of Gillick-competent children or
young persons with capacity the Court of Appeal has also recently considered what
constitutes an “emergency”. It has expressed doubt as to whether, in reality, if a
complication, deterioration or progression of a condition is foreseeable, whether it is an
emergency when it materialises. If clinicians consider that there is a likelihood of an
emergency arising, they should seek urgent legal advice to consider whether a pre-emptive
authorisation for any treatment required if that emergency does materialise [3].
For children, the Gillick test is used to determine whether they are competent to make the
decision. This test was created by the then House of Lords in a case concerning whether
doctors could provide contraception to children without their parents’ consent:
"The child must be of sufficient maturity and understanding to take a decision of the
seriousness in question." [4]
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.” [5]
“… the question as to whether a person under the age of 16 is Gillick competent to make
the relevant decision will depend on the nature of the treatment proposed as well as that
person's individual characteristics. The assessment is necessarily an individual one. Where
the decision is significant and life changing then there is a greater onus to ensure that the
child understands and is able to weigh the information.” [6]
There are some decisions where there is an age-requirement set down in statute. Outside of
that category of decisions, the courts have avoided identifying “arbitrary” age-limits at
which a child could or could not provide consent. Instead, recognising that the particular
circumstances will need to be carefully considered in each case. [7]
It is generally accepted that the closer the child is to 16, there is a stronger expectation that
healthcare professionals should be assessing both Gillick-competence and capacity under
the Mental Capacity Act 2005 (the MCA).
The Test
Capacity for young persons is determined by the same statutory test as for adults; namely,
ss.2-3 of the MCA. 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? Can they:
If a young person has capacity, their consent alone is sufficient authority for the treatment.
It is not necessary to obtain consent from a person with parental responsibility.
According to the courts, there is. The former concerns the normal development of a child
and is within the realm of child/adolescent psychology; whilst the latter derives from an
impairment or disturbance in the functioning of the mind or brain and is within the realm of
psychiatry. [10]
biological mother,
father (if married to the mother at the time of birth, 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 [12].
A Local Authority that is granted a care order gains parental responsibility [13].
A person with parental responsibility cannot delegate it to another person; but they can
arrange for some or all of the responsibility to be met by others on their behalf [14].
Can more than one person have parental responsibility at the same time?
More than one person can have parental responsibility at any one time [15]. Simply
because another person acquires parental responsibility, it doesn’t mean that a person who
previously had parental responsibility ceases to have it [16].
Each person with parental responsibility can act alone and without the other person(s) with
parental responsibility (unless the law requires the consent of more than one/all of those
with parental responsibility for a particular decision) [17].
It will not be appropriate, however, to rely on consent of one person with parental
responsibility if another person with parental responsibility strongly disagrees with the
decision. If consensus cannot be reached, the decision should be referred to the court.
Are there any circumstances where one person with parental responsibility can
“override” another person with parental responsibility?
A Local Authority with parental responsibility is able to “determine the extent to which a
parent may meet his parental responsibility” for the child [18], as long as the Local
Authority is satisfied that it is necessary to do so to safeguard or promote the child’s
welfare [19].
In our view, it is good practice for a Local Authority exercising parental responsibility to
reasonably consult with any others who hold parental responsibility. Where there is a
dispute between the Local Authority and parents, there should be consideration of whether
the decision should be referred to the court for determination [20].
Consent from someone with parental responsibility is only sufficient authority if the
decision is one which is within the “scope of parental responsibility” [21].
There are two questions to determine if a decision is within the “scope of parental
responsibility”:
and
2. Are there any factors that might undermine the validity of this particular person's
parental consent?
The Court of Appeal has indicated that a child or young person's disabilities can impact
what would fall within the scope of parental responsibility.
If the decision is one which a person with parental responsibility would not reasonably be
expected to make, or if relying on consent from that person with parental responsibility
would not be appropriate, the decision should be referred to the court.
Are there limits on the “type” of decision a Local Authority with parental responsibility
can make?
“too great a magnitude to be determined without the guidance of the court and without all
of those with parental responsibility having an opportunity to express their view as part of
the decision-making process.” [22]
What is the role of those with parental responsibility, where a child is competent or a
young person has capacity?
Those with parental responsibility for the child or young person should generally be
consulted in medical treatment decisions. [25]
The ability of a person with parental responsibility to provide consent doesn’t “disappear”
when a child achieves Gillick-competence or a young person capacity. However, it is
curtailed. The court has recognised that parental responsibility “is a dwindling right which
the courts will hesitate to enforce against the wishes of the child.” [26]
As with adults, a young person or child may have capacity (within the meaning of the MCA
2005)/be Gillick-competent to make a decision about treatment/care, but be unable to
provide valid consent because they are overwhelmed/unduly influenced and/or coerced.
For young people who lack capacity to make a treatment decision in accordance with the
MCA, a person with parental responsibility can provide consent on their behalf. This means
that 16 and 17 year olds are distinct from adults under the MCA; insofar as consent can be
provided on their behalf by someone with parental responsibility, where the young person
is incapable.
Alternatively, it is possible for treatment decisions to be taken in their best interests in
accordance with the framework laid down in s.4 MCA; this is the same framework that is
applicable to adults who lack capacity.
Professionals should consider whether the MCA best interest framework is the most
appropriate mechanism taking into account the wider circumstances; or whether it is
appropriate to rely upon consent of someone with parental responsibility (which will, in
turn, depend upon whether it is a decision which falls within the scope of parental
responsibility for that young person and that person with parental responsibility).
The Court
Ultimately, the court can provide consent to any treatment decision provided the treatment
is in the young person's or child's interests. It can also resolve any disputes as to whether
treatment is in the child/young person's interests.
Put simply, yes. Case law has re-affirmed that whilst a Gillick-competent child or a
capacitated young person has a power to provide consent, this is concurrent with the
power of a person with parental responsibility (or, indeed, the court). For decisions that fall
within the scope of parental responsibility, therefore, a professional could choose to not
seek the child or young person’s consent and simply turn to the person with parental
responsibility for authority. The position becomes murkier, however, where the child or
young person objects (see further below).
It would be inadvisable for practitioners to rely upon consent from a person with parental
responsibility, in the face of a Gillick-competent refusal from a child; without recourse to
the court.
With young persons, practitioners should not rely upon consent from a person with
parental responsibility to override a refusal from a capacitated young person.
This position is supported in the Code of Practice to the Mental Health Act 1983 which now
states that it would be inadvisable for practitioners to rely on the consent of a person with
parental responsibility to treat a young capacitated person or a competent child who has
refused the treatment. In such situations the court should be asked to provide consent to
the treatment. In relation to admission to hospital for treatment of mental disorder, the
Mental Health Act 1983 provides a statutory bar on relying upon consent from a person
with parental responsibility in the face of a refusal from a capacitated young person
(s.131(4)); this legislation appears to be indicative of the policy position of Government on
decisions for young persons.
Where a young person is capable under the MCA or a child is Gillick-competent, but cannot
give valid consent because they are overwhelmed/unduly influenced or coerced – and is
refusing, caution should be approached in relying upon the consent of a person with
parental responsibility to override that refusal.
The Court
The court can override the refusal of a Gillick-competent child/a capacitated young
person [28] and a person with parental responsibility; using the parens patrie powers under
the inherent jurisdiction. This is a significant and substantial safeguard for capacitated
young persons and Gillick-competent children that is not available to the court for
capacitated adults (unless the capacitated adult is overwhelmed or unduly influenced).
It means that, notwithstanding that a young person has capacity under the MCA or a child
is Gillick-competent, and is refusing the treatment; whilst the Court of Protection would
have no jurisdiction, a Judge sitting in the inherent jurisdiction of the High Court, could
overrule the young person's/child's refusal.
Case law confirms that to do so, the court would need to be satisfied that it is in the young
person's/child's best interests. The wishes of a capacitated young person or Gillick-
competent child are important; however they are not absolute and maybe outweighed by
other factors such as a right to life under Article 2 ECHR. The courts are expected to
undertake a balancing exercise between the wishes and feelings of the Gillick-competent
child/capacitated young person and any harm that the child/young person is at risk of
suffering by refusing the treatment. There is a predilection towards the wishes and feelings
of the child/young person, but not a presumption that they will be followed. They are not
determinative. A welfare assessment should be conducted. [29]
Case law has confirmed that the court can also overrule the consent of a Gllick-competent
child or capacitated young person [30]. We consider this would equally apply to overruling
the consent of a person with parental responsibility. This is, perhaps, a more unusual
circumstance – and possibly more likely with experimental or controversial treatments.
Summary
Consent for children and young persons is not a simple concept and professionals should
ensure that rigorous evaluations of capacity/competence are undertaken and
comprehensively recorded. If there is a true “emergency" and 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.
Treatment Decisions
How can we help?
Our children’s team are able to advise and support on the wide range of treatment
decisions – giving guidance and steer on complex questions of competence, capacity,
consent and refusals. We are experienced in the Inherent Jurisdiction of the High Court, the
Family Court and the Court of Protection – enabling us to advise clients on the whole
spectrum of proceedings that may be engaged.
Footnotes