The competent child

In Scotland, a child or young person below the age of 16 years has the capacity to consent to medical treatment so long as the medical practitioner attending him or her is of the opinion that he or she understands the nature and consequences of the treatment. The position is laid down in statute.

In England the starting position is generally the same. The law is laid down in the well publicised 1985 House of Lords decision in the case of Gillick. The House of Lords stated that children under the age of 16 years can consent to the receiving of medical treatment, independent of their parents, if they are judged to be competent according to a medical practitioner. Gillick was the first high-profile case dealing with medical treatment of children, with Mrs Gillick becoming a bit of a celebrity. Mrs Gillick asked the court to prevent doctors from prescribing contraception to girls under 16 (she was a mother of 10 with five daughters) without informing the parents. This was ultimately rejected by the House of Lords.

Then there is the issue of refusal of medical treatment. The English courts have been reluctant to grant children the right to refuse medical treatment. Effectively, the case law has developed in such a way that children are allowed to make decisions about medical treatment, only if the decisions they make are in their best interests (so children can consent to but not refuse treatment).

Perhaps the tide is turning, or at least within the medical profession. Since our last e-bulletin, it has been reported within the press that 15 year-old Joshua McAulay refused a blood transfusion on the basis of his religious beliefs. His mother supported his decision. The medical practitioners respected his decision. The hospital could have asked the Courts to determine the issue, as had happened 10 years earlier in the case of Re E. In that case, the High Court overrode the refusal of a 15 year-old boy to refuse of a blood transfusion.

Although Scotland lacks case law in this area, there are indications that the position is different in this jurisdiction. For example, the Scottish Law Commission, the commentators and the view of the judge in the only relevant reported case (Houston, applicant in 1996), all share the view that it would be illogical to grant children the right to make decisions about medical treatment on the one hand while allowing parents or the courts to override decisions on the other.

The incompetent child

When a child is not competent to make medical decisions, the right to make a decision lies generally with the parents. When parents are unable to agree upon treatment, the decision rests with the courts. An example is the 2003 case of Re C & F (Children). In that case two sets of parents were arguing over whether the children should receive the much debated MMR vaccination. The courts will make a decision based on the child's best interests (for those who are curious, the court decided that it was in the children's best interests to receive the vaccination).

When the medical practitioners are concerned that a decision being made by the parents is not in the child's best interests the courts will interfere. For example, in the 2000 case of Re A (children) (conjoined twins: surgical separation) (2000). The parents of conjoined twins Mary and Jodie were devout Catholics. They refused to consent to surgical separation. An application was made to the court to authorise that the surgery could proceed. The authorisation was granted.

There are occasions when the parent or guardian holding parental responsibilities in relation to the child may not be available to provide consent. When a medical procedure cannot be delayed until parental consent is obtained the Children (Scotland) Act 1995 permits a person who has care or control of the child (but no parental rights or responsibilities) to do what is reasonable in all the circumstances to safeguard the child's health, development and welfare. Thus, a father, a step- parent or another relative with no parental rights and responsibilities could provide consent. A childminder or a parent of the child's friend who is looking after the child after school could provide consent. Consent can be provided in relation to any surgical, medical or dental treatment/ procedure where the child cannot give consent on his or her own behalf. The person cannot give consent if aware that the child's parent would refuse the treatment.

A similar provision exists in England within the Children Act 1989; a person who does not have parental responsibility for a child but has care of the child may do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child's welfare.

Getting it right

The issue of consent to medical treatment is not always a straightforward one. It is also an issue which can be emotionally charged. However, the medical professionals must ensure that consent is properly obtained; otherwise the door will be opened to a civil claim for battery or an assault charge.

Of course, this article has focused on cases where the child's life is in danger. These are, generally speaking, the cases which make it to the courtroom. This suggests that in everyday practice children, parents, the medical profession, and temporary carers of children, co-operate harmoniously or that the issue of consent is not really considered by any of the parties.