CONSENT AND CHILDREN: minors
CHILDREN ACT 1989
Children can’t consent to medical treatment.
Under the Children Act 1989, Section 105(1) – a “child” is a person under 18
However: MCA applies to people over 16 (section 2(5)) in all but a
few respects, such as the ability to make and advance decision Family Law
Reform Act 1989
Additionally, the Family Law Reform Act 1898 applies to children aged
between 16 and17.
Section 8 provides a statutory presumption in favour of their capacity to consent
and provides that their consent will be as valid as if they were an adult, and it
will not be necessary to obtain parental consent.
The separate and combined effect of the MCA and the FLRA provisions is that
a child aged 16 or 17 is presumed capable of providing valid consent to their
medical treatment.
The Mental Capacity Act 2005 does not apply to persons under the age of 16.
The FLRA 1969 only provides for capacity to consent by a 16 or 17 year old.
THE ‘GILLICK-COMPETENT’ MINOR
Introduction
Following the decision of the House of Lords in the Gillick case, it is apparent
that some
children under sixteen (i.e., those sufficiently mature to understand the nature of
the treatment proposed) can consent at common law to be treated.
Parental ‘rights’ to act as proxies for their children – those with parental
responsibility (s.2 CA 1989) has rights, duties, powers and responsibilities
towards that child (s.3 CA 1989) this is based on welfare principles
You must apply gillick test for children under the age of 16.
Gillick test:
The test is: does the child have sufficient maturity to understand what is
proposed in the medical treatment? Can the child express her or his own wishes
about the medical treatment? In order for medical professionals to skip liability,
they must prove that the child is really competent.
Gillick: Fraser guidelines: gillick competency
A doctor can give contraceptive advice and treatment to an under-16:
‘provided he is satisfied on the following matters:
1. That the girl will understand his advice
, 2. That he cannot persuade her to inform her parents or to allow him to
inform the parents that she is seeking contraceptive advice
3. That she is very likely to continue having sexual intercourse with or
without treatment
4. That unless she receive contraceptive advice or treatment her
physical or mental health or both are likely to suffer
5. That her best interests require him to give her contraceptive advice,
treatment or both without parental consent’
Lord scarman: they need to fully understand the nature of the treatment. For children under
16.
Adults: Heart of england NHS trust v JB [2014] patient must understand the nature, purpose
and effect of the proposed treatment.
More restrictive approach towards children
Welfare shall be the paramount consideration- s.1 CA 1989
Decision made by the child must be in his/her best interests.
Lord fraser- ‘best interests require [medical professional] to give contraceptive advice.
Lord scarman-medical professional is satisfied ‘that her circumstances are such that he
ought to proceed without parental consent.’
In the overwhelming majority of cases, the best judges of child’s welfare are his or her
parents’ (lord fraser, 173).
Axon v secretary of state for health [2006] : axon sough a declaration that a medical
professionals duty of confidentially does not etend to keeping information about a child’s
contraceptive treatment, treatment of STIs or abortion from that child’s parent or in respect
of abortion, the DOH guidelines which allow abortion to provide to comp tent children were
unlawful.
However, the court dismissed her declaration and
Approved the approach in gillick: a child who has sufficient maturity to understand what is
involved can receive treatment without parental approval or knowledge. However, the
medical professional should take every effort to persuade the child to involve parents.
Axon and beyond
Axon confirmed that the principles from gillick were compliant with human rights
obligations:
1. The child’s Art.8 right to privacy increases in proportion to their competence
2. The parent’s Art.8 to family life decreases in proportion to their child’s competence
An NHS Trust v A, B and C [2014]- 13yr old girl requested an abortion.
She understood the options open to her, the risks of each their implications- she had
capacity.
Mostyn J did not go on to consider whether abortion was in her best interests:
1. Recognises that capacity and best interests are mutually exclusive legal bases?
CHILDREN ACT 1989
Children can’t consent to medical treatment.
Under the Children Act 1989, Section 105(1) – a “child” is a person under 18
However: MCA applies to people over 16 (section 2(5)) in all but a
few respects, such as the ability to make and advance decision Family Law
Reform Act 1989
Additionally, the Family Law Reform Act 1898 applies to children aged
between 16 and17.
Section 8 provides a statutory presumption in favour of their capacity to consent
and provides that their consent will be as valid as if they were an adult, and it
will not be necessary to obtain parental consent.
The separate and combined effect of the MCA and the FLRA provisions is that
a child aged 16 or 17 is presumed capable of providing valid consent to their
medical treatment.
The Mental Capacity Act 2005 does not apply to persons under the age of 16.
The FLRA 1969 only provides for capacity to consent by a 16 or 17 year old.
THE ‘GILLICK-COMPETENT’ MINOR
Introduction
Following the decision of the House of Lords in the Gillick case, it is apparent
that some
children under sixteen (i.e., those sufficiently mature to understand the nature of
the treatment proposed) can consent at common law to be treated.
Parental ‘rights’ to act as proxies for their children – those with parental
responsibility (s.2 CA 1989) has rights, duties, powers and responsibilities
towards that child (s.3 CA 1989) this is based on welfare principles
You must apply gillick test for children under the age of 16.
Gillick test:
The test is: does the child have sufficient maturity to understand what is
proposed in the medical treatment? Can the child express her or his own wishes
about the medical treatment? In order for medical professionals to skip liability,
they must prove that the child is really competent.
Gillick: Fraser guidelines: gillick competency
A doctor can give contraceptive advice and treatment to an under-16:
‘provided he is satisfied on the following matters:
1. That the girl will understand his advice
, 2. That he cannot persuade her to inform her parents or to allow him to
inform the parents that she is seeking contraceptive advice
3. That she is very likely to continue having sexual intercourse with or
without treatment
4. That unless she receive contraceptive advice or treatment her
physical or mental health or both are likely to suffer
5. That her best interests require him to give her contraceptive advice,
treatment or both without parental consent’
Lord scarman: they need to fully understand the nature of the treatment. For children under
16.
Adults: Heart of england NHS trust v JB [2014] patient must understand the nature, purpose
and effect of the proposed treatment.
More restrictive approach towards children
Welfare shall be the paramount consideration- s.1 CA 1989
Decision made by the child must be in his/her best interests.
Lord fraser- ‘best interests require [medical professional] to give contraceptive advice.
Lord scarman-medical professional is satisfied ‘that her circumstances are such that he
ought to proceed without parental consent.’
In the overwhelming majority of cases, the best judges of child’s welfare are his or her
parents’ (lord fraser, 173).
Axon v secretary of state for health [2006] : axon sough a declaration that a medical
professionals duty of confidentially does not etend to keeping information about a child’s
contraceptive treatment, treatment of STIs or abortion from that child’s parent or in respect
of abortion, the DOH guidelines which allow abortion to provide to comp tent children were
unlawful.
However, the court dismissed her declaration and
Approved the approach in gillick: a child who has sufficient maturity to understand what is
involved can receive treatment without parental approval or knowledge. However, the
medical professional should take every effort to persuade the child to involve parents.
Axon and beyond
Axon confirmed that the principles from gillick were compliant with human rights
obligations:
1. The child’s Art.8 right to privacy increases in proportion to their competence
2. The parent’s Art.8 to family life decreases in proportion to their child’s competence
An NHS Trust v A, B and C [2014]- 13yr old girl requested an abortion.
She understood the options open to her, the risks of each their implications- she had
capacity.
Mostyn J did not go on to consider whether abortion was in her best interests:
1. Recognises that capacity and best interests are mutually exclusive legal bases?
