Children and consent to medical treatment can be particularly complex. It is important to treat each case or situation on an individual basis.
Under UK Law a child moves into Official Adulthood at the point of their eighteenth birthday (Children Act 1989 s105). Therefore, as far as health care is concerned, an 18 year old will be accepted as an autonomous adult unless there is a valid reason for this not to be the case. 16 and 17 year-olds can also make a limited number of independent decisions about their health without the involvement of their parents.
The right of younger children to give their independent consent to medical treatment or make decisions about their health will depend on their competence to do so – not their age. The age of a child is a crude measure which cannot be relied upon to indicate their competence to make decisions.
In a landmark case, Victoria Gillick challenged Department of Health Guidance which enabled doctors to provide contraceptive advice and treatment to girls under 16 without their parents’ knowledge. The subsequent 1983 judgement set out criteria for establishing whether a child under 16 has the capacity to provide consent to treatment which came to be known as the “Gillick Test”.
It was determined that children can consent if they have sufficient understanding and intelligence to fully understand what is involved in a proposed treatment or intervention including its purpose, nature, likely effects and risks, chances of success and the availability of other options.
If a child passes the Gillick Test this means they are considered “Gillick Competent” and, as such, able/permitted to consent to the medical treatment or intervention for which their consent is required – independent of the child’s parents. This consent is only valid if given voluntarily and not under undue influence or pressure by anyone else – as with adults who give consent.
There is no lower age limit for Gillick Competence to be applied.
It is important, as mentioned above, to treat each case or situation concerning children and consent on an individual basis because, while a child might have the capacity to consent to some treatments, they may not (have the capacity to consent) to others. Each individual decision requires assessment of a child’s Gillick Competence – no earlier consent can be brought forward, relied upon and applied. The understanding required for different interventions and the associated ramifications can vary from one day to the next and from situation to situation. In addition, capacity can fluctuate – particularly where mental health conditions are a factor.
The consent of a person with parental responsibility for the child is required in order to proceed with treatment in any case where that child does not pass the Gillick Test for Competence.
In all cases, there is the ever-present duty of care to keep the child’s best interests at the heart of decisions about their health care. To this end, the child or young person should always be involved in the decision-making process as far as possible.