Children – An Update on Consent to Medical Treatment and Deprivation of Liberty

Introduction

It is well established that children (young persons under the age of 18) can, in certain circumstances, provide or withhold consent to medical treatment.  The Family Law Reform Act 1969 tells us in no uncertain terms that young people aged 16 or 17 can consent to treatment but it has been held in the past that refusals by this group can be overridden by those with parental responsibility.  Whilst such a view is considered in most circles to be incompatible with the Human Rights Act 1998, uncertainty in practice remains. 

The best recent guidance for practitioners in this area is contained in Chapter 19 of the Mental Health Act (not MCA) Code of Practice as revised and which came into force in April 2015.  The situation in relation to deprivation of liberty is also dealt with in the Code and has been further discussed – post Cheshire West – in the High Court.

Treatment of children – 16-18 year olds and under 16s who are competent

Starting point: The MCA applies to people aged 16 or over, so young people must be assumed to have capacity to make the decision about a proposed admission to hospital and/or treatment unless it is established that they lack capacity, as is the case with adults.

Section 8 of the Family Law Reform Act 1969 means that young people aged 16 or 17 can consent to their medical treatment and to any ancillary procedures involved in that treatment, such as an anaesthetic. Accordingly, treatment can be given if the young person, who has capacity, gives valid consent.

Practical guidance to assessing a young person's capacity and a child's competence to make decisions:

 Practitioners should consider the following three questions:

• Has the child or young person been given the relevant information in an appropriate manner (such as age appropriate language)?
• Have all practicable steps been taken to help the child or young person make the decision? (For example, giving the person time to absorb the information and ensuring those with parental responsibility are available to support the child)
• Can the child or young person decide whether to consent, or not to consent, to the proposed intervention?

For a young person (over 16) to lack capacity to make a decision under the MCA, their inability must relate to an impairment of, or a disturbance in the functioning of, their mind or brain.  When assessing a young person’s capacity to make the decision in question, practitioners should be aware that in some cases a young person may be unable to make a decision for other reasons, for example a young person who is informed that they need to be admitted into hospital may, in the particular circumstances of the case, be unable to make a decision. This might be because they find themselves in an unfamiliar and novel situation, having never before been asked to absorb that type and quantity of information, or they are worrying about the implications of deciding one way or the other, either because of themselves or because of outside influences such as the wishes of parents.  Care must be given to help the young person understand all the necessary issues in these circumstances.  If the young person is not MCA incapacitated on these technical grounds, they may still be Gillick incompetent.

The role of the parent in consenting

The Mental Health Act Code of Practice clearly states that "Parental consent should not be relied upon when the child is competent or the young person has capacity to make the particular decision…. In relation to decisions about [the treatment of a 16-17 year old] it is inadvisable to rely on the consent of a person with parental responsibility to treat a young person who has capacity to make the decision and has refused the treatment. Similarly, in relation to children, it is not advisable to rely on the consent of a parent with parental responsibility to admit or treat a child who is competent to make the decision and does not consent to it. Although in the past the courts have found that a person with parental responsibility can overrule their child’s refusal, such decisions were made before the introduction of the HRA and since then court decisions concerning children and young people have given greater weight to their views."

The MHA Code also has the following guidance:

Whether a particular intervention can be undertaken on the basis of parental consent will need to be assessed in the light of the particular circumstances of the case. In particular, two key questions that must be addressed:

• First, is this a decision that a parent should reasonably be expected to make?
• Secondly are there any factors that might undermine the validity of parental consent?

These two questions go to whether a decision is within the "Scope of Parental Control".  In the case of a decision which goes beyond the kind of decisions parents routinely make in relation to the medical care of their child, clear reasons as to why it is acceptable to rely on parental consent to authorise this particular decision will be required.  If there is doubt about capacity, parental responsibility or whether parents are acting in the best interests of the child practitioners should take advice and a court order may be necessary.

If one person with parental responsibility gives consent and another does not, the clinicians can choose to accept the consent and perform the treatment in most cases if it is viewed to be in the child's best interests. While the general position is that the consent of one parent is sufficient, the position concerning certain irreversible treatment is different.   The consent of both parents or the approval of the court is necessary.  Parents should be informed of their right to take their own legal advice and be assisted to do so via PALS or other services.

Deprivation of liberty in an acute hospital

Prior to the Supreme Court’s judgment in Cheshire West the courts had established that someone with parental responsibility cannot authorise a deprivation of liberty. Cheshire West clarified the elements establishing a deprivation of liberty, but did not expressly decide whether a person with parental responsibility could, and if so in what circumstances, consent to restrictions that would amount to a deprivation of liberty.  This has now been developed in the case of Re D – see below.

When considering what amounts to a deprivation of liberty, practitioners will need to determine whether the care regime for, and restrictions placed on, the child or young person accord with the degree of parenting control and supervision that would be expected for a child or young person of that age. For example, whereas it is usual for a child of under 12 years not to be allowed out unaccompanied without their parent’s permission, this would not usually be an acceptable restriction on a 17 year old. 

In the case of Re D (A Child: Deprivation of Liberty) (2015) the High Court held that the parents of a 15 year old with various disabilities could consent to his treatment regime that would otherwise amount to a deprivation of liberty as part of their natural role as loving parents.  This judgement tells us:

• An appropriate exercise of the Scope of Parental Control (SPC) for a 5 year old will differ  very considerably from what is appropriate for a 15 year old;
• An appropriate exercise of the SPC for a 15 year old suffering from disabilities, will be  different from the SPC for a 15 year old not so suffering; and
• SPC might be different, i.e. more limited, where parents are acting contrary to medical  advice.

Given the departure by the judge in Re D from the principle of universality, acknowledged in Cheshire West, which says all people should be treated the same regardless of disability, it may the that the Courts come up with contrary conclusions in the future.

Admission for mental health treatment

The issues of when a child can be informally admitted based on their agreement, or with parental consent, and how this fits with Cheshire West, the Human Rights Act and the Mental Health Act will be discussed in the next issue of Healthline.  In the meantime, refer to Chapter 19 of the MHA Code of Practice or seek advice.

Conclusion

In some areas relating to the treatment of children and young people the law is clearer now than ever.  In other areas – deprivation of liberty strikes again – the courts are sending mixed messages!  If you need advice, we suggest you take it at the earliest opportunity.