Children - which decision counts? Part One: Medical Treatment Decisions

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 Courts. It is also different for different types of decisions – for example, those relating to 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.

It is a well-known principle in English law that a competent adult’s refusal to treatment, freely given, cannot be overridden – no matter how unwise or incomprehensible that decision may be [1]. The same cannot always be said in relation to children, who, as a matter of social policy are afforded an added protection against their own decisions (or the decisions of their parents) which may foreclose or unduly limit their ability to make decisions in the future. This is underpinned by the statutory paramountcy given to the welfare of the child [2].

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].

 

Who can provide valid consent to treatment?

The Child

The Test

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]

If a child is Gillick-competent and wishes to receive treatment, their consent alone is sufficient authority without the need to obtain consent from a person with parental responsibility.

Is competence a sliding scale?

Gillick-competence is both a child-specific and decision-specific test:

“… 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]

Is there an age-requirement for different decisions?

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]

Who determines whether a child is competent?

What constitutes “sufficient” understanding, intelligence and maturity is a matter of fact and for the healthcare professional to decide. The onus is on the healthcare professional to decide what facts, issues or themes the child would need to understand. The courts have given some guidance, recognising that the professionals will want to be assured that consent is:

“properly informed by the advantages and disadvantages of the proposed course of treatment and in the light of evolving research and understanding of the implications and long-term consequences of such treatment.” [8]

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 Young Person

For decisions about medical treatment, under statute a young person is assumed to be able to give consent [9] unless they lack capacity in accordance with 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:

a. understand the information relevant to the decision?
b. retain the relevant information?
c. use or weigh that relevant information in the balance?
d. communicate their decision?

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.

Competence vs Capacity; is there a difference?

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]

A person with Parental Responsibility

Persons with parental responsibility are able to provide consent for children and young persons for decisions which fall within the "scope of parental responsibility".

Who has parental responsibility?

Parental responsibility is a concept defined by the Children Act 1989 and means all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to their child/young person (and the child/young person’s property) [11]. Broadly speaking it extends to:

• 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].

Is it a decision which falls within the “scope of parental responsibility”?

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”:

1. Is this a decision that a parent should reasonably be expected to make?

Factors to consider include:

a. whether the child or young person lacks Gillick-competence/capacity?
b. what is considered normal practice in our society?
c. the type and invasiveness of the proposed intervention;
d. the age, maturity and understanding of the particular child/young person;
e. the extent to which the child/young person agrees/resists;
f. any relevant human rights’ decisions of the Court

and

2. Are there any factors that might undermine the validity of this particular person's parental consent?

Factors to consider include:
a. parent cannot make decision – e.g. incapacitated themselves;
b. parent unable to focus on the best interests of the child/young person;
c. significant distress of parent – i.e. to the extent that they're overwhelmed;
d. disagreement between parents.

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?

Yes. If it is a decision that is of:

“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]

There is a “small category of cases” where “the consequences of the exercise of a particular act of parental responsibility are so profound and have such an impact on either the child his or herself, and/or the Article 8 rights of those other parties who share parental responsibility with a local authority” that they must come before the court. For example, the court has confirmed that a decision to consent to the withdrawal of life support should be referred to the court.

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]

If a competent child/capacitated young person doesn’t make a decision, or wishes to defer to the decision of the person with parental responsibility, that person retains the responsibility and the power to provide consent. [27]

What is the impact of duress/undue influence/coercion or control?

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.

In such circumstances, the consent of the young person/child is insufficient authority to treat or provide care (even where the young person/child is agreeing to it). Alternative authority must be obtained. The same applies for a person with parental responsibility who cannot given “free” consent.

Best Interests and the MCA

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.

Are there concurrent powers to provide consent for treatment?

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).

Which Refusal Counts?

It is not uncommon for a child or young person (both Gillick-competent and not; both capacitated and lacking capacity) to refuse or object to a treatment or intervention. In those circumstances, can their wishes be overruled?

Those with Parental Responsibility

Although in the past the courts have found that a person with parental responsibility can override the child’s Gillick-competent/young person's capacitated refusal, such decisions were made before the introduction of the Human Rights Act 1998. Since then case law has given greater weight to a child's Gillick-competent/young person's capable views and suggests a growing trend towards increasing respect for autonomy.

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]

Furthermore, in practical terms, it may be very difficult to force treatment upon a competent and refusing child or young person depending upon the precise treatment requirements.

What about overruling consent?

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

1. In re T (Adult: Refusal of Treatment) [1993] Fam 95
2. Section 1 Children Act 1989
3. E&F (Minors: Blood Transfusion) [2021] EWCA Civ 1888
4. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
5. Re R (a minor) (wardship: medical treatment) [1992] Fam 11
6. Bell & Anor v The Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274 (Admin)
7. Bell v Tavistock [2021] EWCA Civ 1363
8. Bell v Tavistock [2021] EWCA Civ 1363
9. Section 8 Family Law Reform Act 1969
10. X (A Child) (No.2) [2021] EWHC 65 (Fam)
11. Section 3 of the Children Act 1989
12. Section 2 of the Children Act 1989
13. Section 33(3)(a) of the Children Act 1989
14. Section 2(9) of the Children Act 1989
15. S.2(5) of the Children Act 1989
16. S.2(6) of the Children Act 1989 – for example, a Local Authority acquiring parental responsibility through a care order doesn’t, in and of itself, remove the parental responsibility of the parents.
17. S.2(7) of the Children Act 1989
18. Section 33(3)(b) of the Children Act 1989 - in essence, the Local Authority can limit the power of a parent to make decisions. There are some specific decisions that the Local Authority cannot make (set out in ss.33(6)-(7) changing the child’s religion, agree/refuse the making of an adoption order, appointing a guardian, changing the child’s surname or removing the child from the UK).
19. Section 33(4) of the Children Act 1989
20. T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication) [2017] EWFC B1
21. Whilst, strictly speaking, the “scope of parental responsibility” is a term defined within the 2015 Code of Practice to the Mental Health Act, the Code does not limit its application to treatment for mental disorder. Practitioners would therefore be well advised to apply it more generally to all treatment.
22. Re C (Children) [2016] EWCA 374 (Para 90)
23. Re C (Children) [2016] EWCA 374 (Para 104)
24. Re YY (Children: Conduct of the Local Authority) [2021] EWHC 749 (Fam)
25. Subject to any valid refusal of consent to share information.
26. Hewer v Bryant [1970] 1 QBD 357
27. AB v CD & Ors [2021] EWHC 741 (Fam)
28. Re W (a minor) (medical treatment: court's jurisdiction) [1992] 3 WLR 758 and In re W (A Minor) (Medical Treatment: Courts Jurisdiction) [1993] Fam 64 and E&F (Minors: Blood Transfusion) [2021] EWCA Civ 1888
29. E&F (Minors: Blood Transfusion) [2021] EWCA Civ 1888
30. Bell & Anor v The Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Admin)