Children - which decision counts?

01/11/2017

Hannah Taylor

Hannah Taylor

Senior Associate

This article has been updated to take account of the Court of Appeal's decision In the matter of D (A Child) [2017] EWCA Civ 1695 (Court of Appeal) (31 October 2017).

It is a well-known principle in English law that a competent adult’s refusal to treatment cannot be overridden – no matter how unwise or incomprehensible that decision may be. The same cannot always be said in relation to children, who, as a society we consider must be afforded an added protection against their own unwise or irrational decisions.

Strictly speaking, 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 deemed to be competent/have the capacity to make that decision; or
  2. someone with parental responsibility (in accordance with the Children Act 1989); 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 permanent injury, healthcare professionals can provide emergency treatment without consent, providing the treatment is no more than is necessary and is in the best interests of the child or young person.  It is important to note, however, that as soon as the “emergency” has passed, appropriate authority must be obtained to continue treatment and that in reality, the scope of “urgent” treatment is relatively narrow.

Who Can Provide Valid Consent?

As with adults, if a child or young person is competent/capable, they can provide valid consent to treatment/care.

Children

For those under the age of 16, the Gillick test is used to determine whether they are competent to make the decision. This test was created in a case concerning whether doctors could provide contraception to children without their parents’ consent. The House of Lords fashioned a standard which children must reach to be considered as being competent to consent to treatment:

"The child must be of sufficient maturity and understanding to take a decision of the seriousness in question." [1]

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.”[2]

More recently, case law indicates that there is an expectation on practitioners to also apply the test for capacity as set out in the MCA 2005 (albeit, strictly speaking, that Act does not apply to those under 16). The practitioner should also ensure that practicable steps are taken to help the child make the decision.

If a child is Gillick competent and wishes to receive treatment, their consent alone is sufficient authority without the need to obtain parental consent; although those with parental responsibility for the child should generally be consulted (subject to any valid refusal of consent to share information).

Young Persons

Capacity for young persons is determined under the same statutory test as for adults; namely, ss.2-3 of the Mental Capacity Act 2005. 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? Further,

  1. Can they understand the information relevant to the decision?
  2. Can they retain the relevant information?
  3. Can they use or weigh that relevant information in the balance?
  4. Can they communicate their decision?

Parliament has recognised in statute that the older a young person gets, the greater the weight that should be attributed to their views.[i] If a young person has capacity, their consent alone is sufficient authority for the treatment. It is not necessary to obtain parental consent; although those with parental responsibility for the young person should generally be consulted (subject to any valid refusal of consent to share information).

Practitioners should note, however, that in relation to capacity to consent to a deprivation of liberty, in a recent Court of Appeal judgment,[3] the Judges relied upon the test of Gillick competence for Young Persons (as opposed to the MCA 2005 test).

Duress/Undue Influence/Coercion of Child or Young Person

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.

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". It is therefore essential that practitioners take steps to identify who has parental responsibility.

Parental responsibility is a concept defined by the Children Act 1989. 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.
  • any person granted parental responsibility by the Court.

The rights, powers and duties associated with Parental Responsibility apply until a child or young person achieves Gillick competence.

In addition to having parental responsibility, consent from someone with parental responsibility is only sufficient if the decision which is being taken is one which is within the scope of parental responsibility.

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.

In determining whether it is a decision that would fall within the scope of parental responsibility, practitioners should ask two questions (a subjective and objective element):-

1. Is this a decision that a parent should reasonably be expected to make? (Objective Element)

Factors to consider include:

a. whether the child or young person lacks Gillick competence
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? (Subjective Element)

Factors to consider include:

a. parent cannot make decision – e.g. incapacitated;
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.

Recently, 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 (the Subjective Element).

If the decision is one which a parent would not reasonably be expected to make, or if relying on that parental consent would not be appropriate, the decision should be referred to the Court.

One factor which might be relevant in determining whether it is appropriate to rely upon parental consent, is whether care proceedings have been taken to remove the child/young person from the parent.

Unless the treatment in question is irreversible or is an immunisation, the consent of one person with parental responsibility is usually sufficient. It will not be appropriate, however, to rely on parental consent if another person with parental responsibility strongly disagrees with the decision and is likely to take action to prevent intervention. If consensus cannot be reached, the decision should be referred to the Court.

Where a young person lacks capacity (in accordance with the statutory test laid down in the MCA 2005) – as opposed to being overwhelmed or unduly influenced – and therefore cannot provide capacitated consent, 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 2005; insofar as consent can be provided on their behalf by someone with parental responsibility, where the young person is incapable.

Best Interests and the MCA

For young people who lack capacity to make a decision in accordance with the MCA 2005, it is possible for decisions to be taken in their best interests in accordance with the framework laid down in s.4 MCA 2005; this is the same framework that is applicable to adults who lack capacity.

Professionals should consider whether the MCA 2005 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 parent).

The Court

Ultimately, the Court can provide consent to any treatment decision provided the treatment is in the young person's or child's best interests. It can also resolve any disputes as to whether treatment is in the child/young person's best interests.

What about consent for a deprivation of liberty?

Article 5 applies to everyone – irrelevant of age. To be a "deprivation of liberty" within the ambit of Article 5(1), triggering the responsibilities and obligations of Article 5(2)-(4), three elements must be satisfied:

  1. Objective Element – Does the degree and intensity, type, duration, effects and manner amount to a DOL? (this is often referred to as a "confinement")
  2. Subjective Element – Valid consent to the confinement prevents a DOL;
  3. State Involvement - Is the State responsible for the confinement?[4]

A key consideration for practitioners is whether or not the proposed treatment will amount to a deprivation of the child or young person's liberty. With "very young children" the Court of Appeal has recently queried whether a confinement would even meet the "Objective Element" for a deprivation of liberty (on the basis that all young children have to have their liberty curtailed by reason of their youth and dependence on others).[1] However, this was a judicial comment rather than a decision.

If there is an objective deprivation of liberty, consideration needs to be given as to whether consent for such a deprivation of liberty can be provided, and if so, by whom. N.B. valid consent would, of course, mean that the Subjective Element is not met, and as such, no deprivation of liberty arises.

A Gillick competent child or a capacitated young person can provide consent on their own behalf, and if such consent is available, it is sufficient.

Case law has confirmed that a Local Authority with parental responsibility for a child/young person (under a care order) cannot consent to arrangements that would otherwise amount to a deprivation of liberty.[2]

With children, it is possible for a person with parental responsibility to provide consent for a deprivation of the child's liberty, as long as that decision is one which falls in the scope of parental responsibility for that child.[3]

For young persons, the position has been less clear. In a very recent decision, the Court of Appeal has concluded that if a young person lacks Gillick competence, it is possible that consent for a deprivation of liberty would fall within the scope of parental responsibility. Part of the rational for this decision, was that domestic case law has confirmed that the rights, responsibilities, powers and duties associated with parental responsibility continue to apply to children and young persons until they attain Gillick competence (historically, the threshold was upon attaining the age of discretion, but it is now recognised that there is no clear age delineation – and it is based on an assessment of the individual child/young person). The implication from this Court of Appeal case is that a parent with parental responsibility cannot provide consent for a young person with Gillick competence.

Therefore, where a child or young person lacks Gillick competence, it is possible for a parent with parental responsibility to provide consent to what would otherwise be a deprivation of liberty, as long as it is within the scope of parental responsibility for that child/young person and that parent. The question to ask is whether the restriction accords with the degree of parenting control and supervision that would be expected for a child or young person of that age?

Where it is the young person providing consent, practitioners will need to be satisfied that they have capacity (under the MCA 2005) to do so. Where it is a parent with parental responsibility providing consent, practitioners will need to be satisfied that the young person is Gillick incompetent and that it falls within the scope of parental responsibility for that young person and that parent.

If consent for the deprivation of liberty cannot be provided, the deprivation of liberty should be regularised in accordance with the requirements of Article 5. You cannot use DoLS Standard Authorisations for those under 18 years of age. This means that regularisation will have to be obtained from the Court. For children this will have to be the Inherent Jurisdiction of the High Court. With Young Persons, you can use the Court of Protection as long as the Young Person is not "ineligible" for a DoLS Standard Authorisation by virtue of the criteria in cases A-E set down in Schedule 1A MCA 2005; in which case you would need to approach the Inherent Jurisdiction.

Recent case law has confirmed that the same principles and processes should apply to review and renewal hearings for authorisations for DoL in the Inherent Jurisdiction as to the Court of Protection

Which Refusal Counts?

Those with Parental Responsibility

Although in the past the courts have found that a person with parental responsibility can override the child’s 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 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 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 (or Gillick competent when considering deprivation of liberty) 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 2005 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 competent child/a capacitated young person[8] 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 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 2005 or a child is Gilick competent, and is refusing the treatment/admission/deprivation of liberty; 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 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 competent child and any harm that the child is at risk of suffering by refusing the treatment.

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.

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 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.

To assist, we have provided some summaries in tabular format for:

  • Treatment;
  • Admission to hospital for treatment of mental disorder;
  • Deprivation of liberty.

Treatment

 

 

Rely on Consent of

Child

 

Young Person

Child

Parental Responsibility

Court

Young Person

Parental Responsibility

MCA

Court

Patient capacitated/competent consent

 

Y

N/A

N/A

Y[9]

N/A

 

 

N/A

N/A

Patient incapacitated/incompetent consent

 

N

Y if in SoPR

Y

N

Y if in SoPR

 

Y

Y

Patient capacitated/competent refusal

 

N/A

Y if in SoPR but inadvisable

Y

N/A

Y if in SoPR but strongly inadvisable and contrary to MHA CoP[10]

 

 

N

Y but only under inherent jurisdiction

Patient incapacitated/incompetent refusal

 

N/A

Y if in SoPR

Y

N/A

Y if in SoPR

 

Y

Y

 

Admission to Hospital for Treatment of Mental Disorder

 

Rely on Consent of

Child

Young Person

Child

Parental Responsibility

Court

Young Person

Parental Responsibility

Court

Patient capacitated/competent consent

 

Y[11]

N/A

N/A

Y

N/A

N/A

Patient incapacitated/incompetent consent

 

N

Y if in SoPR[12]

Y

N

Y if in SoPR

Y

Patient capacitated/competent refusal

 

N/A

Y if in SoPR but inadvisable[13]

Y

N/A

N (s.131(4) MHA 1983)

Y but only under inherent jurisdiction

Patient incapacitated/incompetent refusal

 

N/A

Y if in SoPR[14]

Y

N/A

Y if incapacitated due to MCA 2005 and in SoPR – if incapacitated due to undue influence/overwhelmed inadvisable[15]

Y

 

Deprivation of Liberty

 

Rely on Consent of:

 

Child

YP

 

Child

Parent with PR

Local Authority with PR

Court

YP

Parent with PR

Local Authority with PR

Court

Patient capacitated/

competent consent

 

Y

N/A

N/A

N/A

Y

N/A

N/A

N/A

Patient incapacitated/

incompetent consent

 

N

Y if in SoPR

N

Y

N

Y if YP Gillick incompetent and in SoPR

N

Y

Patient capacitated/

competent refusal

 

N

Y if in SoPR *exercise caution

N

Y

N

N

N

Y if inherent jurisdiction invoked

Patient incapacitated/

incompetent refusal

 

N

Y if in SoPR

N

Y

N

Y if in SoPR

N

Y

 

 

 

[1]               Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112

[2]               Re R (a minor) (wardship: medical treatment) [1992] Fam 11

[3]               In the matter of D (A Child) [2017] EWCA Civ 1695 (Court of Appeal)

[4]               Storck v Germany (2005) 43 EHRR 66

[5]               In the matter of D (A Child) [2017] EWCA Civ 1695 (Court of Appeal)

[6]               A Local Authority v D and Ors [2015] EWHC 3125 (Fam) Para 26-29 – the Court of Appeal acknowledged this position, but neither affirmed or overruled it in In the matter of D (A Child) [2017] EWCA Civ 1695 (Court of Appeal)

[7]               Re D (A Child: Deprivation of Liberty) (2015) EWHC 922 (Fam); Birmingham City Council v D and W [2016] EWCOP 8; In the matter of D (A Child) [2017] EWCA Civ 1695 (Court of Appeal)

[8]               Re W (a minor) (medical treatment: court's jurisdiction) [1992] 3 WLR 758

[9]               S. 8 FLRA 1969

[10]             Para 19.59 MHA CoP

[11]             Para 19.65 MHA CoP

[12]             Para 19.67 MHA CoP

[13]             Para 19.39/19.66 MHA CoP

[14]             Para 19.67 MHA CoP

[15]             Para 19.54 MHA CoP

 

[i] S.8 Family Law Reform Act 1969

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