Consent in paediatrics

Obtaining informed consent for emergency or elective surgical, investigative and interventional procedures is an important issue. Consent can be written, verbal or implied. In obtaining informed consent, the Department of Health recommends that parents and children should be provided with the following information:

In law, a child or minor is someone under 18 years of age. Medical treatment in the statutory context includes diagnostic procedures such as X-rays and some preventative measures such as immunization, but according to most authorities Medical treatment does not include cosmetic procedures, blood or organ donation or research. However, the age of consent for all these procedures under common law is 16 years of age.1

To give consent, the patient must be competent. To obtain consent, one must establish whether or not they are competent. If a child is found not to be competent, the person with parental responsibility needs to give consent. One must never make the assumption that a child over 16 years is competent, or that one under 16 years is not. Equally, it should not be assumed that a child with reduced mental capacity is not competent to give consent. They may be able to make competent decisions if the information is presented to them in an appropriate way.

The competence of a child must be assessed in relation to each different procedure. It follows that an individual child may be able to consent to some procedures but not others. For example, a child with appendicitis may be able to consent to an appendicectomy or a child with a fracture to a manipulation, whereas if the same child had renal failure they may not be able to consent to complex decisions in relation to renal transplantation. A child of 16 years should be deemed competent to give consent unless proved otherwise. It is a good practice to involve children and parents together with 16–17-year-old patients unless specifically requested not to.

The Bristol Royal Infirmary Report recommended that children should be allowed to ask questions relating to their care and be given truthful answers clearly and that training should be given to healthcare professionals who deal with children regularly.2

Gillick competence 

This term originated in England and is used in medical law to decide whether a child, 16 years or under, is able to consent to their own medical treatment without the need for parental permission or knowledge.2 In the Gillick case (1985), the House of Lords held that ‘parental rights’ did not exist other than to safeguard the best interests of the minor. Lord Scarman's test of ‘Gillick competency’ states that a child could consent if they fully understood the medical treatment proposed. This would mean that the child is able to prevent their parents from viewing their medical notes and make their own informed decisions. The Gillick test refers to capacity, not choice-making ability of the child.3

Fraser guidelines 

Fraser guidelines, developed by Lord Fraser in the House of Lords refer specifically to contraception in those less than 16 years of age.3

Fraser guidelines:

•Young person will understand the professional's advice

•Young person cannot be persuaded to inform their parents

•Young person likely to begin, or to continue, sexual intercourse with or without contraceptive treatment

•Unless the young person receives contraceptive treatment, their physical or mental health, or both are likely to suffer

•The young person's best interests require them to receive contraceptive advice or treatment with or without parental consent

Completing consent 

If a child is under 16 years of age and they lack Gillick competence, consent should be given by the person with parental responsibility. For written consent, only one signature is generally required, but it is a good practice to involve both parents if possible.

The Children Act 19894 listed in the Department of Health

Consent: Working with Children listed the following people as having parental responsibility:

•Child's parents if they were married at time of conception

•Child's mother alone if the parents were not married before December 2003– unless the father has subsequently acquired parental responsibility through a court order, subsequent agreement or marriage

•In the case of a child born after December 2003, both parents have parental responsibility regardless of marital status, if the father's name is on the birth certificate5

•The child's legal guardian

•Any person in whose favour the Court has made a residence order relating to the child in question

•A local authority that has been designated in a care order in respect of the child – but not if the child is looked after under section 20 of the Act

•A local authority or other person who holds an emergency protection order in respect of the child

Special circumstances 

1.A child with complex needs

If the child is cared for in a residential setting they should have a care plan in place involving both the parents and carers.

2.The child away from home or person with parental responsibility

A person with parental responsibility can make appropriate arrangements for their responsibility to be met by others, for example teachers or child-minders. Usually done in writing, this is useful for working parents and those whose children are at boarding school.

3.Ward of the Court

If the child is a ward of the Court, the Court must give consent. There is a provision in the Children Act 1989 allowing a person who does not have parental responsibility but who does have care of the child to ‘do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child's welfare’. Depending on the case and treatment required, this allows step-parents, teachers and others to consent to treatment whilst temporarily within their care.

4.Patient whose mother is under 16 years of age

If the mother is under 16 years of age and not Gillick competent, she will be unable to consent for her child. This should be referred to the Court to ascertain who has consent, but the parent should be given the opportunity to be involved in all discussions about care.

5.Dual signature

Circumcision performed for clinical reasons requires only one signature for consent. Non-therapeutic circumcision is no longer performed by the National Health Service. Permission for non-medical male circumcision requires given consent from both parents and this in turn requires two signatures on the consent form to demonstrate that both have been involved in the decision-making process.6 Currently, there are no other instances where dual consent is required.

Where parents and clinicians disagree 

Article 8 of the European Convention on Human Rights concerns respect for private and family life, and should be the forefront of any considerations about the involvement of parents in decision-making on behalf of their children. If the parents cannot agree with clinicians about a necessary proposed treatment, an application can be made to the Court for the treatment to go ahead. Hospital trusts should have access to a judge through a solicitor 24 hours a day to discuss difficult cases. In most instances things can be resolved without Court intervention, but in an emergency situation where there is no time for the Court to act, the Department of Health advises that treatment should be given immediately and clarification sought after.7