Most children eventually reach an age where they can grasp relevant facts about their body and about proposed treatment to it. They can give consent to treatment, but the degree of understanding can vary in relation to the complexity of the treatment envisaged. A few children are never, even when adulthood is reached, capable of properly understanding the information given to them and must therefore be considered incapable of giving consent.
In England and Wales the Children Act 1989 defines who has parental responsibility and the consequent right to give consent to a child’s treatment. Understanding who holds parental responsibility is not always straightforward and differences in the child’s date of birth may now mean that a father may hold parental responsibility for one child but not for their older sibling.
All mothers have automatic parental responsibility. Parental responsibility rests with both parents, provided they are named on the birth certificate and regardless of whether they are married or not, for children whose births were registered from:
- 15 April 2002 in Northern Ireland
- 1 December 2003 in England and Wales
- 4 May 2006 in Scotland.
For children whose births are registered prior to these dates, the father would only have parental responsibility in the following circumstances:
■■I f he and the mother were married at the time of the conception, birth or sometime after; this responsibility is not lost if the mother and father later divorce;
■■I f he and the mother were never married, but he has a parental responsibility agreement with the mother that is registered with the High Court, or a parental responsibility order from the court.
Other people may gain parental responsibility by court order or by being appointed guardian upon the death of the parents. If the child is the subject of a care order, the Local Authority has parental responsibility which is shared with the parents. If the child is in care voluntarily, parental responsibility remains with the parents.
If two people have parental responsibility for a child, one can be given access without the other being informed. For example, if a child lives with its mother, the father can obtain access without the mother being informed. There are a limited number of procedures where both individuals holding parental responsibility must give consent including vaccination and circumcision.
Difficulties can arise with determining parental consent, and in these cases caution is advised and consideration should be given to the merit of withholding treatment if doubt exists.
The incompetent adult
The Mental Capacity Act 2005 sets out in law many of the previous decisions relating to adults who lack capacity. The Act brought into force a statutory scheme in England and Wales, which sets out the tests and steps that should be taken which treating an adult patient (and a 16 or 17 year old) who lacks capacity. There is a Code of Practice7
1. A person must be assumed to have capacity unless it is established that he lacks capacity;
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success;
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision;
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made in his best interests;
5. Before the act is done, or the decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
These key principles can be summarised:
1. There is a presumption of capacity. Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
2. People should receive support to help them make their own decisions;
3. Unwise decisions – people have the right to make decisions that others might think unwise;
4. Best interests – an act done for, or a decision made on behalf of, someone who lacks capacity must be in their best interests;
5. Least restrictive option – anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.