Children and the law Flashcards
What is the significance of The Children Act 1989
This Act of Parliament was a landmark piece of legislation. It consolidated much of the previous legislationregarding children in England and Wales.
The Act set out the obligations that local authorities have for children.
A smaller part of the Act deals with children who are living with their parents, as opposed to living under the
care of the local authority.
As with many modern Acts, the first section outlines several principles that apply throughout the Act
What do the following sections of The Children Act 1989 say:
- 3
- 5
Section 1.3:
It sounds obvious but the Act clearly states that everything that is done by a local authority, a court or any person for that matter, must have the welfare of the child as paramount.
The rights of the parents are secondary to the welfare of the child even if this creates an unjust situation for either or both of the parents.
It is relevant to doctors and other healthcare professionals for example in situations of
o Obtaining consent
o Refusal of treatment
o Disclosure of information/breach of patient confidentiality
Section 1.5:
The Act assumes that in most cases the courts will not force an order upon the parents or upon the Local Authority.
Court orders will therefore only be made where this will benefit the child.
There is a requirement for local authorities to work in partnership with parents for the welfare of the child.
Describe how the welfare principle is put into practice
Wherever possible children should be brought up and cared for within their own families.
Children should be safe and protected by effective intervention if they are in danger.
Agencies should work in partnership with parents insofar as it does not prejudice the welfare of the child.
Children should be kept informed about what happens to them and their wishes and feelings taken intoaccount (considered in the light of their age and understanding). They should have the opportunity toparticipate in decisions made about their future.
Parents continue to have parental responsibility in relation to their children, even if their children are no longer living with them. They should be kept informed about their children and participate in decisions made about their future.
Parents with children in need should be helped to bring up their children themselves.
Explain significance of parental responsibility and what it involves
A cornerstone of the Act was giving parents Parental Responsibility.
Having Parental Responsibility gives either or both parents the right to decide for their children decisions that most take for granted.
The Children Act effectively outlined how the courts would view matters when relations broke down between the parents, or where the Local Authority felt that the parents were not capable of looking after their children
There can be a variety of people with Parental Responsibility:
o Both parents (if married at birth or both on birth certificate) o Mother only (if unmarried and no agreement with father)
o Legally appointed guardian
o Local authority with care or protection order
A Case to Consider 1
Britney is a nine-year-old American girl at boarding school in England. Whilst playing lacrosse one morning she sustains an injury. She is taken by ambulance with her teacher, Mr B, to the local NHS hospital. There she is examined by a surgeon, Ms C, who tells Mr B that Britney has a broken ankle. It s set in plaster, but se will need an operation in about 48 hours to formally fix the fracture. Mr B tries t telephone Britney’s parents in the USA but her father is in an important meeting and is not taking calls, and her mother is out jogging with her personal trainer.
How should Ms C proceed?
a) Consent has to be obtained – oral permission from either parent is sufficient.
b) Ms C should operate under the basis of ‘necessity’.
c) This is a major procedure, therefore Ms C must obtain verbal consent from both parents.
d) Consent has to be obtained – the consent form has to be faxed and signed by at least one parent.
e) As Britney is at school, Mr B can act in ‘loco parentis’ and sign the consent form.
A:Answer: This is not an emergency so consent must be obtained from one of her parents. Neither the doctor nor Mr B has parental responsibility. Consent does not have to be in writing to be legally valid. Oral consent, provided it is informed and voluntary, from one of the parents is sufficient. Some exchange of written information might be helpful but not essential.
What does the Children Act 1989 contain in relation to the abuse of children
The Act provided details of the types of situations whereby the Local Authority is obligated to intervene.
Categories that exist are:
o Physical, neglect, emotional, and sexual abuse.
• Each Local Authority is required to keep a list of those who are considered ‘at risk’.
WHat does the law say about consent for medical treatment for children
The Family Law (Reform) Act 1969 states that the age of consent to medical treatment is 16.
For patients below 16 only those who have parental responsibility can agree to medical treatment for the
child. Although
Parental Responsibility ends at 18, some of the powers of being able to agree to medical treatment on behalf
of a child end at the child’s 16th birthday.
If there are several people with parental responsibility then it is acceptable to gain permission from only
one of them.
For major decisions where there is parental disagreement it is advisable to seek court approval.
What happens if someone with parental responsibility cannot be identified in time?
In an emergency when no one with parental responsibility is available then medical treatment or surgery can be given without consent under the legal principle of necessity.
NOTE: Treatment is legally necessary if it is in the patient’s best interests and cannot wait until consent can be obtained.
A Case to Consider 2
Britney is a nine-year-old American girl at boarding school in England. Whilst playing lacrosse one morning she sustains a serious head injury. She is taken by ambulance with her teacher, Mr B, to the local NHS hospital. There she is examined by a neurosurgeon, Ms C, who tells Mr B that Britney has a intracranial haemorrhage that requires urgent surgical drainage. She needs an immediate operation or she will die. Mr B tries to telephone Britney’s
parents in the USA but neither can be contacted; her father is in an important meeting and her mother is with her personal trainer.
How should Ms C proceed?
a) As Britney is at school, Mr B can act in ‘loco parentis’ and sign the consent form.
b) Britney is likely to be Gillick competent and therefore her consent should be sought.
c) In an emergency the doctor can sign the consent form as it is in Britney’s best interests.
d) This is a major operation and therefore verbal consent from both parents must be obtained before proceeding.
e) Ms C should operate under the basis of ‘necessity’, as it is in Britney’s best interests.
Answer: E
this is an emergency and cannot wait until consent of one of her parents is obtained. Only someone with parental responsibility can give consent for the operation. Neither Mr B nor the doctor has PR in the legal sense. However, surgery is clearly in Britney’s best interests and therefore can be performed under the legal principle of necessity. Britney is 9 and critically ill, therefore will not be Gillick competent
Explain what Gillick Competence is
The Gillick Case (Backrgound)
This case allows, under certain conditions, a doctor to obtain permission for treatment from the child without consulting those with parental responsibility.
In the Gillick case, Mrs Gillick discovered a leaflet in her GP’s surgery that stated it would be possible for girls under the age of 16 to obtain contraception without the knowledge of their parents.
Mrs Gillick, with five daughters under the age of 16 at the time, brought a case to attempt to end this practice.
She argued that it is an offence for a man to have intercourse with a child under the age of 16 and therefore this availability of contraception to minors was colluding in a criminal offence.
The Gillick Case (Judegment)
The court held that it would be in the best interests of certain children to receive this treatment, if certain criteria are met.
This exception (named ‘Gillick’) allows the treatment of any child for any condition providing certain criteria are met
The criteria (aka Fraser competence)
1) Ask the child if you can tell one or both of her parents. If she agrees then she can be treated like any other child with her parent(s) permission.
o If she refuses then her confidentiality must be respected.
2) Assess how mature she is, in terms of the treatment.
o Does she understand what is involved with the treatment and its complications? If so she can be considered if…
3) She is likely to suffer physical or mental harm without the treatment and it is in her best interests to receive the treatment.
NOTE: This has been extended to all forms of treatment for minors
There is no lower age limit to Gillick competence. But clearly the younger the patient, the more the healthcare practitioner will have to justify how the assessment of maturity and best interests was made.
A Case To Consider 3
Harry is a fifteen-year-old boy. He attends the outpatient genitourinary medicine clinic and is diagnosed with genital warts. Harry explains that he had his first and only sexual experience on a skiing holiday and regrets that he did not use a condom. Dr E, the consultant, recommends cyrotherapy and explains that Harry is likely to need 2 or 3 treatments. Harry is a mature boy who tells the consultant, Dr E, that he had cyrotherapy for a verruca 2 years ago without any problems. He also tells Dr E that he does not wish his parents to know about his illness as they are both strongly opposed to sexual intercourse outside of marriage.
Can Dr E proceed with the treatment?
a) Harry fulfils the criteria for Gillick competence but the Gillick case did not apply to invasive treatment and therefore efforts should be made to contact Harry’s parents.
b) Harry cannot receive the treatment without the permission of his parents, but his refusal to contact them must be respected. Therefore, the only way be can be treated is with permission of the Court.
c) Harry does not fulfil the criteria for Gillick competence, but Dr E can give the treatment as it is in Harry’s best interests.
d) Harry does not fulfil the criteria for Gillick competence, but Dr E can give the treatment regardless as there is a wider public interest in treating sexually transmitted diseases.
e) Harry fulfils the criteria for Gillick competence and thus he can receive the treatment.
Answer: E
From the information we are given Harry understands the treatment proposed and the reason for the treatment and thus fulfils the criteria for Gillick competence. Therefore, treatment can be given on the basis of Harry’s Gillick competent
Describe what happens when children refuse treatment
Refusal of Treatment in Children
The Gillick case was about the availability of medical treatment to mature minors, who might otherwise not have access to such treatment.
o The judgement was clothed in references to “best interests”.
The logical next step would be to assume that a child can therefore refuse medical treatment if they meet the criteria of Gillick competence.
But this would rarely be in their best interests, and so therefore children cannot refuse medical treatment.
Furthermore as parental responsibility for the courts (as opposed to parents) ends at 18, it is theoreticallypossible to overrule a refusal of a patient and ask the court for permission.
This court permission would be necessary if the child was 16 or 17, but if younger it is usually possible to obtain the permission of one of the parents, and hence proceed.
A Case To Consider 4
Lulu is a 15 year old girl who is brought into A+E by R, her mother who found her semi-conscious inher bedroom with an empty bottle of vodka and four empty packets of paracetamol. Lulu is drowsy but rouseable and smells of alcohol. Dr A is the A+E ST1. Lulu refuses to answer any of Dr A’s questions. Dr A explains that needs to take a blood sample to check her paracetamol levels and to start treatment to protect her liver whilst they wait for the result of the blood test. When Dr A tries to site a cannula and take some blood, Lulu says ‘just leave me alone’ and then falls asleep again.
What should Dr A do?
a) In this situation, it is in Lulu’s best interests to have the blood test and begin treatment. Therefore Dr A
should obtain R’s consent and proceed with the blood test and treatment.
b) Lulu is 15 and therefore presumed Gillick competent. Therefore Dr A must demonstrate that she is incompetent before he can proceed with treatment.
c) Lulu is 15 and therefore Gillick competent, and therefore her refusal should be accepted.
d) In this situation Dr A can only proceed with R’s consent.
e) In this situation, it is in Lulu’s best interests to have the blood test and begin treatment and therefore Dr A
should proceed on the basis of best interests.
Answer: A
Answer: Given her alcohol intake and drowsiness it is probable that Lulu is not Gillick competent. At 15 she is presumed to lack competence and her behaviour in A+E has done nothing to suggest that she is mentally competent. The clinical information indicates that she has taken a substantial quantity of paracetamol together with a large amount of alcohol, which will increase the risk of fulminant liver failure. Therefore the blood test and treatment with N-acetyl-cysteine are needed as a matter of urgency and would clearly be in her best interests. Her mother is present and therefore her consent should be obtained before proceeding. It would only be acceptable to proceed without consent on the basis of best interests if there was no one available with parental responsible.
A Case To Consider 5
Coco is a 6-year-old girl who has been brought into hospital by her mother L, following a fall on her bicycle. Coco is clammy and hypotensive with a tender abdomen. An urgent CT scan has confirmed that she has ruptured her spleen. Ms T is the on call paediatric surgeon and explains to L that Coco will need an urgent splenectomy and needs an immediate blood transfusion. L agrees to the splenectomy but says that their family are all Jehovah’s Witnesses and that she cannot agree to Coco having a blood transfusion. Ms T explains that Coco has lost a significant amount of blood and her life is at risk without a blood transfusion. However, L maintains that a blood transfusion is unacceptable.
What should Ms T do?
a) This is a major procedure and therefore can only proceed with parental consent. Therefore Ms T should try to contact Coco’s father to see if he can be persuaded to give consent.
b) L’s refusal is irrational and therefore Ms T can proceed without consent.
c) L has parental responsibility and therefore has an absolute right to refuse the treatment proposed.
d) In this situation, Ms T should proceed with the blood transfusion as it is in Coco’s best interests.
e) In this situation, Ms T should speak to Coco alone and determine if she is Gillick competent.
Answer : D
Coco is 6 and severely unwell and will not be Gillick competent. The doctor has a legal duty to act in Coco’s best interests. She may die without an immediate blood transfusion and therefore Ms T must overrule the refusal of Coco’s mother and proceed on the basis of best interests. The Courts in England and wales have made it clear that they will not allow parents to martyr their children on the basis of the parents’ religious or cultural beliefs. The fact that a parent’s refusal is irrational is not alone sufficient legal justification for overriding parental refusal. Overriding parental refusal will only be justified when it is in the child’s best interests
When making decisions involving children the welfare of the child is paramount T/F
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