Mental capacity and consent children Flashcards
Children and Capacity for Medical Treatment
Child: Any person under 18 – Family Law Reform Act 1969, s. 1
Under 16 are typically considered to lack capacity but burden of proof shifts when dealing with mature minors (Gillick competence) - in certain circ children under 16 can be deemed competent
16 and 17 year olds have capacity but that presumption is rebuttable
Parental Consent for child’s medical treatment
Role of Parental Consent
one consent needed, certain treatments req consent of both - e.g. non therapeutic circumcision
emergency cases
necessity - doctor may proceed if best interest of child e.g. in an accident with no time to consult parents
legal basis for involvement:
children act 1989 s.8 - empowers the court to intervene where specific treatment is contested - doctors and parents may disagree and court will intervene
Inherent jurisdiction of the court – wardship - typically applies to one of the two decisions or court will act in parental capacity for child over longer period of time
principles: childrens act 1989 s.1 - courts must look to childs welfare, best interests, GMC, views of parents and children, cultural and religious beliefs, other healthcare professionals and least restrictive choice
Disagreements between Parents & Doctors
court will only get involved in these cases
Tafida Raqeeb case
child suffered brain injury and doctors sought declaration from court to withdraw treatment but parents wanted to take her to italy where doctors there would do treatment and hope for high quality of life - lower courts sided with doctor the COA made decision to allow for child to go to italy as it will not be burdensome or impose unbareable lvls of pain on child - doctors prediction was childs life had 1 year to live but they lived longer
Charlie Gard case
at times the courts will side with doctors
Court involvement to overrule refusal of treatment
An NHS Trust v SR
7 year old boy with treatment for brain tumour - both parents initially said don’t want chemo but father changed mind and wanted chemo, this was also the view of the doctors that chemo is better, apply for declaration and it was granted
Courts approving doctors opinion not to treat
Re J (a Minor)
Caveat: Courts will not compel a doctor to do something which is contrary to their own medical opinion
Deference to clinical judgment
Gillick Competence – Children’s right to make their own medical decisions
Gillick v West Norfolk and Wisbech AHA
- young patient feels uncomfortable consulting parents e.g. contraceptives and vaccines
lord fraser - some cases girls will refuse to tell parents herself doctor can proceed without parents consent
- girl although under 16 will understand advice
- cannot persuade her to inform parents or allow him to inform parents that she wants contraceptive advice
- she is likely to begin/continue intercourse with/without contraceptives
- unless she receives contraceptives her mental/physical/both health = likely to suffer
- her best interests req him to give her contraceptive advice/treat/both without parents
Lord Scarman’s judgment:
Parental right to determine treatment terminates if child has sufficient understanding and intelligence to enable full understanding of what is proposed
Developing on from Gillick:
Axon R case
q as to whether a mother of two young daughters have right to know ab them seeking advice about abortions, young person would be deterred from seeking advice if parents are able to know
article 8:
balancing exercise between A.8(1) and A.8(2) - here courts said you don’t need to inform parents
Retreat from Gillick in cases involving children seeking to refuse life-saving treatment
Re R (A minor) Wardship: consent to treatment
lock and key analogy: - consent by itself creates no obligation to treat, merely a key which unlocks a door, when young child parents = key holders to unlock door
Distinction between adults/children:
Fluctuating consent – children will not have capacity
Re JA (A Minor)(Medical Treatment: Child diagnosed with HIV)
Baker J – Gillick endows mature minors with the right to consent, but does not give them the right to refuse
Re E (A Minor) (Wardship: Medical Treatment)
15 year old boy refusing blood transfusion – religious grounds treatment imposed on him but when reached 18, refused treatment and died
Re L case
- 14 year old girl refusing blood transfusion - religious grounds
Bell v Tavistock - the role of doctors and courts
Can children below the age of 16 and suffering from gender dysphoria consent to puberty blockers?
divisional court offered guidance where child can consent to puberty blockers but CoA stated this is too far and should not be offered
Gillick, decided it was for doctors not judges to decide on capacity of under 16s to consent to treatment
Bell v Tavistock and Covid-19 vaccination
Consent for covid-19 vaccination in children
Parent’s consent is likely to improve child’s confidence in a vaccine, but it is not determinative of whether a child is able to consent to a vaccine
If patients do not consent to a vaccination or they disagree about it, doctors can decide what is in child’s best interest.
Minors aged 16/17 years
s. 8 Family Law Reform Act
Presumption of capacity:
the consent of any minor who has attained 16 to …treatment ..shall be as effective as if it would be if of full age…not necessary to obtain consent of parent.
Rebuttable presumption – Note this is different from presumption that applies if an adult of 18
Refusal of treatment – s. 8(3) Family Law Reform Act, 1969
Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.”
Re W (A Minor)
A girl suffering from anorexia refused treatment
Treatment can be provided if have any of the following:
Parents consent, or child’s consent , or Court Order
