Week 7: Refusal of consent in minors without capacity Flashcards
When are pts considered legally minors?
what should children be included in?
Children under 18 are legally considered minors
Children should be included in discussions about them as far as possible
What are 16 -18 yrs presumed to have and under what act?
16 and 17 year olds are presumed to have capacity under the mental capacity act
What is Gillick competence?
some children under 15 yrs have sufficient capacity to decide for themselves and can consent for themselves
what can children expect if they are deemed to have capacity?
Children who have capacity can expect confidentiality
What remains paramount concern until adulthood?
best interest remains the paramount concern until adulthood
How can a minor with capacity that refuses tx be overriden and by whom?
Whilst minors with capacity can consent to medical tx, their refusal of conest can be overriden in their best interests ( to avoid death or severe permanent injury).
Either by 1) a court 2) by their parents (depending on age of child, adivsable to seek agreement of the court).
Including 16 and 17 yr olds (in spite of MCA)
How can the ability to override a capacitous refusal by a compentent child be justified?
- Courts can override competent parent’s decisions, and the decisions of some competent adults e.g. MHA, and its therefore consistent that we can override capacitous children
What are courts bound by to ensure a child’s interest is of paramount concern?
Courts are bound by children act to ensure the child’s interests are their paramount concern.
Courts have the right to override child’s wishes in the event that it is in the child’s best interest and in the event that the child is refusing tx in circumstances which will in all probability lead to the death of the child or severe permanent injury
What can outweigh a capacitous child’s refusal? (what circumstances)
How are parents involved?
although children are permitted to make their own decisions this interest may be outweighed by other interests they have –> avoiding death or severe permanent injury
parents still have the legal right to give consent for their minor children and dr only needs consent of one person to continue:
competent child OR one OR other parent/ person with parental responsibility
Are parents legally obliged to override the competent refusal of their child?
No –> parents can override the competent refusal of their child, but this does not mean that they MUST, law permits but does not require
Is there a difference between deciding to consent and deciding to refuse consent?
why/ why not?
There is a difference between deciding to consent and deciding to refuse consent.
Consent may require a decision between two equally viable options
Capacity is decision specific, in consenting the child agrees to an intervention that is offered by the doctor, who believes it to be in the child’s best interests to have it.
Refusing is a decision of a different magnitude because the consequences are more serious (unless where doing nothing is one of the options dr recommended).
What act is involved in the refusal of 16/17 yrs?
Presumption in favour of capacity under the MCA
recommended that trusts seek the opinion of the court of protection before disregarding a refusal of consent by minors of 16/17 even if parental consent is available.
What is key as to whether a patient can consent to a procedure?
Ax whether a pt has capacity is key to determining whether they are able to give consent.
What should be remebered when a child is deemed as not having capacity and making tx decisions in their best interests?
Children must still be consulted about other decisiosn that they DO have sufficient capacity to decide.
Plus –> patients (minors or otherwise) should always be included as far as possible in decision making even if they are not ultimately able to decide for themselves.
Who should make decisions for minors who lack the capacity to make tx decisions?
If a child lacks the capacity to consent, you should ask for their parents consent.
it is usually sufficient to have only one parents consent
If parents cannot agree and disputes cannot be resolved informally you should seek legal advice about whether you should apply to the court.
Ideal –> parental consent (both)
sufficient –> consent from one parent
last resort –> court; doctors advise on tx options and potential outcomes but have no authority to decide unless under the doctrine of necessity.