Age of consent

Gail Gilmartin offers a primer on UK law regarding consent in children and young adults.

CONSIDER the scenario: you are asked to see a young child brought in for urgent treatment after a nasty fall at school, with cuts to hands and knees. After your initial assessment it is clear that the child needs to have the wounds cleaned and dressed. The accompanying adult also asks about the child’s immunisation status and whether a tetanus vaccination is needed.

This simple scenario might be typical for a GP but similar cases do occur in hospital and questions of consent arise about the combination of immediate and elective treatment.

As in most situations, any emergency treatment to save life or prevent serious harm can be provided without consent. However, when looking at consent in general, the first factor to consider is the age of the child and their competence in relation to the treatment required.

The age of consent in the UK is 16, above that age a young person is presumed to have capacity and can consent to treatment in their own right. Below this age a young person might be able to consent to treatment depending on their maturity and understanding. The legal frameworks setting out the circumstances in which a young person under 16 is able to consent vary in different jurisdictions of the UK but in practical terms require the same type of consideration and decisions to be made. Can the young person understand the nature, purpose and possible consequences of having the investigation or treatment, and of not having the intervention? Can they retain and weigh up the information and come to a decision? Also, can they communicate that decision?

There are occasions when a patient under 16 is mentally competent and can provide their own legally valid consent to treatment. In many cases it is good practice to also involve a parent in the discussions, but where a competent young person does not want parental involvement these wishes should be respected (for example when providing contraceptive and sexual health advice).

When children and young people lack capacity (because of age, immaturity, illness or a decision which is too complex) those with parental responsibility can provide legally valid consent for patients under 16. The patient should however still be involved in the discussions about their care, in line with their level of understanding.

Whilst parental responsibility cannot be transferred by those who hold it they can authorise others to act on their behalf – for example, when a grandparent attends with a child for immunisations. The authority must be clearly expressed and appropriate to the particular circumstances. In some instances there may be authority from a court to provide treatment or allowing another individual to consent.

There are legislative differences in the UK that affect children and young people and their rights to consent on their own behalf, those who might have a legally valid proxy and what happens when there is a refusal of treatment. It is helpful to be aware of these.

England and Wales: refusal of treatment by a young person age 16 or 17, or a child under 16 but Gillick competent, could be overruled if it would in all probability lead to death or severe permanent injury, but this is a matter for the courts to decide rather than one of parental consent. A young person aged over 16 but under 18 who lacks capacity is subject to the Mental Capacity Act in England and Wales and treatment decisions can be made on the basis of the patient’s best interests and will likely involve discussion with the parents. Refusal by a parent to give consent to a particular treatment can be overruled by the courts if thought to be in the patient’s best interests. The Children Act also allows someone without parental responsibility but who "has care" of a child to "do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare".

Scotland: competent patients, even if under 16, can consent in their own right and parents do not simultaneously have a legally valid proxy. A decision by a competent young person under 18 to refuse treatment is likely to be binding and legal advice should be obtained in complex cases. Any patient aged over 16 who lacks capacity is subject to The Adults with Incapacity (Scotland) Act and all medical treatment must therefore comply with the terms of this act. In Scotland, someone who "has care" of a child cannot act in a way contrary to the known wishes of the parents – thus if a carer attends with a child and treatment is required, parental wishes should be ascertained.

Northern Ireland: here the situation is similar to England although there is some ambiguity about the status of someone with parental responsibility being able to consent for a competent young person who refuses consent. On these rare occasions such cases will likely need to be referred to the court. Currently there is no specific legislation regarding young people aged 16-17 who lack capacity and common law principles (those from case law and precedent) must be followed.

The GMC’s publication 0-18 Guidance for all doctors provides useful and detailed advice regarding the subject of consent and young people. All doctors should be familiar with the parts of this guidance relevant to their own practice. Members can also contact MDDUS for specific advice.

Dr Gail Gilmartin is a medical and risk adviser at MDDUS