Capacity to consent – children and young people

Last week we began looking at the third component of valid consent – capacity. We recognised how capacity involves being able to understand, retain and evaluate information to make and communicate decisions. We particularly considered capacity with regard to adults. This week we are going to consider consent with relation to young people and children and all the three elements of consent – voluntary, informed and capacity.

First of all, to define children and young people. In this article a child is under the age of 16 years and young people are between 16-18 years. As I mentioned before, you need to be aware of the laws in your own region of the UK as the law may vary from England and Wales.

Voluntary

You need to make sure that a child of age is there voluntarily as far as possible. Clearly this will refer to older children. The child or young person must be engaged and willing to cooperate with the examination and treatment process.

Informed

As far as possible you need to speak directly to the child or young person and make them involved as much as possible in decision making. The same caveats apply to the consent process – being informed they can stop treatment at any time, having realistic expectations, and having a chaperone. Where possible the child should understand what you are doing and why and consent to the procedures you are carrying out.

The parent should also be informed and consenting to the examination and treatment process. Benefits and risks should be explained to parent and child and consent obtained. It is not for the practitioner to decide not to tell the child about risks for fear of frightening them or putting them off treatment. Montgomery consent means the parent and child has a right to know of any reasonable risks relevant to their treatment.

The child and parent should also be informed about realistic treatment outcomes and how the child can be involved in the treatment process to help themselves.

When treating babies and young children clearly the consent process is going to be via the parents. The parent should be informed and consenting throughout the examination and treatment process.

Capacity

Children can consent to their own examination and treatment if they have sufficient maturity and intelligence to understand what is involved. This may apply to certain aspects of the treatment but not all. The consent process needs to be tailored to the child’s understanding and the parent involved as much as possible.

You will probably be aware of Gillick competence, it is worth having a reminder of this landmark case. The case related to a child’s right to receive the contraceptive pill without their parent’s knowledge. Guidelines from the Gillick case are applied to medical consent for medical interventions. This has led to the caveat that the child can consent for themselves if they have sufficient maturity to understand and make up their own mind about treatment.

The standards state that you are ‘strongly advised to involve a person with parental responsibility for the child when seeking consent’

Young people can consent to treatment unless they lack capacity. Their capacity is assessed as for adults – whether they have the maturity and intelligence to understand, retain and evaluate information to make and communicate a decision. It is still good practice to involve someone with parental responsibility unless the young person specifically wants to exclude them – in which case you may wish to question why.

You must record in your notes who is present in the treatment and their relationship to the patient. If a child or young person comes to the clinic alone you should offer them a chaperone if you choose to continue with treatment.

Remember that consent is an ongoing process so you must have consent at each treatment as well as your initial consultation. You should continue to follow good consent procedures throughout the treatment journey.

Who can consent? Be careful…

The person who consents for a child must be the person with parental responsibility. This applies to all mothers and most fathers.

  • Mothers automatically acquire parental responsibility at birth.
  • Fathers have parental responsibility if they were married to the child’s mother at the time of the child’s birth or subsequently
  • Unmarried father’s acquire parental responsibility if they are recorded on the child’s birth certificate
  • Same sex partners both have parental responsibility if they were civil partners at the time of the treatment
  • If same sex partners are not civil partners, the second parent will need to have applied for parental responsibility
  • Legal guardians or adoptive parents may have acquired parental responsibility.

You need to find out the identity of the adult accompanying the child. If the parent is not accompanying the child, you will need to contact the parent to proceed with legal consent.

Generally wise if….

It is wise to involve parents in the treatment of children or young people. Make sure you keep clear records of who has consented and the identity of the accompanying adult.

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