Deciding for Children in Medical Treatment

In English law a child is any person under the age of 18. As might be expected, the law recognises that children do not possess the same capacity to make decisions as adults. As will be seen, however, much depends on the age of the child. Consent to medical treatment of a child can be obtained from a number of sources and treatment should not be undertaken without obtaining consent or authority from one of the following:

• those with parental responsibility – usually one or both of the parents, unless the responsibility has been allocated by the court in some different way or to a third party;
• the child in question if he is over the age of 16 or is otherwise of sufficient maturity and comprehension to take a decision of the relevant gravity;
• the court exercising its inherent or statutory jurisdiction over children.

In the absence of any such authority it is unlawful to treat a child unless the circumstances are of such urgency that it is impossible to obtain such consent and it is in the child ’ s best interests to have the treatment: the treatment will be justified by the doctrine of necessity.

Whereas consent by any of those with the capacity to do so will be sufficient authority to proceed with the treatment, the same is not so with a refusal. The effect of a refusal of consent to treatment depends on who makes it. The case law currently indicates the following hierarchy of authority:

• the refusal of the child patient, of whatever age, will not prevail in law against the consent of a person with parental responsibility or the court;
• the refusal of the parent will not prevail against the consent of a child of 16 and over, or even of a younger child of sufficient maturity and understanding to consent to the treatment in question;
• the refusal of the child (of any age) or of the parents will not prevail against the authority of the court exercising its inherent or statutory jurisdiction.

It follows that it is much easier to obtain authority to treat a child than to prohibit treatment. As English law stands, it is permissible with the relevant authority to treat a child against his will and to use the restraint reasonably necessary for that purpose. The continued legitimacy of this position under the Human Rights Act 1998 is questionable and remains untested. Nevertheless, if the medical regime imposed would amount to a frank deprivation of liberty (and not merely a restriction of liberty) then parental consent would not be sufficient authorisation.

This article is adapted from Medical Treatment: Decisions and the Law, Third Edition written by members of Serjeants’ Inn Chambers, and edited by Christopher Johnston QC. This title is also available as part of a subscription on Bloomsbury Law Online.

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