Consent to Medical Examination and Treatment
AMENDMENTThis chapter was reviewed in September 2022.
1. Children aged 16 or 17
Once young people reach the age of 16, they are competent in law to give consent for themselves for their own surgical, medical or dental treatment, and any associated procedures, such as investigations, anaesthesia or nursing care. This means that in this respect they should be treated as adults - for example if a signature on a consent form is necessary, they can sign for themselves.
However, it is still good practice to encourage competent children to involve their families in decision making. Where a competent child does ask for their confidence to be kept, it must be respected unless disclosure can be justified on the grounds of 'public interest' e.g. that there is reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm.
Efforts should be made to persuade the young person to involve their family, unless it is believed that it is not in their best interest to do so. If a decision is taken to disclose, the justification should be noted in the child's records.
2. Children aged 15 and under
Unlike 16 or 17 year olds, children and young people under 16 are not automatically presumed to be legally competent to make decisions about their healthcare.
However, the Courts have stated that under 16s will be competent to give valid consent to a particular intervention if they have "sufficient understanding and intelligence to enable him or her to understand fully what is proposed" (Frazer guidelines, sometimes known as "Gillick competence").
In other words, there is no specific age when a child becomes competent to consent to treatment: it depends both on the child and on the seriousness and complexity of the treatment being proposed.
'Competence' is not a simple attribute that a child either possesses or does not possess: much will depend on the relationship and trust between doctors, other health professionals and the children and their family or carer and the circumstances and the complexity of the decision to be taken.
Children can be helped to develop competence by being involved from an early age in decisions about their care.
3. Birth Parents
Within the context of the above guidance on children's rights to give or withhold consent, the signed consent of a person with parental responsibility should be obtained for both routine and emergency assessment and treatment and immunisations on the Placement Plan.
Where the procedure involves surgery, general anaesthesia or is otherwise intrusive or major, and the child or young person is under 16 and Looked After under S20, the hospital consent form must be signed by a person with parental responsibility.
Where a birth parent withholds consent and there is concern that the child's health, welfare or development may suffer as a result, the child's Social Worker may need to seek legal advice, with a view to obtaining a Court Order.
4. Consent by the Department
Where the Department's consent to examination or treatment is required:
- Where the procedure involves surgery, general anaesthesia or is otherwise intrusive (excluding routine injections and routine dental care) or major, the Head of Service has to give written consent for children and Young people subject to S31 Care Order;
- Parents should be informed if possible and if in the interests of the child;
- For routine health assessments and immunisations the department can give consent using the signed consent on the PIR for S20 and the Corporate parent responsibility under S 31 (IHA and RHA forms are signed in Section A by the Social Worker who confirms that consent has been given).
5. Effect of a Child's Legal Status
The specific effects of various Court Orders are summarised below.
6. Accommodated Children: Examinations and Treatment
The local authority does not have parental responsibility and cannot consent to either examination or treatment unless this power has been delegated by the parent in writing or in an emergency. The parents should be encouraged to delegate authority to the Department for routine treatment and minor procedures.
When a child needs treatment and the parent(s) refuse(s) consent, the Department should consider obtaining an appropriate order, which may be a Section 8 Specific Issue Order, an Emergency Protection Order or an Interim Care Order.
Although treatment in the absence of consent is a trespass to the person and hence an assault, the Department may do what is reasonable in all the circumstances for the purpose of safe-guarding or promoting the child's welfare. This includes giving consent to the child's medical treatment in the event of an accident or emergency.
7. Emergency Protection Order or Interim Care Order
The local authority has parental responsibility and can consent to treatment.
The Court can make directions that medical or psychiatric examinations or other assessments take place or alternatively that such examinations/assessments do not take place. Within these parameters the local authority has parental responsibility and can consent to examination.
Parents must be consulted where possible, but the local authority may determine the extent to which they can exercise their rights to object where it is satisfied this is necessary to safeguard or promote the child's welfare.
A Court cannot make directions regarding treatment.
8. Child Assessment Order
The local authority does not have parental responsibility and cannot consent to any examinations unless a parent delegates this power or in an emergency.
Examination can only take place so far as this has been ordered by the Court.
9. Interim Supervision Order
The local authority does not have parental responsibility and can only consent to examinations where this power has been delegated by the parent or in an emergency.
The Court can make directions that medical or psychiatric examinations or other assessments take place or alternatively do not take place.
The Court cannot give directions that the local authority can consent to medical examinations.
The Court cannot make directions regarding treatment. The local authority does not have parental responsibility and cannot consent unless this power has been delegated by a parent. If the parent refuses consent, the local authority should consider whether an Interim Care Order is required or seek a Specific Issues Order.
10. Full Supervision Order
The Court may direct medical or psychiatric examinations and may also direct that the supervised child submit to any such examination directed by the supervisor.
In the absence of any such requirement from the Court, the local authority only has power to consent if this has been delegated by the parent. The local authority does not have parental responsibility.
The Court can only order treatment directly and cannot delegate this to the local authority. In the absence of delegation by the parent the local authority has no power to consent.
11. Full Care Order
The powers are the same as for an Interim Care Order, except that the Court has no power to make directions regarding what must or must not be done by way of examination.
If a child in care was thought to be in need of treatment which the child was refusing, then the appropriate course would either be to seek an appropriate declaration under the Inherent Jurisdiction of the High Court or to apply for leave to make the child a Ward of Court.
12. Parental Consent to access the Child's Birth and Mother's Obstetric Records
For children who are going to be in long term care, adopted, become the subject of an Special Guardianship Order OR Residence order/Child Arrangements Order, it is important to collect their medical and family medical history for their future knowledge and health care.
Consent for access to these records there is a specific CoramBAAF consent form for Obstetric and Birth parent records.