This page explains the law on consent to medical treatment and what to do in the event that there is a dispute about medical treatment.
The medical professional must respect confidentiality
What is the law on consent to medical treatment?
In most cases it is necessary for medical professionals to obtain consent before undertaking any examination or investigation, providing treatment (surgical, medical or dental) or involving patients in teaching and research. If a medical professional went ahead with an examination or treatment without obtaining consent then this may amount to an assault on the patient.
There are certain guidelines that need to be followed for the consent to be valid:
- The medical professional must inform the patient of all the relevant information regarding the treatment or examination. This includes the benefits and risks, reasonable alternative treatment and the possible outcomes
- The patient must be competent enough to understand the treatment and have the capacity to make an informed decision regarding the treatment
- The patient must voluntarily provide his or her consent and must not be influenced or pressured by medical professionals, family or friends
A medical professional must determine a child's capacity to consent to treatment on a case by case basis
How does a medical professional decide whether someone is able to consent to medical treatment?
In order for a medical professional to determine whether a patient has capacity to consent to treatment, the patient must show that they have:
- The ability to understand and retain information that is vital to the decision about their care, this includes the nature, purpose and possible consequences of not having treatment
- The ability to use this information to consider whether or not to give consent to treatment
- The ability to communicate their wishes
A medical professional must then decide whether the patient has the competence and capacity to consent to treatment.
This is particularly important in cases involving children and young people. Children of the same age will not necessarily have the same understanding so it is important that the medical professional treats each decision on its own merits.
Do young people have the competence and capacity to consent to medical treatment?
Once a young person reaches the age of 16 there is a general presumption in law that he or she will have sufficient capacity to make certain decisions. Therefore, young people can be treated the same way as adults and can consent to medical treatment. This includes any procedure undertaken for the purpose of diagnosis.
Medical capacity is more dependent on the young person's ability to understand and weigh up options as opposed to age. For example; a 16 year old may not have the presumed capacity to consent whereas a 14 year old may have the maturity and a better understanding as to what is involved in treatment. It is also unlikely that a young person misusing drugs or suffering from intermittent mental illness would be regarded as competent.
The Gillick Competency rule clarified that a child has capacity to consent when he has "...sufficient understanding and intelligence to enable him or her to understand fully what is proposed."
Furthermore, a child or young person who has capacity to consent to straightforward risk free treatment may not have capacity to consent to complex treatment. This can also apply where the child or young person's health deteriorates, at which point a person with Parental Responsibility can consent on their behalf. If a young person of this age group does not have the capacity to consent to medical treatment, a person with Parental Responsibility can provide consent. To find out who has Parental Responsibility see our information page on Parental Responsibility.
As stated above, medical capacity is a decision for the medical professional to make and should be addressed on an individual basis as it may also be decision specific . Furthermore, The Department of Health recommends that it is good practice to encourage children or young people to involve families in decisions unless this is not appropriate.
It is an interference of the child's right to respect for private life (Article 8 of European Convention on Human Rights) to provide medical treatment in defiance of consent from the child or parent. However, this may be a justified interference.
What if no one is able to provide consent?
This situation may be apparent where for example where a child or young person was involved in a road traffic accident; the child or young person is taken to hospital and needs emergency life saving treatment but the medical professional can- not wait until the parents are found to provide valid consent. In this case the medical professional will go ahead with the treatment even though there has been no consent provided that the treatment is in the child or young person's best interests and the child or young person would come to significant harm if treatment were not carried out.
Other examples are
- unaccompanied asylum seeking children who are not the subject of a care order yet
- a child of parents who are not deemed competent to give consent i.e. drug dependent or drunk
Temporary carers will not have Parental Responsibility but may do what is reasonable in the circumstances to promote and safeguard the child's welfare. For example, if an accident occurred whilst at school a teacher could accompany a child to A&E for urgent treatment and that treatment may be carried out without parental consent if it is an emergency and is in the child's best interests.
What if the medical professional and parents disagree with each other?
Parental Responsibility does not compel the medical professional to uphold parents wishes if contrary to the child's best interests.
If the medical professional and the parents are in a disagreement about the child's healthcare then an application to court can be made for the courts to decide what is in the best interests of the child. This is particularly important where the treatment is life saving, or life sustaining, in which case an emergency decision from the courts can often be obtained.
Medical Professionals should only provide emergency treatment while waiting for a court decision where it is essential to preserve life or prevent serious deterioration and the patient suffering significant harm.
What if the child or young person disagrees with their parents?
If a child or young person is considered to have capacity to consent to medical treatment, the parents cannot override his or her wishes. However, the courts may have capacity based on what they consider to be in the child or young person's best interests.
Can a child or young person keep their medical records from their parents?
It is helpful for young people to talk to their parents or family members about medical matters but sometimes it may not be in their best interests.
If a child or young person with capacity requests that their parents are not told about medical matters the medical professional must respect confidentiality and not inform anyone else. Confidentiality may be breached if the medical professional justifies the breach on the grounds of child protection or if not telling parents would result in significant harm to the young person.
What if parents disagree with each other?
In general a medical professional will only need the consent of one parent with Parental Responsibility. However, parents will sometimes disagree and a medical professional is often reluctant to go against a parents view in cases where the positives and negatives of the treatment are fairly balanced and it is not clear what is best for the child.
If both parents have Parental Responsibility and they do not agree with each other about medical treatment then it is possible to make an application to the court in order for the court to make a decision based on what it believes is in the child's best interests. Such cases often involve controversial medical treatment or treatment that is considered optional rather than necessary.
Such an application is called a Specific Issue Order. See our How-to Guide on Parental Responsibility for a step by step guide on legal steps to obtain the order.
mediation in resolving a dispute if you meet the financial requirements. Legal aid can help with the costs of going to court where there is evidence of domestic abuse or child abuse. For more information on legal aid see our information pages on :can help with the costs of
- Legal aid for family law matters
- Legal aid if you have been a victim of domestic abuse.
- Legal aid if your child is at risk of abuse.
Immunisation of a child should not go ahead where parents disagree. It can only go ahead when both parents agree or if a court order is granted.
Can a child with learning disabilities consent to medical treatment?
It should not be assumed that simply because a child or young person has learning disabilities that he or she will not have capacity. A child or young person may understand the information better if it is offered in a way that they find helpful. For example, an independent advocate could assist a young person to express his or her wishes and feelings.
Furthermore, involving members of the multi disciplinary team and a designated doctor for the child's protection may be necessary to ensure the decision made is in the best interests of the child or young person.
Can a child consent to non-therapeutic procedures?
An example of a non-therapeutic procedure is a bone marrow transplant, or organ donation. If a young person decides that he or she wants to go ahead with such procedures then a competency test should be applied to all.
Can a young person refuse medical treatment?
For children and young people, refusing medical treatment is different to consenting to medical treatment. If a young person with capacity refuses to accept life saving treatment then their decision may be overruled by the court if it is considered to be in his or her best interests.
When such matters go to court, the court has the power to override the decisions of both the parents and a young person with capacity. A 13 year old girl won the right to refuse a heart transplant that could have saved her life, this case has raised many issues.
How does a court or medical professional determine the best interests of a child?
The best interests of a child or young person will differ from one to another and best interests will include what is clinically indicated. However some guidance is given through the welfare checklist contained in s.1 (3) Children Act 1989:
Account should be taken of:
- The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
- His physical, emotional and educational needs
- The likely effect on him of any change in his circumstances
- His age, sex, background and any characteristics of his which the court considers relevant; and
- Any harm which he has suffered or is at risk of suffering
- How capable each of his parents (and any other person the court deems the question relevant) is of meeting his needs)
- The range of powers available to the court under this act for the proceedings in question.
The Welfare Checklist is not an exhaustive list. Other factors can be considered, such as the views of other healthcare professionals involved in providing care for the child, cultural, religious or other beliefs and values of the child or young person or parents.