Consent issues

In England and Wales, children are defined as those under 18 years old (Children Act 1989) and in Scotland as under 16 (Children (Scotland) Act 1995).

Under English law young people aged 16 years or over are assumed to have the capacity to consent to medical treatment and should be treated in the same way as adults.

Young people under 16 years accessing HIV testing and sexual health care without a parent or guardian should be assessed for competency to consent.

‘Fraser competence’ (previously referred to as ‘Gillick’ competence) is the legal framework which states that children under the age of 16 can consent to treatment without parental consent, provided the doctor believes they understand the nature of the treatment. The Fraser judgment has been extended to HIV testing.

Fraser competence requires that:

• The child has sufficient understanding and intelligence to enable him or her to understand fully what is proposed.
• Each child must be assessed separately in relation to each different procedure. It follows that a child may be able to consent to some procedures but not to others.
• There is no specific age at which a child becomes competent to consent. This depends on the particular child and on the seriousness and complexity of whatever treatment or procedure is proposed.
• Competence is about capacity to make a decision, not about the ability of the child to make a choice that other people might consider wise.
• A person who has reached the age of 16 years should be regarded as competent to give consent unless there is evidence to the contrary, as in the case of adults. Competence should be assessed in the same way as it is in adults.
• It is good practice to involve families of 16- and 17-year-olds in the decision-making process unless the young person specifically requests that this should not happen.
• Attempts should be made to persuade them to confide in their families.
• A request from a child under the age of 16 years that the treatment should be kept confidential should be respected unless, in the opinion of the healthcare professional, there are reasonable grounds to suggest that the child is suffering, or is likely to suffer, significant harm as a result.

If a child lacks the capacity to consent, then the consent of one parent or carer with parental responsibility is sufficient. If a doctor is aware of parental disagreement, he or she should refer to GMC guidance.¹

If parents of a non-competent child or young person refuse testing that is clearly in the best interests of the child, then the doctor should consider involving other members of the multidisciplinary team, an independent advocate or a designated doctor for child protection before seeking legal advice. This also applies if both a young person with capacity and their parents refuse testing.

Guidelines² are robust in recommending HIV testing for children likely to be at risk of infection. Moreover, the welfare of the child is a central principle of English law and is enshrined in the Children Act 1989. In addition, children have human rights such as the right to life and the best possible health.

However, parents do have rights too, including the right to medical confidentiality and the right to respect for private and family life. The rights of the child and of the parent may come into conflict.

A consensus document from 2009 notes: “Testing of neonates, children and young people where the mother refuses consent and/or disclosure of her HIV status is a complex area. The overriding consideration must be the best interests of the child, and multidisciplinary decision-making and expert advice should be sought, including legal advice where appropriate. It is not acceptable to simply accept a mother’s refusal. Referral to a paediatric centre with experience of management of HIV-infected children is strongly recommended. Parents may need to be supported in making the decision to go ahead to test their children.”³

If healthcare professionals believe the child needs testing or treatment and they cannot obtain parental consent, the issue must be taken to the court for a decision. The general process is as follows:

• The Children Act 1989 imposes a duty on local authorities to promote the welfare of children in need. An important principle is that wherever possible children should be brought up and cared for in their own families.
• Under the Children Act 2004, the NHS may inform the local authority of the situation in order to safeguard the welfare of the child.
• As a short-term measure, the local authority can apply to the court for an Emergency Protection Order. This would allow the local authority to remove the child from the home for a short period and to consent to testing and treatment.
• In the longer term, if the parents continue to refuse consent, the local authority can seek a care order. The parents could argue that such a step is disproportionate and the local authority should make every effort to work with them to agree a solution.

It is rare for the situation to escalate to this degree. Clinicians from Milton Keynes described one case in which both HIV-positive parents had repeatedly refused to test their four year-old son and had declined treatment for themselves. Although the social services department were initially reluctant to treat non-testing as a child protection issue, they did eventually apply for and obtain a court order for the child to be tested. He was HIV negative.⁴

A competent young person can consent to their own medical treatment, but unlike adults their refusal of treatment can sometimes be overridden by a person with parental responsibility or a court, on the basis of the best interests and welfare of the young person. This is only likely to happen in exceptional circumstances.

In England,Wales and Northern Ireland, the law on parents overriding young people’s competent refusal is complex. Doctors should seek legal advice if they think treatment is in the best interests of a competent young person who refuses.

In Scotland parents cannot authorise treatment a competent young person has refused.