0–18 years: guidance for all doctors

Making decisions

22

You can provide medical treatment to a child or young person with their consent if they are competent, or with the consent of a parent or the court.6 You can provide emergency treatment without consent to save the life of, or prevent serious deterioration in the health of, a child or young person.

6

Mental health legislation provides another legal basis for the treatment of children and young people with mental health disorders.

23

You should involve children and young people as much as possible in decisions about their care, even when they are not able to make decisions on their own.

Assessing the capacity to consent

24

You must decide whether a young person is able to understand the nature, purpose and possible consequences of investigations or treatments you propose, as well as the consequences of not having treatment. Only if they are able to understand, retain, use and weigh this information, and communicate their decision to others can they consent to that investigation or treatment.7 That means you must make sure that all relevant information has been provided and thoroughly discussed before deciding whether or not a child or young person has the capacity to consent.

7

See Assessment of Mental Capacity: Practical Guide for Doctors and Lawyers (BMA; Law Society, 2010).

25

The capacity to consent depends more on young people’s ability to understand and weigh up options than on age. When assessing a young person’s capacity to consent, you should bear in mind that:

  1. at 16 a young person can be presumed to have the capacity to consent (see paragraphs 30 to 33)
  2. a young person under 16 may have the capacity to consent, depending on their maturity and ability to understand what is involved.8 
30

Information obtained as a result of examinations or investigations to which children or young people consented in the expectation of confidentiality should not normally be disclosed without consent either. See s5(3) of The Data Protection (Subject Access Modification) (Health) Order 2000. See also paragraphs 46 - 52 on disclosing information without consent.

33

See Sexual Offences Act 2003, Sexual Offences (Northern Ireland order) 2008 and Sexual Offences (Scotland) Act 2009.

8

Family Law Reform Act 1969; Age of Majority Act 1969 (Northern Ireland); Age of Legal Capacity (Scotland) Act 1991; Adults with Incapacity (Scotland) Act 2000; Mental Capacity Act 2005; Gillick v West Norfolk and Wisbech AHA [1986] AC 112.

26

It is important that you assess maturity and understanding on an individual basis and with regard to the complexity and importance of the decision to be made. You should remember that a young person who has the capacity to consent to straightforward, relatively risk-free treatment may not necessarily have the capacity to consent to complex treatment involving high risks or serious consequences.9 The capacity to consent can also be affected by their physical and emotional development and by changes in their health and treatment.

9

See paragraphs 63-64 for guidance on advice and treatment for contraception, abortion and sexually transmitted infections.

Children and young people who lack the capacity to consent

27

If a child lacks the capacity to consent, you should ask for their parent’s consent. It is usually sufficient to have consent from one parent. If parents cannot agree and disputes cannot be resolved informally, you should seek legal advice about whether you should apply to the court.10 

10

See Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148, [2003] 2 FLR 1095 and paragraphs 34-35 for guidance on procedures undertaken primarily for religious, cultural, social or emotional reasons.

28

The legal framework for the treatment of 16 and 17-year-olds who lack the capacity to consent differs across the UK:

  1. In England, Wales and Northern Ireland, parents can consent to investigations and treatment that are in the young person’s best interests
  2. In England and Wales, treatment can also be provided in the young person’s best interests without parental consent, although the views of parents may be important in assessing the young person’s best interests (see paragraphs 12 and 13)11 
  3. In Northern Ireland, treatment can be provided in the young person’s best interests if a parent cannot be contacted, although you should seek legal advice about applying for court approval for significant (other than emergency) interventions
  4. In Scotland, 16 and 17-year-olds who do not have the capacity to consent are treated as adults who lack capacity and treatment may be given to safeguard or promote their health.12 
12

An assessment of best interests will include what is clinically indicated in a particular case. You should also consider:

  1. the views of the child or young person, so far as they can express them, including any previously expressed preferences
  2. the views of parents
  3. the views of others close to the child or young person
  4. the cultural, religious or other beliefs and values of the child or parents4 
  5. the views of other healthcare professionals involved in providing care to the child or young person, and of any other professionals who have an interest in their welfare
  6. which choice, if there is more than one, will least restrict the child or young person’s future options.
13

This list is not exhaustive. The weight you attach to each point will depend on the circumstances, and you should consider any other relevant information. You should not make unjustified assumptions about a child or young person’s best interests based on irrelevant or discriminatory factors, such as their behaviour, appearance or disability.

11

When a person with parental responsibility is not available, for example. See s.5 Mental Capacity Act 2005 & Chapters 5 and 12 of the Mental Capacity Act Code of Practice. If parents are available, but cannot agree with one another or are thought not to be acting in the best interests of the young person, legal advice should be sought about applying to the court to resolve disputes that cannot be resolved informally. If the young person has a mental disorder (whether or not they also lack capacity) you should consider the provisions of the mental health legislation.

12

See Adults with Incapacity (Scotland) Act 2000.

Young people who have the capacity to consent

29

You should encourage young people to involve their parents in making important decisions, but you should usually abide by any decision they have the capacity to make themselves (see paragraphs 30 to 33 and 46 - 52). You should also consider involving other members of the multi-disciplinary team, an independent advocate or a named or designated doctor for child protection if their involvement would help young people in making decisions.

46

If a child or young person does not agree to disclosure there are still circumstances in which you should disclose information:

  1. when there is an overriding public interest in the disclosure
  2. when you judge that the disclosure is in the best interests of a child or young person who does not have the maturity or understanding to make a decision about disclosure
  3. when disclosure is required by law.
47

You can disclose, without consent, information that identifies the child or young person, in the public interest. A disclosure is in the public interest if the benefits which are likely to arise from the release of information outweigh both the child or young person’s interest in keeping the information confidential and society’s interest in maintaining trust between doctors and patients. You must make this judgement case by case, by weighing up the various interests involved.

48

When considering whether disclosure would be justified you should:

  1. tell the child or young person what you propose to disclose and why, unless that would undermine the purpose or place the child or young person at increased risk of harm
  2. ask for consent to the disclosure, if you judge the young person to be competent to make the decision, unless it is not practical or appropriate to do so. For example it would be inappropriate to ask for consent if you have already decided that a disclosure is likely to be justified in the public interest.
49

If a child or young person refuses consent, or if it is not practical or appropriate to ask for consent, you should consider the benefits and possible harms that may arise from disclosure. You should consider any views given by the child or young person on why you should not disclose the information. But you should disclose information if this is necessary to protect the child or young person, or someone else, from risk of death or serious harm. Such cases may arise, for example, if:

  1. a child or young person is at risk of neglect or sexual, physical or emotional abuse (see paragraphs 56 to 63)
  2. the information would help in the prevention, detection or prosecution of serious crime, usually crime against the person27 
  3. a child or young person is involved in behaviour that might put them or others at risk of serious harm, such as serious addiction, self-harm or joy-riding.
50

If you judge that disclosure is justified, you should disclose the information promptly to an appropriate person or authority and record your discussions and reasons. If you judge that disclosure is not justified, you should record your reasons for not disclosing.

51

Children will usually be accompanied by parents or other adults involved in their care, and you can usually tell if a child agrees to information being shared by their behaviour. Occasionally, children who lack the capacity to consent will share information with you on the understanding that their parents are not informed. You should usually try to persuade the child to involve a parent in such circumstances. If they refuse and you consider it is necessary in the child’s best interests for the information to be shared (for example, to enable a parent to make an important decision, or to provide proper care for the child), you can disclose information to parents or appropriate authorities. You should record your discussions and reasons for sharing the information.

52

You must disclose information as required by law. You must also disclose information when directed to do so by a court.28 

If a young person refuses treatment

30

Respect for young people’s views is important in making decisions about their care. If they refuse treatment, particularly treatment that could save their life or prevent serious deterioration in their health, this presents a challenge that you need to consider carefully.

31

Parents cannot override the competent consent of a young person to treatment that you consider is in their best interests. But you can rely on parental consent when a child lacks the capacity to consent. In Scotland parents cannot authorise treatment a competent young person has refused.13 In England, Wales and Northern Ireland, the law on parents overriding young people’s competent refusal is complex.14 You should seek legal advice if you think treatment is in the best interests of a competent young person who refuses.15 

13

See Houston (applicant) [1996] 32 BMLR 93.

14

See Re R (a minor) [1991] 4 All ER 177.

15

Children Act 1989, Children Act (Northern Ireland) Order 1995 and Children Act (Scotland) 1995 give competent young people statutory rights to refuse medical or psychiatric assessments or examinations directed by the court or a children’s hearing for purposes of an interim care, supervision, child protection or emergency protection order or, in Scotland, a supervision requirement, assessment, protection or place of safety order. A young person’s refusal can be overridden in England, Wales and Northern Ireland by the inherent jurisdiction of the High Court (see South Glamorgan County Council v W & B [1993] 1 FLR 574). The position is less clear in Scotland; see Age of Legal Capacity (Scotland) Act 1991.

32

You must carefully weigh up the harm to the rights of children and young people of overriding their refusal against the benefits of treatment, so that decisions can be taken in their best interests.16 In these circumstances, you should consider involving other members of the multi-disciplinary team, an independent advocate, or a named or designated doctor for child protection. Legal advice may be helpful in deciding whether you should apply to the court to resolve disputes about best interests that cannot be resolved informally.

16

See Re W (A Minor) (Medical Treatment: Court’s Jurisdiction)[1993] Fam 64, [1992] 4 All ER 627 CA.

33

You should also consider involving these same colleagues before seeking legal advice if parents refuse treatment that is clearly in the best interests of a child or young person who lacks capacity, or if both a young person with capacity and their parents refuse such treatment.17 For further guidance on these issues see GMC guidance on consent and treatment and care towards the end of life.

17

See Re P (Medical Treatment: Best Interests) [2004] 2 FLR 1117.

Procedures undertaken mainly for religious, cultural, social or emotional reasons

34

Both the GMC and the law permit doctors to undertake procedures that do not offer immediate or obvious therapeutic benefits for children or young people, so long as they are in their best interests (see paragraphs 12 and 13) and performed with consent (see paragraph 27).

12

An assessment of best interests will include what is clinically indicated in a particular case. You should also consider:

  1. the views of the child or young person, so far as they can express them, including any previously expressed preferences
  2. the views of parents
  3. the views of others close to the child or young person
  4. the cultural, religious or other beliefs and values of the child or parents4 
  5. the views of other healthcare professionals involved in providing care to the child or young person, and of any other professionals who have an interest in their welfare
  6. which choice, if there is more than one, will least restrict the child or young person’s future options.
13

This list is not exhaustive. The weight you attach to each point will depend on the circumstances, and you should consider any other relevant information. You should not make unjustified assumptions about a child or young person’s best interests based on irrelevant or discriminatory factors, such as their behaviour, appearance or disability.

27

If a child lacks the capacity to consent, you should ask for their parent’s consent. It is usually sufficient to have consent from one parent. If parents cannot agree and disputes cannot be resolved informally, you should seek legal advice about whether you should apply to the court.10 

35

To assess their best interests you should consider the religious and cultural beliefs and values of the child or young person and their parents as well as any social, psychological and emotional benefits. This may be relevant in circumcision of male children for religious or cultural reasons18, or surgical correction19 of physical characteristics that do not endanger the child’s life or health.

18

See our guidance on Personal beliefs and medical practice; The law and ethics of male circumcision – Guidance for doctors, BMA 2006; Religious circumcision of male children: standards of care, British Association of Paediatric Surgeons (BAPS) 2001, and Statement on Male Circumcision, BAPS, Royal College of Nursing, Royal College of Paediatrics and Child Health, Royal College of Surgeons of England and Royal College of Anaesthetists, 2001. Female genital mutilation (sometimes referred to as female circumcision) is a serious crime and a child protection issue, whether undertaken in the UK or abroad. Since October 2015 doctors in England and Wales have had a legal duty to report known cases of FGM in girls and young women aged under 18 to the police. HM Government has published two guidance documents on FGM: Multi-agency statutory guidance on female genital mutilation and Mandatory reporting of female genital mutilation: procedural information.

Research

36

Research involving children and young people can benefit all children; but they may be vulnerable because they cannot always recognise their best interests, express their needs or defend their rights.

37

Children or young people should be involved in research only when research on adults cannot provide the same benefits. They can be involved in research that has either:

  1. potential benefits for children or young people generally, as long as the research does not go against their best interests or involves only minimal or low risk of harm (this would be research that involves, for example, asking questions or taking blood samples, the assessment of the risk depending on the view of the child or young person), or
  2. potential therapeutic benefits for them that outweigh any foreseeable risks, which should be kept as low as possible.
38

Children and young people should not usually be involved in research if they object or appear to object in either words or actions, even if their parents consent. If they are able to consent for themselves, you should still consider involving their parents, depending on the nature of the research.20 

20

See the Declaration of Helsinki and Medicines for Human Use (Clinical Trials) Regulations 2004, which requires parental consent to complement even competent under-16s’ agreement to involvement in trials.

39

You must not put pressure on children, young people or their parents to consent to research in the expectation of therapeutic, financial or any other benefit.

40

Before involving children or young people in research21 you should seek advice and get the necessary approval from a relevant research ethics committee, the Medical Research Council22 or a medical royal college.23 

21

See GMC guidance on Good practice in research.

23

See Guidelines for the ethical conduct of medical research involving children, Royal College of Paediatrics and Child Health: Ethics Advisory Committee in Archives of Disease in Childhood, February 2000, Vol 82, No 2, p 177-182.

Donation, transplantation, organ and tissue storage and use

41

The Human Tissue Act 2004 and Human Tissue (Scotland) Act 2006 were passed following inquiries into the storage of children’s organs and tissue without the proper consent.  The Acts make consent central to the lawful storage and use of children and young people’s organs and tissue, and to the removal of such material after death. The Human Tissue Authority regulates and issues codes of practice on activities covered by the Act in England, Wales and Northern Ireland. Scottish ministers have those powers in Scotland.