Who can give consent?
If a child has the capacity to give consent for themselves, healthcare professionals are asked to seek consent directly from them. The legal position regarding ‘capacity’ is different for children and young people aged over and under 16.
Young people aged 16 and 17
At 16 years of age, a young person can be presumed to have the capacity to consent to their own treatment and care. This means that in many respects they should be treated as adults – for example, if a signature on a consent form is needed, they can sign for themselves.
However, it is still good practice to encourage children who have the capacity to involve their families/carers in decision-making.
Where a child with capacity asks a healthcare professional to keep their confidence, they must do so, unless they can justify disclosure on the grounds that they have reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm if the disclosure is not made.
Unlike 16 or 17 year olds, children under 16 are not automatically presumed to have the capacity to make decisions about their healthcare. However, the courts have stated that under 16s will have the capacity to give valid consent to a particular treatment if they have “sufficient understanding and intelligence to enable him or her to understand fully what is proposed” (sometimes known as “Gillick competence”).
In other words, there is no specific age when a child gains the capacity to consent to treatment: it depends both on the child and on the seriousness and complexity of the treatment being proposed. However, a child over 16 is presumed to have capacity.
Healthcare professionals will help children by involving them from an early age in decisions and encouraging them to take an increasing part in the decisions about their care. This will particularly apply when caring for a particular child over a period of time, for example where the child needs a series of operations.
As with older children, healthcare professionals must respect any request from a child under 16 years of age with the capacity to keep their treatment confidential, unless they can justify disclosure on the grounds that they have reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm if that information is not disclosed.
If a child lacks the capacity to consent, consent may be obtained from someone with parental responsibility for the child.
The Gillick Competence Test
This helps clinicians to identify children aged under 16 who have the legal capacity to consent to medical examination and treatment. They must be able to demonstrate sufficient maturity and intelligence to understand the nature and implications of the proposed treatment, including the risks and alternative courses of action.
An assessment of capacity should be completed in accordance with the Gillick competence test and recorded in the notes as well as the outcome of the assessment.
- National Society for the Protection of Children (NSPCC) – A Child’s Legal Rights – Gillick Competency and Fraser Guidelines