Treating young people: the age of consent
Can I treat a young person without their parent’s consent?
Whilst the Children’s Act of 1989 states that a person legally becomes an adult on their 18th birthday, young adults aged 16 or over are presumed in law to have capacity and are entitled to consent to their own treatment. However, their refusal to accept medical treatment can in some limited circumstances, such as risk of death or of irreversible mental or physical harm, be overridden by their parents, someone with parental responsibility or the courts.
Children under the age of 16 can also consent to their own treatment, but they need to be deemed to have “Gillick Competence”.
What is Gillick Competence?
The concept of Gillick competency arises from a House of Lords case from 1985. The mother of 5 girls, all under 16 years old, objected to the Department of Health’s guidance on family planning services. The guidance contained a section dealing with contraception advice and treatment for young people. It said that whilst attempts should always be made to consult parents before contraceptive advice was given to young people; there were limited circumstances where it would be appropriate to offer this advice without parental consent. In short it was for the doctor to exercise their clinical judgment to determine whether or not contraception should be prescribed. The House of Lords held that;
“A girl under the age of 16 years had the legal capacity to consent to medical examination and treatment if she had sufficient maturity and intelligence to understand the nature and implications of the proposed treatment”
The House of Lords recognised that the right to control a child as a parent was a dwindling right, which existed only in so far as it was required for the child’s benefit and protection. How much protection children need generally cannot be set by reference to a fixed age, but depended on the degree of intelligence and understanding that the individual child has. The parents’ right to make decisions about a child’s medical treatment ends when the child possesses sufficient intelligence and understanding to make the decision for themselves.
The House of Lords also said that although in the majority of cases parents were the best judges of what was right for the child; there may be exceptional circumstances where a doctor was better placed to judge the medical advice and treatment to give to a child, if necessary, without the consent of the parents.
How do you make the assessment?
The British Medical Association has provided very helpful guidance on the test to be applied when assessing Gillick competence.
For a young person under the age of 16 to be competent, s/he should have:
- the ability to understand that there is a choice and that choices have consequences
- the ability to weigh the information and arrive at a decision
- a willingness to make a choice (including the choice that someone else should make the decision)
- an understanding of the nature and purpose of the proposed intervention
- an understanding of the proposed intervention’s risks and side effects
- an understanding of the alternatives to the proposed intervention, and the risks attached to them
- freedom from undue pressure.
What about children who are under 13 years old?
There is no lower age limit for the Gillick competence assessment to be applied. However, it is very unusual for children under 13 years old to be deemed to have Gillick competence and it would be extremely rare for dental treatment to be provided to children under 13 years old without parental consent.
Who should make the assessment?
It is the dentist who needs to assess whether the young person has Gillick Competence. Whilst reception staff may be tasked with booking appointments, the assessment of their competence cannot and should not be delegated to them.
Where other members of the team know the young person, or have built up a rapport with them, their assessment can be taken into account when considering competence.
The assessment is ongoing; if the young person presents as competent at their first appointment, this does not mean they cannot be assessed as lacking competence at a later date.
Should we inform the parents about the treatment being given?
Where a young person is not Gillick competent and a parent consents to treatment on their behalf, the parent should be given information about the nature and purpose of treatment and this must be documented in the clinical record.
Even if a young person is deemed to be Gillick competent, and they have given consent for treatment, it is still best practice to provide their parents with information about the treatment. What information the dentist plans to give to the parent should be discussed with the young person in advance, and their agreement to sharing sought. Evidence of consent to the sharing should be retained and recorded in the young person’s notes.
It is very important to ensure that the young person’s consent to share with the parents is freely given, without undue pressure from, for example, the parent themselves.
If there are safeguarding concerns the dentist may need to share the information with the parents or social services without the consent of the child.
If the young person refuses to share details of their treatment with their parent then the dentist will need to consider the risks of not sharing the information. The dentist should consider whether general information about treatment can be provided, without breaching the young person’s right to confidentiality.
Where a dentist believes that it is necessary to share details of treatment, against their wishes, but in the best interests of the competent child the Caldicott Guardian should be consulted.
What if there is an emergency and I can’t contact a parent?
If you are asked to treat a young person who is not deemed to have Gillick competence, or you are not in a position to make a full assessment of competence, the child’s best interests should be considered and the treatment given limited to what is reasonably necessary to deal with the emergency.
If you have any questions about the content of this dental bulletin please feel free to email Julia Furley on jfurley@jfhlaw.co.uk
Julia Furley, Partner and Barrister
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.
