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Brynffynnon Childand Family Service, Merthyr Road, Pontypridd, Mid Glamorgan CF37 4DD.
Correspondence: E-mail: robert.potter{at}pr-tr.wales.nhs.gov
The law relating to consent to treatment in children can be confusing. It is made up of a patchwork of statutory and case law that reflects an ambivalence between respecting the rights and autonomy of the child and the pervading paternalism within the courts and society more generally. This has lead to an ebb and flow of these competing pressures over the years.
The emphasis in teaching within mental health tends to be on the treatment of children without consent and, therefore, on the application of the Mental Health Act 1983. However, the Act is seldom used with children. The Code of Practice (Department of Health and the Welsh Office, 1999), as well academic commentators (Bridge, 1997; Fennell, 1992, 1996), argue that children with mental disorder should be detained under the Act when appropriate, but also acknowledge that to do so may be ‘swimming against the overwhelming tide of professional opinion’ (Fennell, 1996). The Mental Health Bill (Department of Health, 2002) does, however, set out to clarify the rights of 16-18-year-olds caught in this situation.
This survey did not set out to be comprehensive, nor particularly scientific. Our primary aim was to test the water to see whether this subject needed to be covered within the in-service teaching programme. However, it uncovered major misconceptions regarding the law and what is meant by ‘legally valid consent’.
Method
The quiz (Box 1) was given to all professionally qualified staff who attended team meetings in five community-based teams and the Adolescent Substance Misuse Team in the South Wales Child and Adolescent Mental Health Network during a one-week period in April 2003, and to all those attending a compulsory teaching event for the staff of the regional in-patient unit. The staff included a mix of different professionals, and all forms were completed anonymously.
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Results
The quiz was completed by 49 people (approximately 94% return rate). They included 25 nurses (14 from the in-patient unit); 14 psychiatrists (5 consultants, 3 specialist registrars, 2 senior house officers, and 4 other non-training grade child and adolescent psychiatrists) and 10 professionals from other disciplines such as social work and psychology. The average duration of time that they had been in their current posts was 3.7 years, and they had been professionally qualified for an average of 12.5 years.
The nurses gave correct responses to an average of 45% of the questions, the psychiatrists 61% and the others 36%. There was no difference between the inpatient and community nurses. The overall correct response rate was 48% (Table 1).
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Discussion: the law relating to consent to treatment in children
When can a child consent to treatment?
The Family Law Reform Act 1969, Section 8, stated that the consent of a
minor over the age of 16 years ‘shall be as effective as it would be if
he were of full age’. Under 16 years old, Lord Scarman in Gillick
(1986) stated that the child
could consent, ‘... when he reaches a sufficient understanding and
intelligence to be capable of making up his own mind on the matter requiring
decision’. The level of understanding required, however, did not only
include what the treatment involved, the alternatives, and the risks and
outcomes of each course. He also stated that the child needed to have
considered ‘... Moral and family questions, especially the relationship
with the parents; long-term problems associated with...; the risks to
health...’. Therefore, in order for a child under the age of 16 years to
consent to treatment, there must be a much more thorough consideration of the
issues than if the child is over 16 years or in the case of an adult. Over 16
years, the competence of a child is assumed; but under 16 years it has to be
demonstrated.
Who can act as proxy to consent on behalf of a child?
Anyone with parental responsibility can consent on behalf of a child up to
the age of 18 years. The Children Act 1989 sets out who has parental
responsibility. Parental responsibility for a child is held by the mother; the
father if married to the mother at the time of the birth; and if the child is
subject to a Care Order, the local authority shares parental responsibility.
In other circumstances, fathers and sometimes step-parents can apply to the
Court for a Parental Responsibility Order. Birth parents cannot lose parental
responsibility other than by the child being adopted. No-one can consent on
behalf of another adult (Kennedy &
Grubb, 2000).
Consent and refusal of treatment are different
The Courts consider consent to treatment differently to refusal. This did
not appear to be the intention of Lord Scarman in Gillick, as he made it
explicit that he was referring to‘... the right to determine whether or
not a minor child below the age of 16 years will have treatment’.
However, subsequent cases have determined that a child under 16 years
(Re R, 1992) and
between 16-18 years (Re W,
1993) can consent to treatment, but cannot refuse in the face of
proxy consent by someone with parental responsibility. It has been argued that
refusal to consent involves a higher order of decision making
(McCall-Smith, 1992), with
often more serious implications than does consenting to treatment
(Pearce, 1994). However, it
does appear illogical that the decision will then be made by someone who is
not obliged to consider the issues or the implications of the decision so
deeply. Parents must, however, act in the child’s best interests
(Re J, 1990).
The nature of consent
Consent is the legal expression of the ethical principle that each person
has a right to self-determination and to have their autonomy respected
(Kennedy & Grubb,
2000).
As Lord Donaldson Master of the Rolls (MR) stated in Re R (1992) ‘... consent by itself creates no obligation to treat’. Even if there is valid consent, if the child or parent is against this course of action this will have to be weighed in the balance. Whether, when and how to treat are matters of clinical judgement. The two cases Re R (1992) and Re W (1993) shed some light on the legal perception of consent. In the first of these cases, Lord Donaldson MR likened consent to a ‘key’ that unlocked the door to allow the doctor to treat; in the second he used the analogy of consent being a ‘flak jacket’ protecting the doctor from possible litigation or prosecution.
Conclusion
This small-scale survey suggests that there are basic misperceptions among child and adolescent mental health professionals regarding the legal nature of consent and how the law in this area applies to minors. It is necessary to have a sound knowledge of the law relating to consent in children in general, before considering the treatment of mental disorder without consent. In the quiz, how well did you perform?
References
BRIDGE, C. (1997) Adolescents and mental disorder: who consents to treatment. Medical Law International, 3, 51-74.
DEPARTMENT OF HEALTH AND THE WELSH OFFICE (1999) Code of Practice: Mental Health Act 1983. London: Stationery Office.
DEPARTMENT OF HEALTH AND THE WELSH OFFICE (2002) Draft Mental Health Bill. London: Stationery Office.
FENNELL, P. (1992) Informal compulsion: the psychiatric treatment of juveniles under common law. Journal of Social Welfare and Family Law, 4, 311 .
FENNELL, P. (1996) Treatment Without Consent. Law, Psychiatry and the Treatment of Mentally Disordered People since 1845. London: Routledge.
KENNEDY, I. & GRUBB, A. (2000) Medical Law 3rd Edition. London: Butterworths.
MCCALL-SMITH, I. (1992) Consent to treatment in childhood. Archives of Disease in Childhood, 67, 1247 -1248.[Medline]
PEARCE, J. (1994) Consent to treatment during
childhood. The assessment of competence and the avoidance of conflict.
British Journal of Psychiatry,
165, 713
-716.
Gillick V West Norfolk and Wisbech Area Health Authority (1985) 3 All ER 402, (1986) AC 112
Re J (a minor) (wardship: medical treatment) (1990) 6 BMLR 25
Re R (a minor) (wardship: medical treatment) (1992) Fam 11
Re W (a minor) (medical treatment) (1993) All ER 627, (1993) 1 FLR 1
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