Consent and Children: A Practical Summary

General Principles of Consent

Clinical treatment inherently involves a patient agreeing to some interference by another, either physically or mentally. Consent involves gaining the patient's understanding of that proposed interference and then the patient's agreement to it. That understanding does not need to be absolute and in some cases will not be required at all. Agreement to the interference may be in different forms and the characteristics of the patient may render agreement, rather than the patient's understanding of the treatment, unnecessary.

Without consent, treatment may amount to an assault or a battery. For that reason the clinician will want to get this right. The lawyer's interest in this will typically be to protect the clinician or to seek recompense for the clinician's failings.

In practice, these legal wrongs will rarely be pleaded as assault or battery as the clinician's professional obligations require consent to be obtained. Failure to obtain consent will fall within the tort of negligence and in practice, the easy availability of a civil claim in clinical negligence is bound to be a more likely route to resolution of disputes. This professional obligation is confirmed by GMC guidance in Good Medical Practice: “You must be satisfied that you have consent or other valid authority before you undertake any examination or investigation, provide treatment or involve patients in teaching or research. Usually this will involve providing information to patients in a way that they can understand, before asking for that consent…” ¹

The first step for the clinician is to assess the patient. That will begin with an assessment of capacity. A line of interesting court decisions has led to the test of capacity now set out at section 3(1) of the Mental Capacity Act 2005.

That states: 3(1) For the purposes of section 2 a person is unable to make a decision for himself if he is unable –

to understand the information relevant to the position

A person who fails that test, has an impairment or disturbance of the function of his mind or brain, which renders him incapable of making a specific decision at the time of assessment when the consent decision needs to be made.

Importantly, a person is not to be regarded as unable to make a decision for himself simply because he requires an explanation to be given in a way that is appropriate to his circumstances (for example using sign language, or visual aids or any other means). It is also not a bar to capacity that the person is only able to retain the relevant information for short periods of time. That allows for those who may have intermittent capacity by reason of some neurological condition but also allows for the temporary effect of confusion, panic, shock, fatigue, pain or medication.

A difficulty for the clinician arises where a patient makes a decision which appears to be irrational. The person is not to be treated as lacking capacity because a decision appears unwise or irrational or based on a different value system from that of the clinician. However, a person who makes a decision which is irrational and based on a misconception of reality may not be in a position to demonstrate the ability to comprehend, weigh or make use of the relevant information. These are points that are derived from a long line of court decisions on capacity and were later enshrined in the Mental Capacity Act. ²

This Act reflects that a clinician can adjust the information to be given to the patient to the needs of that particular patient. Not all patients will require a full explanation and it will be for the clinician, as a part of that clinician's professional skill, to adjust the form and content of information to the particular patient. In the case of Sidaway v. Board of Governors of Bethlem Royal Hospital [1985] AC 871, it was held that the legal standard to be used in deciding whether adequate information has been given should be the same as that used when judging whether a doctor has been negligent in treatment or care of a patient. A doctor would not be considered negligent if that clinician's practice conformed to that of a respectable body of medical opinion held by practitioners skilled in the field in question. ³ This decision, however, also reserved to the court a rather ill defined power to decide that information regarding a particular risk (special in kind or magnitude or special to the patient) should be given where that information was so obviously necessary (in this case, of spinal cord injury), even if “Bolam” points towards there being a body of opinion which would not have given that warning.

This position has been amplified by the often quoted but little applied decision of Chester v. Afshar [2004] UKHL 41, where the clinician was held liable where he failed to warn of a small risk of injury which in fact occurred, even where the patient may well have had the surgery regardless of being warned.

In summary, the patient must be put in a position where he can make an informed choice on agreeing to or refusing a course of treatment. This is another step in the establishment and definition of the right of the patient to be given information about all significant possible adverse outcomes, even if the risk of such an outcome is very small.

Many patients will not want to be given this sort of information or may require different amounts of information at different stages of this treatment and the clinician's notes should reflect the clinician's assessment of that need, and the information given or withheld.

Practical Issues

Consent is to be obtained by the clinician giving treatment. Delegation may occur but the person obtaining consent must clearly have sufficient knowledge to be able to provide the appropriate degree of information and to have sufficient experience to make the necessary assessment of the patient. ⁴

The timing of obtaining consent is not fixed. It should ideally be close enough to the time of the treatment or procedure to avoid any intervening event or failure of memory affecting the nature of the consent, but not so close to it that the patient may be in a vulnerable or confused state, or feel unduly pressurised. It has unfortunately been known in the past for consent to be obtained after anaesthetic pre-medication has been given to a patient, when awareness must be in doubt.

Undue importance is given to signing consent forms. That is seen by patient and clinician alike as the most important step in this process. It may appear rather as though it is the “completion” of the therapeutic agreement. The consent form is simply a type of evidence that the consent process has taken place, yet it usually contains very little treatment specific information. This use is emphasised by the current Department of Health guidance but more important are the notes that the clinician (and patient) may have written recording this process. Consent may be verbal or by gesture, or other bodily movement. ⁵

Importantly, consent lasts until it is withdrawn but withdrawal may be implied by intervening events or a change in the patient's capacity. The clinician's responsibility is to continuously monitor the status of the consent, but the patient should be aware that he can change his mind at any point.

Refusal of consent by an adult with capacity must always be honoured, even if the consequences for the patient are dire. The consequences of ignoring a refusal may lead to criminal charges against the clinician.

Children

The position of the child (under 18 years) is slightly different as a result of the historical perspective that a child inherently lacks capacity. As always, that perspective has been modified in the context of the modern world.

Everyone over the age of 18 with capacity, is presumed to be capable of consenting to treatment. By Section 8 of the Family Law Reform Act 1969, people aged 16 or 17 are presumed capable of consenting to their own treatment. Assessment of capacity is required and some children of 16 or 17 will not have developed sufficient capacity to consent.

This applies only to consent and not refusal of treatment. In Re W (a minor) (medical treatment) [1992] 4 All ER 627, the court took the view that it had jurisdiction to override a refusal where there was a risk that the child would suffer grave and irreversible mental or physical harm as a result of that refusal. In Re R (a minor) (Wardship: medical treatment) [1991] 4 All ER 177, the court held that parents can consent to their competent child receiving treatment where the child is refusing. There is however some doubt as to the validity of these decisions in the context of the Human Rights Act 1998 and it is suggested, in the event of a conflict on a refusal of treatment, that the legitimacy of treatment be tested before the courts. The view expressed by Lord Donaldson in Re W: “Good parenting involves giving minors as much rope as they can handle without an unacceptable risk that they may hang themselves” may be inappropriate in the context of article 8.

A further area of derogation from the position that a child lacks capacity is that a child under the age of 16 may, in fact, have sufficient maturity to consent in his or her own right. The test of this maturity (Gillick competence) was evolved as a result of a dispute over whether a GP could address contraception issues in a child under 16 without parental consent. ⁶ The court held that those children under 16 who had sufficient understanding and intelligence to enable them to understand in full what is involved in a proposed intervention, will also have capacity to consent to that intervention. The same test of capacity will apply and clearly different degrees of capacity will be needed for different types of intervention. Refusal of consent is less likely in this situation and parental consent will have more weight. Disputes as to consent should be referred to the Court of Protection.

Guidance issued by the Department of Health recommends that attempts should be made to persuade children under the age of 16 to involve their parents in such decisions, even though they may have capacity for particular purposes.

For children under the age of 16 without capacity, the clinician will look to the parents for consent. Under the Children Act 1989, the consent of only one person with parental responsibility is needed even if another refuses. Those with parental responsibility are defined under that Act and include the mother, the father (if married to the mother at the time of birth), and unmarried father who (jointly with the mother) registered the child's birth, a legally appointed guardian, a person in whose favour a residence order has been made and a local authority designated in a care order. Any such person must also have capacity as defined above. In the event of any dispute, the matter should be referred to the court for a declaration. Where the child is a Ward of Court, significant medical interventions may not be undertaken without the consent of the court.

In an emergency, it is appropriate to treat a child who lacks capacity without the consent of a person with parental responsibility, if it is impossible to obtain consent in time and treatment is vital to the survival and health of the child. The same approach would apply to treatment of an adult patient in a emergency, when the patient was incapable of consenting. However in circumstances where there is no such emergency and there is a conflict between those treating and the wishes of those with parental responsibility, the European Court of Human Rights has made it clear that treatment without referring such cases to court is not only a breach of professional guidance but potentially a breach of the European Convention on Human Rights. In such cases it is for the court to assess whether an intervention, or the withholding of an intervention, is in fact in the best interests of the child. ⁷

Conclusion

It is perhaps surprising, in the light of various guidance to refer matters of dispute to the courts, how rare these applications seem to be. Perhaps it is an indication of the success of clinicians in properly assessing capacity and explaining a proposed intervention. However, situations will inevitably arise where this guidance is breached.