SCOTTISH EXECUTIVE

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Protecting Children: A Shared Responsibility

annex J

QUESTIONS AND ANSWERS ON CONSENT ISSUES

New Law on Children and Medical Consent - A briefing by Kathleen Marshall, Gulbenkian Fellow in Children's Rights, Centre for the Child and Society, University of Glasgow, prepared in conjunction with the Yorkhill NHS Trust, Rights of the Child Group (1997).

Q. When does a person cease to be a "child" for the purpose of medical consent?

Under Scottish Law, young people aged 16 and over have the same right to consent or refuse as adults.

Q. Who has the right to give consent on behalf of a child?

Children under 16 can give their own consent if the medical practitioner attending the child considers the child capable of understanding the nature and possible consequences of the procedure or treatment. If the child is judged capable, the practitioner must seek the consent of the child rather than of the parent.

Where a child is judged incapable of consenting, consent should normally be obtained from a person with parental responsibilities and rights, or one of the other categories of person listed below.

It should be noted that, if a child is capable of giving his or her own consent, the parents lose any right they may have had to consent on the child's behalf. This does not mean that parents must always be excluded from the discussions. Unless there are issues about the child's confidentiality, it would be reasonable to involve parents in helping the child to reach a decision. This would also be consistent with the philosophy of partnership with parents which underlies the Children (Scotland) Act. However if the child is judged competent, it is the child's consent alone that is legally effective.

Subject to any court order restricting parental rights, those who can give consent on behalf of an incapable child are:

• The mother whether married to the father or not.
• The child's natural father, if married to the mother.
• The child's natural father, even if divorced from the mother.
• An unmarried father who has entered and registered a formal Parental Responsibilities and Parental Rights Agreement with the mother. This is a new agreement introduced by the 1995 Act. Those holding rights under such an Agreement will have been issued with an "extract" from the Books of the Council and Session where it is registered.
• A legal guardian nominated in writing by a parent before the parent's death. This appointment comes into effect automatically on the death of the parent.
• A person holding a Residence Order in relation to the child, or any other court order giving them the right to consent on the child's behalf.
• A person aged 16 or over who has care or control of a child, unless it is within their knowledge that a parent would refuse consent. The right to consent under this provision is limited to what is "reasonable in all the circumstances to safeguard the child's health, development and welfare". It is a protective, fallback provision and could not be used to authorise, for example, organ donation, non-therapeutic cosmetic surgery or involvement in research for the benefit of others. This provision could apply to relatives or friends with whom the child is living whether permanently or temporarily. It could also include childminders and baby-sitters. It may be particularly useful with regard to foster carers. Children may be in foster care for a variety of reasons. In most cases, the child's natural parents will retain parental responsibility subject to any orders made by the court or children's hearing. This provision will allow medical practitioners to take the foster carer's consentto the limited kinds of treatment described above, without requiring too much enquiry into the child's legal status. This provision does not apply to teachers or other whose care or control is restricted to the school setting.
• A person to whom the parent or other person with parental responsibilities and rights has delegated the right to consent to medical procedures or treatment in relation to the child. There are no formal requirements in relation to this delegation.

Q. What if a parent requests a procedure or treatment which medical staff consider will not be in the interests of the child?

Parental responsibilities and rights are subject to a qualification that their exercise must be in the interests of the child. They exist for the benefit of the child, not of the parent. Parents have no right to insist on treatment which is clearly not going to benefit the child.

Other Issues Relating to the Interests of Children

Q. What if parents want to do other things which do not appear to be in the child's interests?

The qualification of parental responsibilities and rights in favour of the interests of the child applies across the board. This means that the parents cannot insist on any action, such as access to a child, if it is clearly not in the child's interests to facilitate it. This provision does not give licence to undermine parental rights nor to substitute one's own judgement for that of the parent. It does mean that, in difficult situations, proposed actions by a parent which would clearly act against a child's interests can be resisted. If the child has views on the matter in dispute and wishes to express them, these should be sensitively ascertained and taken into account in accordance with the child's age and maturity.

Q. What if parents consistently fail to visit a child in hospital?

If there is, or is likely to be, no contact for a period of three months or more, the Health Board or Trust has a legal duty to inform the local authority with a view to their looking into the matter. Even if three months have not elapsed, staff should consider making a referral if they have concerns about the child's welfare.

Court Orders and Warrants Authorising Medical Examination or Treatment

The Children (Scotland) Act 1995 introduces a number of new orders and warrants which may grant authority for the medical examination and/or treatment of a child:

• Child Protection Orders (which replace Place of Safety Orders).
• Child Assessment Orders (for situations in which there are concerns about a child but satisfactory assessment is impossible without an Order because for example, the parents refuse to allow it.)
• Warrants for detention of a child in a place of safety may now include such conditions.
• Supervision requirements from a Children's Hearing may now impose such conditions.

The effect of any authorisations contained in these orders or warrants is to dispense with the need for parental consent. The Act is quite clear that it is still open to a capable child to refuse consent. No such examination, procedure or treatment can be enforced against the wishes of a child judged capable by the attending medical practitioner.

Issues for Practitioners

Medical practitioners may wish to consider the following issues:

• Their approach to assessing whether a child is capable of understanding the nature and possible consequences of the procedure or treatment contemplated.
• How the child's consent should be sought. What information to give the child as a basis for consent.
• What to do if a child refuses to consent to something which is essential or highly desirable. Sometimes sensitive counselling can explore the child's concerns and provide sufficient reassurance to enable the child to proceed. If a competent child refuses consent, this should normally be accepted in the same way as an adult refusal. If there are doubts about the attending medical practitioner's assessment of the child's competence, a second opinion might be sought. It is possible that recourse could be had to the court orders and warrants referred to above, or to other court orders dealing with parental responsibilities, at least to the extent of bringing a child before another medical practitioner for another assessment. The availability of court intervention in these circumstances is yet to be tested. Advice should be sought on individual cases.
• How to speak to parents about the rights of a child.
• How to ascertain who has the right to consent on behalf of a child judged incapable of consenting.

Reports for Children's Hearings

Practitioners should be aware that, as a result of a decision of the European Court of Human Rights, Children's Reporters are now obliged to make available to parents any information which is made available to members of the children's panel considering their child's case. This has implications for the way in which reports are written. For example, it is important to be clear about the distinction between information which is relevant to the child's welfare (which would be sent to panel members and therefore to parents) and information relating to evidential matters which may be used to support establishment of grounds of referral (which will not be sent to panel members or parents). There may be advantages in preparing separate reports in appropriate cases.

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