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Assessing Decision Making Capacity in Under 16s

Assessing Decision Making Capacity in Under 16s

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Assessing decision-makingcapacity: children under 16
Richard Grif th
Richard Griffith is Lecturer in Health Law atthe Centre of Philosophy Law and Health care,University of Wales, Swansea.Email: richard.griffith@swan.ac.uk 
law, such as in an emergency, the acts o nurses would lose their immunity.Consent is a state o mind personalto the patient where they agree to the violation o bodily integrity (
Sidaway vBethlem Royal Hospital 
[1985]). It has aclinical and legal purpose. Te clinicalpurpose recognizes that the success o treatment very ofen depends on thecooperation o the patient. Te legalpurpose is to underpin the propriety o the treatment and urnish a deence tothe crime and tort o trespass.
The right to decide
Re T (Adult: Refusal of Treatment)
 [1992] the Court o Appeal held that theright to decide presupposes an ability,a capacity, to do so. Decision makingcapacity is the key to autonomy. I apatient has capacity then their decisionis binding. I not, then they may receivetreatment in their best interests.
Determining capacity
Nurse prescribers may have childrenunder 16 years on their case load.In general, the child will be seenwith a parent whose consent will beobtained beore treatment as the courtsacknowledge that parents are usually thebest judge o what is best or their child’swelare (
R (on the application of Axon)v Secretary of State for Health
[2006]).Some children, however, may seek treatment without the knowledge o theirparents and nurse prescribers will needto decide whether the child is able to givea valid consent to treatment.
Consent is a fundamental element of the lawfulness of treatment. It upholdsthe principle of autonomy and a person’s right to decide whether or not tohave treatment. This right to decide presupposes an ability to make decisions.Decision making capacity is the key to a person’s autonomy and it is essentialthat nurse prescribers are able to assess whether the patients in their care havethe necessary capacity to make decisions about their care and treatment.This article considers the test for decision making capacity for children youngerthan 16 years of age.
urse prescribers have patients o all ages on their case load and itis essential that any care or treatmentdelivered to them is within the law.Consent is an essential element o thelawulness o treatment. It provides adeence to criminal assault and the tortor civil wrong o trespass to the person(
F v West Berkshire HA
[1990]). In ahealth context, consent has a moreundamental objective. Lord Mustillin
 Airedale NHS Trust v Bland 
[1993]wondered why nurses can with impunity perorm acts on people that would becrimes i done by ordinary citizens.He held that (
 Airedale NHS Trust vBland 
[1993] (Lord Mustill at 889):
‘Te reason why the consent o the patient is so important is not that it  urnishes a deence in itsel, but becauseit is usually essential to the propriety o medical treatment’ 
 Unless a valid consent is present, orconsent is dispensed with by operation o 
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Children reach the age o majority oradulthood at 18 years. However, whilethe courts acknowledge that no childunder 18 years is wholly autonomous,they do recognize the right o a childto consent to medical treatment as they develop and mature with age.Age however, is not the determiningactor or decision making capacity.In law, capacity is based on a personunderstanding and using treatmentinormation. It must not be based on aperson’s age, appearance or behaviour.
The Gillick competent child
Te issue over whether a child under16years has the necessary capacity toconsent to medical examination andtreatment was decided by the Houseo Lords in
Gillick v West Norfolk and Wisbech AHA
[1986]. In this case amother o girls under 16years objectedto Department o Health advice thatallowed doctors to give contraceptiveadvice and treatment to children withoutparental consent. Teir Lordships heldthat a child under 16years had thelegal capacity to consent to medicalexamination and treatment i they hadsu cient maturity and intelligence tounderstand the nature and implicationso that treatment.
The test for Gillick competence
Nurse prescribers must apply the rulein
when determining whether apatient under 16 years has the capacity toconsent to examination and treatment.When determining whether a childhas su cient maturity and intelligenceto make a decision, nurse prescribers willneed to take account o:
Te understanding and intelligence o the child
Teir chronological, emotional andmental age
Teir intellectual development
Teir ability to reach a decisionby appraising the advice abouttreatment in considering the nature,consequences and implications o that treatment (
Gillick v West Norfolkand Wisbech AHA
[1986] per LordScarman).Te aim o the rule in
isto reect the transition o a child toadulthood. Legal capacity to makedecisions is conditional on the childgradually acquiring the maturity andintelligence to be able to make treatmentdecisions. Te degree o maturity andintelligence needed depends on thegravity o the decision. A relatively youngchild would have su cient maturity andintelligence to be capable o consentingto a plaster on a small cut. Equally, achild who had the capacity to consent todental treatment or the repair o brokenbones may lack capacity to consent tomore serious treatment (
Re R (A minor)(Wardship Consent to Treatment)
[1992]).Decision making capacity thereoredoes not simply arrive with puberty; itdepends on the maturity and intelligenceo the child and the seriousness o thetreatment decision to be made.For example, a nurse prescriber givingcontraceptive advice and treatment toa child will realize there is much to beunderstood by the child i they are tohave capacity to consent. Te nurseprescriber would need to be satised thatnot only was the advice understood butthat the child had su cient maturity tounderstand what was involved.Tis would include:
Moral and amily questions such as theuture relationship with parents
Long-term problems associatedwith the emotion o pregnancy or itstermination
Te health risks associated with sexualintercourse at a young age.Te more serious the consequenceso treatment the greater the capacity required. For example, in
Re L (Medical Treatment: Gillick Competence)
[1998] a14 year old Jehovah’s Witness was badly burned and reused consent to operationsinvolving blood transusions. Tecourt considered that although she wasintelligent, her upbringing in a narrowreligious amily meant she was naïve andthat, as she matured, she would questionher religion urther and on that basis shewas not Gillick competent and could notgive a valid reusal o treatment.A similar conclusion was reachedin
Re E (A Minor) (Wardship: Medical Treatment)
[1993] where a 15 yearold Jehovah’s Witness reused bloodproducts. Te court ound the child wasnot Gillick competent because he was notaware o the harrowing manner o hislikely death and thereore, did not have aull understanding within the meaningo Gillick.A nurse prescriber must be satisedthat a child has ully understood thenature and consequences o treatmentbeore they can accept their consent orreusal o treatment. It is or the nurseprescriber to decide whether or nota child is Gillick competent and ableto consent to treatment. However, thepower to decide must not be used as alicence to disregard the wishes o parentswhenever the nurse prescriber nds itconvenient to do so. Tose who behave in
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2008 Vol 6 No 6
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such a way would be ailing to dischargetheir proessional responsibilities andcould expect to be disciplined by theirproessional body (
Gillick v West Norfolkand Wisbech AHA
[1986]).Where a child is considered
 competent then the consent is as eectiveas that o an adult. Tis consent cannotbe overruled by a parent.
The Law in Scotland
Te rule in
does not apply inScotland. Children in Scotland do havea right to consent to treatment underthe Age o Legal Capacity (Scotland)Act 1991, section 2(4). Tis allows achild to consent to medical proceduresand treatment where a qualied healthproessional is o the opinion that thechild is capable o understanding thenature and possible consequences o the treatment. 
Capacity andconfidentiality
A nurse prescriber who considers a childto be Gillick competent owes that childa duty o care. Tere is no right to notiy the parents against the wishes o the childunless it can be justied by one o theexceptions to the duty o condence (
R(on the application of Axon) v Secretaryof State for Health
[2006]). Te needor a duty o condence is seen ascrucial to a child’s treatment. I a duty o condentiality was not imposed this‘would probably or might well deteryoung people rom seeking advice andtreatment’ (
R (on the application of Axon)v Secretary of State for Health
[2006] perJustice Silber at 46).Te duty o condence extends toaccess to health records. Disclosure o aGillick competent child’s health recordcannot occur without the consent o thechild (Data Protection Act 1998).
Can parents continue toconsent?
Although both the courts and parliamentallow children to make treatmentdecisions or themselves as they maturethe Courts hold that no minor—thatis, a child under 18 years—is a wholly autonomous being (
Re M (A Child)(Refusal of Medical Treatment)
[1999]).Unlike competent adults who are reerom the power o others, i a child under18years reuses medical examinationor treatment then the law does allowothers to consent even i the child hascapacity. Lord Donaldson summed upthe position when he held that (
Re W (A minor)(Medical treatment court’s jurisdiction)
[1992] per Lord DonaldsonMR at 641):
‘I now preer the analogy o the legal ‘fak jacket’ which protects the doctor  rom claims by the litigious whether heacquires it rom his patient, who may bea minor over the age o 16 or a ‘Gillickcompetent’ child under that age, or  rom another person having parental responsibilities which include a right toconsent to treatment o the minor. Anyone who gives him a fak jacket (ie consent) may take it back, but thedoctor only needs one and so long as hecontinues to have one he has the legal right to proceed.’ 
Where a nurse prescriber acceptsthe consent o a
competent childto medical examination or treatmentthat consent cannot be overruled by the child’s parent. However, where thesame child reuses consent, then they may obtain it rom another person withparental responsibility who has theright to consent to treatment on thechild’s behal.
Consent is a necessary component or thepropriety o examination and treatment.Nurse prescribers require a valid consentor other operation o law, such as anemergency, beore they can examine ortreat a patient, whether this is a child oradult. For children it can be seen that atboth statute and common law a minorunder 16 years is given the legal right toconsent to treatment as they develop andmature towards adulthood.As a child matures to adolescencethe courts allow the child to consentto examination and treatment where anurse prescriber is satised that they have su cient maturity and intelligence
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