Legal and ethical

Assessing decision-making
capacity: children under 16
Richard Griffith

law, such as in an emergency, the acts of

nurses would lose their immunity.
Abstract Consent is a state of mind personal
Consent is a fundamental element of the lawfulness of treatment. It upholds
to the patient where they agree to the
the principle of autonomy and a person’s right to decide whether or not to
violation of bodily integrity (Sidaway v
have treatment. This right to decide presupposes an ability to make decisions.
Bethlem Royal Hospital [1985]). It has a
Decision making capacity is the key to a person’s autonomy and it is essential
clinical and legal purpose. The clinical
that nurse prescribers are able to assess whether the patients in their care have
purpose recognizes that the success of
the necessary capacity to make decisions about their care and treatment.
treatment very often depends on the
This article considers the test for decision making capacity for children younger
cooperation of the patient. The legal
than 16 years of age.
purpose is to underpin the propriety of
the treatment and furnish a defence to

N urse prescribers have patients of

all ages on their case load and it
is essential that any care or treatment
perform acts on people that would be
crimes if done by ordinary citizens.
He held that (Airedale NHS Trust v
the crime and tort of trespass.

The right to decide

delivered to them is within the law.
Consent is an essential element of the
lawfulness of treatment. It provides a
defence to criminal assault and the tort
or civil wrong of trespass to the person
(F v West Berkshire HA [1990]). In a
health context, consent has a more
fundamental objective. Lord Mustill
in Airedale NHS Trust v Bland [1993]
wondered why nurses can with impunity
Bland [1993] (Lord Mustill at 889):
‘The reason why the consent of the
patient is so important is not that it
furnishes a defence in itself, but because
it is usually essential to the propriety of
medical treatment’
Unless a valid consent is present, or
consent is dispensed with by operation of
In Re T (Adult: Refusal of Treatment)
[1992] the Court of Appeal held that the
right to decide presupposes an ability,
a capacity, to do so. Decision making
capacity is the key to autonomy. If a
patient has capacity then their decision
is binding. If not, then they may receive
treatment in their best interests.
Determining capacity
Nurse prescribers may have children
under 16 years on their case load.
In general, the child will be seen
with a parent whose consent will be
obtained before treatment as the courts
acknowledge that parents are usually the
best judge of what is best for their child’s
welfare (R (on the application of Axon)
v Secretary of State for Health [2006]).
Some children, however, may seek
treatment without the knowledge of their
parents and nurse prescribers will need
to decide whether the child is able to give
a valid consent to treatment.

Richard Griffith is Lecturer in Health Law at

the Centre of Philosophy Law and Health care,
sjlocke/iStockphoto

University of Wales, Swansea.

Email: richard.griffith@swan.ac.uk

266 Nurse Prescribing 2008 Vol 6 No 6


Children reach the age of majority or
adulthood at 18 years. However, while
the courts acknowledge that no child
under 18 years is wholly autonomous,
they do recognize the right of a child
to consent to medical treatment as they
develop and mature with age.
Age however, is not the determining
factor for decision making capacity.
In law, capacity is based on a person
understanding and using treatment
information. It must not be based on a
person’s age, appearance or behaviour.
The Gillick competent child
The issue over whether a child under
16 years has the necessary capacity to
consent to medical examination and
treatment was decided by the House
of Lords in Gillick v West Norfolk and
Wisbech AHA [1986]. In this case a
mother of girls under 16 years objected
to Department of Health advice that
allowed doctors to give contraceptive
advice and treatment to children without
parental consent. Their Lordships held
that a child under 16 years had the
legal capacity to consent to medical
examination and treatment if they had
sufficient maturity and intelligence to
understand the nature and implications
of that treatment.
The test for Gillick competence
Nurse prescribers must apply the rule
in Gillick when determining whether a
patient under 16 years has the capacity to
consent to examination and treatment.
When determining whether a child
has sufficient maturity and intelligence
to make a decision, nurse prescribers will
need to take account of:
n The understanding and intelligence of
the child
n Their chronological, emotional and
mental age
n Their intellectual development
n Their ability to reach a decision
by appraising the advice about
treatment in considering the nature,
consequences and implications of
that treatment (Gillick v West Norfolk
and Wisbech AHA [1986] per Lord
Scarman).
The aim of the rule in Gillick is
to reflect the transition of a child to
adulthood. Legal capacity to make
Nurse Prescribing 2008 Vol 6 No 6
decisions is conditional on the child
gradually acquiring the maturity and
intelligence to be able to make treatment
decisions. The degree of maturity and
intelligence needed depends on the
gravity of the decision. A relatively young
child would have sufficient maturity and
intelligence to be capable of consenting
to a plaster on a small cut. Equally, a
child who had the capacity to consent to
dental treatment or the repair of broken
bones may lack capacity to consent to
more serious treatment (Re R (A minor)
(Wardship Consent to Treatment) [1992]).
Decision making capacity therefore
does not simply arrive with puberty; it
depends on the maturity and intelligence
of the child and the seriousness of the
treatment decision to be made.
For example, a nurse prescriber giving
contraceptive advice and treatment to
a child will realize there is much to be
understood by the child if they are to
have capacity to consent. The nurse
prescriber would need to be satisfied that
not only was the advice understood but
that the child had sufficient maturity to
understand what was involved.
This would include:
n Moral and family questions such as the
future relationship with parents
n Long-term problems associated
with the emotion of pregnancy or its
termination
n The health risks associated with sexual
intercourse at a young age.
Legal and ethical
mcpix/iStockphoto
The more serious the consequences
of treatment the greater the capacity
required. For example, in Re L (Medical
Treatment: Gillick Competence) [1998] a
14 year old Jehovah’s Witness was badly
burned and refused consent to operations
involving blood transfusions. The
court considered that although she was
intelligent, her upbringing in a narrow
religious family meant she was naïve and
that, as she matured, she would question
her religion further and on that basis she
was not Gillick competent and could not
give a valid refusal of treatment.
A similar conclusion was reached
in Re E (A Minor) (Wardship: Medical
Treatment) [1993] where a 15 year
old Jehovah’s Witness refused blood
products. The court found the child was
not Gillick competent because he was not
aware of the harrowing manner of his
likely death and therefore, did not have a
full understanding within the meaning
of Gillick.
A nurse prescriber must be satisfied
that a child has fully understood the
nature and consequences of treatment
before they can accept their consent or
refusal of treatment. It is for the nurse
prescriber to decide whether or not
a child is Gillick competent and able
to consent to treatment. However, the
power to decide must not be used as a
licence to disregard the wishes of parents
whenever the nurse prescriber finds it
convenient to do so. Those who behave in
267
 Legal and ethical
such a way would be failing to discharge
their professional responsibilities and
could expect to be disciplined by their
professional body (Gillick v West Norfolk
and Wisbech
AHA [1986]).
Where a child is considered Gillick
competent then the consent is as effective
as that of an adult. This consent cannot
be overruled by a parent.
The Law in Scotland
The rule in Gillick does not apply in
Scotland. Children in Scotland do have
a right to consent to treatment under
the Age of Legal Capacity (Scotland)
Act 1991, section 2(4). This allows a
child to consent to medical procedures
and treatment where a qualified health
professional is of the opinion that the
child is capable of understanding the
nature and possible consequences of
the treatment.
Capacity and
confidentiality
A nurse prescriber who considers a child
JSABBOTT/iStockphoto
268
to be Gillick competent owes that child
a duty of care. There is no right to notify
the parents against the wishes of the child
unless it can be justified by one of the
exceptions to the duty of confidence (R
(on the application of Axon) v Secretary
of State for Health [2006]). The need
for a duty of confidence is seen as
crucial to a child’s treatment. If a duty
of confidentiality was not imposed this
‘would probably or might well deter
young people from seeking advice and
treatment’ (R (on the application of Axon)
v Secretary of State for Health [2006] per
Justice Silber at 46).
The duty of confidence extends to
access to health records. Disclosure of a
Gillick competent child’s health record
cannot occur without the consent of the
child (Data Protection Act 1998).
Can parents continue to
consent?
Although both the courts and parliament
allow children to make treatment
decisions for themselves as they mature
the Courts hold that no minor—that
is, a child under 18 years—is a wholly
autonomous being (Re M (A Child)
(Refusal of Medical Treatment) [1999]).
Unlike competent adults who are free
from the power of others, if a child under
18 years refuses medical examination
or treatment then the law does allow
others to consent even if the child has
capacity. Lord Donaldson summed up
the position when he held that (Re W
(A minor)(Medical treatment court’s
jurisdiction) [1992] per Lord Donaldson
MR at 641):
‘I now prefer the analogy of the legal
‘flak jacket’ which protects the doctor
from claims by the litigious whether he
acquires it from his patient, who may be
a minor over the age of 16 or a ‘Gillick
competent’ child under that age, or
from another person having parental
responsibilities which include a right to
consent to treatment of the minor.
Anyone who gives him a flak jacket
(ie consent) may take it back, but the
doctor only needs one and so long as he
continues to have one he has the legal
right to proceed.’
Where a nurse prescriber accepts
the consent of a Gillick competent child
to medical examination or treatment
that consent cannot be overruled by
the child’s parent. However, where the
same child refuses consent, then they
may obtain it from another person with
parental responsibility who has the
right to consent to treatment on the
child’s behalf.
Conclusions
Consent is a necessary component for the
propriety of examination and treatment.
Nurse prescribers require a valid consent
or other operation of law, such as an
emergency, before they can examine or
treat a patient, whether this is a child or
adult. For children it can be seen that at
both statute and common law a minor
under 16 years is given the legal right to
consent to treatment as they develop and
mature towards adulthood.
As a child matures to adolescence
the courts allow the child to consent
to examination and treatment where a
nurse prescriber is satisfied that they
have sufficient maturity and intelligence
Nurse Prescribing 2008 Vol 6 No 6

to fully understand the implications of
the decision they are making. The graver
the decision, the greater the maturity and
intelligence required to reach capacity as
there will be much for the child to take in
and understand.
With decision making capacity comes
a duty of confidentiality and a nurse
prescriber cannot disclose information
about the child without permission or
other exception to the duty.
Gillick competent children are given
a right to consent treatment that cannot
be overruled by parents. However, the
courts acknowledge that no child is
wholly autonomous and so, if a child with
capacity refuses treatment a valid consent
may be sought from the child’s parent or
ultimately, a court.
When assessing the competence
of a child under 16 years in relation
to examination or treatment, nurse
prescribers will need to be satisfied that
the child is able to fully appraise the
complex issues that need to be taken into
account before they can safely proceed
on the basis that the child has capacity to
consent to treatment.
Nurse Prescribing 2008 Vol 6 No 6
Legal and ethical
Key Points
■ Courts acknowledge that parents are usually the best judge of what is in the
interests of their child’s welfare.
■ A child under 16 years has the capacity to consent to medical examination
and treatment if they have sufficient maturity and intelligence to understand
the nature and implications of that treatment.
■ Decision making capacity does not simply arrive with puberty; it depends on
the maturity and intelligence of the child and the seriousness of the treatment
decision to be made.
■ The rule in Gillick does not apply in Scotland where the right of a child to
consent is provided for by the Age of Legal Capacity (Scotland) Act 1991,
section 2(4).
■ A nurse prescriber who considers a child to be Gillick competent owes
thatchild a duty of care
■ Where a Gillick competent child refuses consent the nurse prescriber may
obtain it from a person with parental responsibility for the child.
References Re L (Medical Treatment: Gillick Competence)
Airedale NHS Trust v Bland [1993] AC 789 [1998] 2 FLR 810
F v West Berkshire HA [1990] 2 A.C. 1 (HL) Re M (A Child) (Refusal of Medical Treatment)
Gillick v West Norfolk and Wisbech AHA [1986] AC [1999] 2 FLR 1097 ((CA))
112 ((HL)) Re T (Adult: Refusal of Treatment) [1992] 3 WLR
R (on the application of Axon) v Secretary of State for Re W (A minor)(Medical treatment court’s
Health [2006] EWHC 37 jurisdiction) [1992] 3 WLR 758
Re E (A Minor) (Wardship: Medical Treatment) Sidaway v Bethlem Royal Hospital [1985] AC 871
[1993] 1 FLR 386
269