CEL 8: Children and young people

Overview
This unit considers the application of some general legal and ethical principles to the special situations
that arise around the medical care of children and young people. You will also learn about specific
areas of legislation applicable to this area of medical practice.

In CEL Workshop 8, which for the academic year 20-21 will be held during R&I Week J, we will
discuss the ways in which decisions about medical treatment for children are made, and how this
interacts with the law of consent and confidentiality. We will consider some difficult cases, including
deciding when to withdraw treatment from babies and children. We will also consider the duties of
doctors in relation to the prevention and detection of child abuse or neglect.

Objectives
Students should be able to:

 Demonstrate the ability to respect the rights and interests of children and young people (2k, 4,
10b, 11b, 11d, 11e, 11f)
 Describe the law relating to the capacity of children and young people to consent to and
refuse treatment, and analyse the ethical implications of this (2k, 2l, 4)
 Outline the duty of confidentiality in relation to children and young people, and analyse the
ethical implications (2d)
 Explain the respective roles of parents/guardians, HCPs and the courts in best interest
decisions about the treatment of children and young people (2c, 2k, 2l)
 Assess the ethical and legal issues arising from safeguarding, including the impact of cultural
practices on a child’s health (4, 5a, 7a, 7c, 7f)
 Outline the ethical and legal issues relating to neonatal care, including arguments about the
appropriate goals of, and limits to, treatment (2c, 4)

These objectives are taken from the Institute of Medical Ethics’ Core Curriculum for Undergraduate
Medical Ethics and Law (2019), designed to ensure that your learning in this area covers the
requirements of the GMC’s Outcomes for Graduates (2018) – shown in brackets in the objectives
above.

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Children and consent to treatment

The principles
This topic was introduced earlier in the course, in the unit on consent, capacity and best interests.
Here we consider the position of ‘minors’ - a legal term to describe children and young people under
the age of 18.

Remember that the MCA 2005 only applies to patients aged 16 or over. Children who lack capacity
are treated on the basis of proxy consent, usually provided by a person with parental responsibility,
whereas children who are able to give their own consent may do so.

The leading case on consent in children is Gillick v West Norfolk And Wisbech Area Health
Authority and Department of Health and Social Security [1985] 3 WLR 830.

The legal position was considered by the European Court of Human Rights in the case of MAK and
RK v the United Kingdom (which concerned consent to medical investigations in a case of suspected
child abuse). The following extract from the judgment summarises the English law relevant to the
facts of that particular case:

23. Section 8 of the Family Reform Act 1969 provides as follows:

“Consent by persons over 16 to surgical, medical and dental treatment

(1) The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental
treatment which, in the absence of consent, would constitute a trespass to his person, shall be as
effective as it would be if he were of full age; and where a minor has by virtue of this section given an
effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent
or guardian…

Under the provisions of the FLRA 1969, young people aged 16-17 are presumed competent to give
their own consent to treatment. The consent of a parent is not required, if you have the young person’s
consent.

24. In relation to children under the age of sixteen, the House of Lords has held that such minors have
the right to consent on their own behalf to a variety of medical procedures, as long as they fully
understand what is involved. Until the child achieves the capacity to consent, however, the parental
right to make the decision continues save only in exceptional circumstances (see Gillick v West
Norfolk and Wisbech Area Health Authority [1986] AC 112).

Children aged under 16 are presumed to lack the capacity to consent to treatment, and parental
consent is required for medical treatment. However, following the Gillick case, it has been established
that a child under 16 who understands the nature, purpose and possible consequences of any proposed
medical treatment is considered to have legal capacity to consent. If the child has capacity, his or her
consent is sufficient and parental consent is not required.

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25. The General Medical Council (“GMC”) guidelines for doctors in relation to obtaining consent for
the treatment of children provide as follows:

“23. You must assess a child's capacity to decide whether to consent to or refuse proposed
investigation or treatment before you provide it. In general, a competent child will be able to
understand the nature, purpose and possible consequences of the proposed investigation or treatment,
as well as the consequences of non-treatment. Your assessment must take account of the relevant laws
or legal precedents in this area. You should bear in mind that:

At age 16 a young person can be treated as an adult and can be presumed to have capacity to decide;

Under age 16 children may have capacity to decide, depending on their ability to understand what is
involved;

Where a competent child refuses treatment, a person with parental responsibility may authorise
investigation or treatment which is in the child's best interests. The position is different in Scotland,
where those with parental responsibility cannot authorise procedures a competent child has refused.
Legal advice maybe helpful on how to deal with such cases.

In England and Wales, a parent may consent to treatment on behalf of a competent child (i.e. a young
person aged 16-17 who is presumed competent OR a child under 16 who has established
competence). Therefore, a refusal of treatment by a minor may be overridden, with parental consent.
This is not the case in Scotland. Ethically, overriding a competent refusal of treatment may be viewed
as an act of hard paternalism (overriding an autonomous decision because of the harmful outcomes
likely to arise as a result of that decision) and should not be undertaken lightly.

Where a child under 16 years old is not competent to give or withhold their informed consent, a
person with parental responsibility may authorise investigations or treatment which are in the child's
best interests. This person may also refuse any intervention, where they consider that refusal to be in
the child's best interests, but you are not bound by such a refusal and may seek a ruling from the court.
In an emergency where you consider that it is in the child's best interests to proceed, you may treat the
child, provided it is limited to that treatment which is reasonably required in that emergency.

Parents are the decision-makers for children under 16. They may authorise treatments, in the child’s
best interests and they may refuse treatments that they judge to be against the best interests of the
child. Note the similarity to the powers of a donee of an LPA to consent to and refuse treatment for an
adult who has lost capacity, with an obligation to act in that person’s best interests. If the parents
appear to be making decisions that are not in the best interests of the child, doctors may provide
emergency treatment and seek a ruling from the court to authorise non-emergency treatment.

Under 16 16-17
Presumed not competent, but may be found Presumed competent
competent
Can give own consent only if found competent, Can give own consent
otherwise, parental consent required
Child’s refusal can be overridden by parental Young person’s refusal can be overridden by
consent parental consent

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A note on parental responsibility

Mother (always) Father (if not married to the A step-parent in a marriage or

Father (if married to the
mother at the time of birth)
Automatically has parental
responsibility
mother at the time of birth) civil partnership with a parent
who has PR
May acquire PR by: May acquire PR by:
•Being registered as the child's •Making a Parental
father at birth, so long as Responsibility Agreement with
registration took place after 1 all parents with parental
December 2003. responsibility;

•Entering into a Parental •Obtaining a Residence Order

Responsibility Agreement with or Parental Responsibility
the mother Order from the court;

•Applying for and obtaining a •Adopting the child.

Residence Order or a Parental
Responsibility Order from the
Court.

•Being appointed the child's

guardian; but only once that
appointment takes effect
subsequently marrying the child's
mother.

Both parents with parental responsibility must agree before a child is removed from the UK for a
period exceeding one month and for such things such as a change of name. If this agreement is not
forthcoming the question will have to be referred to the Court for leave by way of an application for a
specific issues order.

Not having parental responsibility will not relieve a father of his obligation to maintain his child and
pay maintenance.

A person with parental responsibility may not surrender or transfer any part of that responsibility;
unless the child is adopted.

Parental responsibility in the context of surrogacy arrangements is considered in the materials for
CEL 9 (Reproduction).

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Disagreements about the Best Interests of a child
How should a doctor proceed if the parents of a child who lacks the capacity to make a treatment
decision refuse to authorise treatment that you believe to be in the child’s best interests? Or, as in
recent highly publicised cases, oppose the withdrawal of treatment that doctors feel is no longer in the
best interests of the child? In our society, parents are usually considered to be the people best placed
to determine the overall best interests of a child. This is, in part, the justification for granting them the
power to make proxy decisions. This implies two duties:

1) to ensure that the parents are fully informed about diagnosis, prognosis and the pros and cons
of all the treatment options and

2) to give careful consideration before overriding the decision of the parent (bearing in mind
also the effect that this could have on the child’s care in the future).

However, in an emergency it may be necessary to override the decision of a parent, in the best
interests of the child, after as full a discussion as is practical in the circumstances (possibly including
taking legal advice). When more time is available, you must apply to the courts for authorisation
before overriding parental refusal.

Links to the court judgments for some of the recent cases involving disagreements between parents
and treating teams about the best interests of a child are available on MedEd.

Confidentiality of competent minors

If a child or young person is competent to make their own treatment decision, it is not necessary for
the doctor to consult the parents to seek consent for treatment. Therefore, if the child or young person
states that they do not wish to have their parents involved, you should respect confidentiality (unless a
legal obligation or the public interest defence applies, e.g. if you have child protection concerns).
However, good practice (outlined in the Fraser Guidelines which arose from the Gillick case) would
generally be to suggest to the child /young person that they do discuss their treatment with their
parents, so that their parents can support them. An exception to this would be where there is genuine
concern that the child/young person would be at risk if they confided in their parents.

These issues tend to arise around contraception and sexual health consultations involving children and
young people. Note that another principle decided in Gillick is that prescribing contraception to a
child under the age of 16 does not amount to aiding and abetting unlawful intercourse with a minor –
it is preventing harm (unwanted pregnancy) which could arise from something which is going to
happen because the child has decided to have sex, or is already doing so, regardless of whether or not
they have access to contraception. However, you should be alert to the possibility of abuse if the child
is very young or immature or there is a big age gap or power difference between the child and their
partner.

Withdrawing life sustaining treatment from children : RCPCH guidance

The RCPCH believes that there are three sets of circumstances when treatment limitation can be
considered because it is no longer in the child's best interests to continue, because treatments cannot
provide overall benefit:

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When life is limited in quantity
If treatment is unable or unlikely to prolong life significantly it may not be in the child's best interests
to provide it. These comprise:
A. Brain stem death, as determined by agreed professional criteria appropriately applied
B. Imminent death, where physiological deterioration is occurring irrespective of treatment
C. Inevitable death, where death is not immediately imminent but will follow and where
prolongation of life by LST confers no overall benefit.

When life is limited in quality

This includes situations where treatment may be able to prolong life significantly but will not alleviate
the burdens associated with illness or treatment itself. These comprise:
A. Burdens of treatments, where the treatments themselves produce sufficient pain and suffering
so as to outweigh any potential or actual benefits
B. Burdens of the child's underlying condition. Here the severity and impact of the child's
underlying condition is in itself sufficient to produce such pain and distress as to overcome
any potential or actual benefits in sustaining life
C. Lack of ability to benefit; the severity of the child's condition is such that it is difficult or
impossible for them to derive benefit from continued life.

Informed competent refusal of treatment

An older child with extensive experience of illness may repeatedly and competently consent to the
withdrawal or withholding of LST. In these circumstances and where the child is supported by his or
her parents and by the clinical team there is no ethical obligation to provide LST.
In situations other than those described, or where there is uncertainty about the nature of the child's
condition or its likely outcome, treatment should be continued until greater certainty is possible. The
degree of certainty should be proportionate to the gravity of the decision to be taken. Adequate time
must be allowed to collect evidence and this may entail obtaining second opinions from clinicians
with appropriate skills, knowledge and expertise of the child's condition.

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Child protection

Issues around safeguarding children can be particularly difficult to handle in primary care, where both
child and potentially abusive parent may be your patient, but difficulties can also arise in paediatrics,
A&E and psychiatry, when you may become party to information that suggests a parent may be
causing physical or emotional harm to a child through physical, sexual or emotional abuse or through
neglect.

Ethically, the problem may be viewed as a balancing act. On the one hand, you have a duty of
confidentiality to your patients and the principle of non-maleficence requires that you avoid causing
harm by making unwarranted allegations that could damage trust in you, relationships within a family,
or result in a child being kept away from healthcare by fearful parents in the future. On the other hand,
your primary responsibility is to the well-being of the child or children concerned. You have a duty of
care to your patients (child or adult) who may be in need of support and the principle of beneficence
requires that you try to help. Legally, your duties are outlined in the Children Act 1989.

In summary:
 Always take action if you have any concerns at all that a child may be at risk of abuse or
neglect.
 The Child Safeguarding lead for your organisation is your first port of call.
 If the child is not at immediate risk, the Common Assessment Framework provides a structure
for gathering and sharing information, requesting additional support for the child and family,
and triggering a multi-agency response, if necessary.
 If the child is suffering, or likely to suffer, significant harm, refer to social services for a s47
assessment.
 A local authority social worker must then make an assessment and a decision, within one
working day, about the type of response that is required.
 A range of responses are available, up to and including removing the child to a place of
safety.
 Always co-operate fully with assessments.
 Never assume that someone else will take action – make sure you know who is taking
responsibility for what.
 Never delay emergency action to protect a child from harm
 Always record in writing concerns about a child’s welfare, including whether or not
further action is taken
 Always record in writing discussions about a child’s welfare. At the close of a discussion,
always reach a clear and explicit recorded agreement about who will be taking what
action, or that no further action will be taken.

The interests of the child are paramount.

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(Source: GMC website. The paragraph references relate to the GMC guidance on Child Protection,
which you can download from the GMC website. This guidance is also available as an interactive
decision tool)

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What happens when you report concerns?

Statutory assessments under the Children Act 1989

The purpose of the assessment is always:
 to gather important information about a child and family;
 to analyse their needs and/or the nature and level of any risk and harm being suffered by the
child;
 to decide whether the child is a child in need (section 17) and/or is suffering or likely to suffer
significant harm (section 47); and
 to provide support to address those needs to improve the child's outcomes to make them safe.

Every assessment should be child centred. Where there is a conflict between the needs of the child
and their parents/carers, decisions should be made in the child's best interests.

Within one working day of a referral being received, a local authority social worker should make a
decision about the type of response that is required and acknowledge receipt to the referrer.

For children who are in need of immediate protection, action must be taken by the social worker, or
the police or NSPCC if removal is required, as soon as possible after the referral has been made to
local authority children's social care (sections 44 and 46 of the Children Act 1989).

Where there is a risk to the life of a child or a likelihood of serious immediate harm, local authority
social workers, the police or NSPCC should use their statutory child protection powers to act
immediately to secure the safety of the child.

If it is necessary to remove a child from their home, a local authority must, wherever possible and
unless a child's safety is otherwise at immediate risk, apply for an Emergency Protection Order
(EPO). Police powers to remove a child in an emergency should be used only in exceptional
circumstances where there is insufficient time to seek an EPO or for reasons relating to the immediate
safety of the child. An EPO, made by the court, gives authority to remove a child and places them
under the protection of the applicant.

When considering whether emergency action is necessary an agency should always consider the needs
of other children in the same household or in the household of an alleged perpetrator.

The local authority in whose area a child is found in circumstances that require emergency action (the
first authority) is responsible for taking emergency action. If the child is looked after by, or the subject
of a child protection plan in another authority, the first authority must consult the authority
responsible for the child. Only when the second local authority explicitly accepts responsibility (to be
followed up in writing) is the first authority relieved of its responsibility to take emergency action.

(Source: Working together to safeguard children (2013) Department of Education)