Parental Responsibility
Before treating or immunising children under the age of 18 years, it is vital to ensure that written consent is obtained from a person legally entitled to give that consent. This guidance is separate and distinct from advice in an emergency scenario. The requirement to obtain written consent is set out in the Department of Health Good Practice in Consent Initiative. Also the 2000 NHS Plan "pledges that proper consent must be sought from all NHS patients". The lack of a written record as evidence of such consent could expose the Clinician to a criminal charge of assault. A copy of a form of written consent (Consent Form 2) will also provide a good record to assist in defence of a civil claim (this would also apply in the treatment of adult patients).
The General Medical Council publication "Good Medical Practice" (2006) provides guidance on consent www.gmc-uk.org.
Who is legally entitled to give consent for a minor?
- The child's birth mother
- The child's birth father if:
- He was married to child's natural mother at the time of the child's birth or married her at a later date
- He has a Residence Order and/or Parental Responsibility Order
- He and the mother have signed a Parental Responsibility Agreement (sealed and registered by the Court)
- The child was born on or after 1st December 2003 and the father's name appears on the birth certificate (this provision is not retrospective)
- Any person who has a Residence Order or Special Guardianship Order
- A Local Authority or NSPCC where a Care Order or Interim Care Order is in force in that organizations favour
- An adoptive parent, where an Adoption Order has been made
- Note: a step-parent or grandparent will not have parental responsibility and therefore will not be entitled to give consent unless he or she has a Residence Order, a Special Guardianship Order, a Parental Responsibility Order, or in the case of step-parents only, a Parental Responsibility Agreement
Guidance and a precedent form of consent is available on the Department of Health website - www.dh.gov.uk. However the guidance appears to pre-date 1st December 2003 and should be read taking into account the updated information set out above.
BMA guidance on Parental Responsibility can be found at www.bma.org.uk.
When a child requests medical treatment, the Clinician must address wider issues of confidentiality and the competence of the child to request such treatment. A child is described as "Gillick competent" if he or she has "sufficient understanding and intelligence to be capable of making up his own mind". The child would then be able to consent to medical treatment, and parental rights will yield to the child's right to make his/her own decision. The issue of confidentiality is addressed in Confidentiality and record keeping in the context of child protection.
Whereas a child may be Gillick competent and have a right to request medical treatment, he or she would not, however, be entitled to refuse treatment.
The issue of Gillick competence is most often raised when a child seeks advice on contraception or sexual health. Wider issues must then be considered, see Sexual Offences Act 2003 - Contraception for minor.
This information is for educational purposes only and is not intended to substitute seeking legal or clinical advice where appropriate. For further legal information, please contact the Law Society of England and Wales at www.lawsociety.org.uk.
This guidance is produced by WardHadaway.
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