Informed Consent & Decision Making

In this series of articles, our medical students will discuss a range of topics from medical ethics to the NHS to public health to medical conditions to clinical governance

Most of us take the ability to make decisions for granted, but how would we feel if that ability was taken away from us? We would probably feel out of our comfort zone as we wouldn’t be able to control what was happening to us. We would also probably fear the unknown. Luckily, there are only certain circumstances where we cannot decide on our own medical treatment.

The most common times when making a medical decision is out of one’s hands is when the person is underage, when they are unconscious and when they have lost capacity to understand their condition or the treatment options. In this article, I am going to focus on medical treatment to children under the age of 16.

Young People & Consent

When a young person turns 16, it is presumed that they have the capacity to consent to their treatment as they should understand their medical condition and the treatment options, unless proven otherwise. However, if they are under the age of 16, before they can make a medical decision, they must prove that they have the capacity co consent, which depends on how mature the child is to understand what their treatment requires. To do this, you must talk to the child about several factors:

  • That there is a decision that they must make

  • The decision they will eventually make will have consequences

  • The nature of their illness

  • The nature of the interventions they could have

  • The risks and benefits of each intervention, or no intervention

  • The long-term consequences of each option

For consent to be valid, it must be voluntary and informed, and the person consenting must have the capacity to make the decision. ~ The NHS

Judging Competency

If the child can understand this information and reiterate it back to you, you can assume that they have the capacity to understand the treatment and therefore can decide for themselves if they have the treatment or not. They are therefore Gillick competent, which is the term used for a child that can consent to their own treatment. However, if they don’t have the capacity to understand what the treatment is, parents or carers are asked for consent. If the parents are unable to come to an agreement about the treatment, then legal advice can be sought from the court.

Children under the age of 16 can consent to their own treatment if they're believed to have enough intelligence, competence and understanding to fully appreciate what's involved in their treatment. This is known as being Gillick competent. ~ The NHS

It is found that a child is more likely to be competent if they are in the presence of a supportive and affectionate parent, are able to put trust in the doctor-patient relationship and the information that is presented to them is presented in an suitable way. The child should also be free from pressure.

Refusing Treatment

If the child is competent and still refuses a potentially life saving treatment, that’s where the situation gets complicated. In Scotland, if a child is competent and refuses a treatment, the parents are unable to override their decision by law. However, in England, Wales and Northern Ireland, the law is more complicated. Their decision can be overruled by the Court of Protection. The parents of the young person who has refused treatment may consent for them, but it is usually best to go through the courts. This leads to nearly every competent young person who refuses treatment being made to have the treatment due to court rulings, which has led to controversy.

If a child lacks the capacity to consent, you should ask for their parent’s consent. It is usually sufficient to have consent from one parent. If parents cannot agree and disputes cannot be resolved informally, you should seek legal advice about whether you should apply to the court. ~ The GMC

Fraser Guidelines

When a young person goes to the doctors about obtaining contraceptives, the guidelines to check their competence are slightly different. They are called the Fraser Guidelines:

  • That the girl would understand the clinician’s advice

  • That the clinician cannot persuade her to tell her parents or to allow the clinician to tell them that she is seeking contraceptive advice

  • That she is very likely to begin or continue to have sexual intercourse with or without contraceptive treatment

  • That unless she receives contraceptive advice or treatment her physical and mental health, or both are likely to suffer

  • That her best interests require the clinician to give her contraceptive advice, treatment or both without parental consent

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