The obvious decisional incapacity of the child means that decisions will be made on its behalf usually by one or both parents. Usually, the consent of only one person with parental responsibility is required. Parental decisions should be made in the child’s best interests and the welfare of the child is paramount. The ethical principles of beneficence (doing good) and non-maleficence (avoiding harm) underpin the decision (Beauchamp & Childress 2001). Doctors have dual obligations: to act in accordance with a responsible body of medical opinion when identifying treatment options and to act in the best interests of the incompetent patient ( Re S (Sterilisation: Patient’s Best Interests) [2000] 2 FLR 389).

When there is doubt or conflict over what constitutes a child’s best interests, the court may be asked to decide. Education and communication are preferable to litigation, which can polarise views because of the adversarial nature of legal decision making in this country. The child might even be lost to medical scrutiny.

Normal childhood development leads to increasing ability to act autonomously (British Medical Association (BMA) 2001 pp 92–104). Alderson & Montgomery (1996) suggest that children as young as 5 years should be deemed as autonomous unless the evidence or the complexity of the decision suggests otherwise. Thus, a young child might be able to consent to a grazed knee being cleaned but not consent to X-rays and surgical resetting of a broken limb.

Nurses can help educate even very young children about medical treatment in a variety of ways. The child’s views can be obtained, even though decisions will ultimately be taken in the child’s best interests.

Maturity and insight into medical treatment has to be measured on an individual basis. A 10-year-old child who has undergone years of treatment for leukaemia might be sufficiently competent to make his or her own decisions regarding further chemotherapy. In Gillick v West Norfolk and Wisbech AHA [1986] AC112 at p114, the House of Lords held that a child under the age of 16 can consent to medical treatment if she had ‘sufficient understanding and intelligence to enable her to understand fully what was proposed’. It is for the doctors to decide whether the child has a ‘full understanding and appreciation of the consequences both of the treatment in terms of intended and possible side effects and equally important, the anticipated consequences of a failure to treat’ ( Re R (a minor) (wardship: consent to treatment) [1992] Fam 11 at p26 per Lord Donaldson MR). In this case, the girl who suffered from psychosis was deemed incompetent due to her fluctuating understanding.

‘Gillick competent’ children can consent to medical treatment even if their parents are opposed to it: ‘parental right yields to the child’s right to make his own decision’ (per Lord Scarman), although their rights to refuse treatment are more limited. Their confidentiality should be upheld so their parents have no right to know that they have sought treatment. In Re B (wardship: abortion) [1991] 2 FLR 426, a 12-year-old girl was held to be ‘Gillick competent’ and could consent to a termination of pregnancy, although the court also said that had she not been competent the termination would be allowable in her best interests. Nurses should encourage children to involve their parents, particularly when surgery is proposed.

PROFESSIONAL CONVERSATION
Anne, a registered children’s nurse on Part 15 of the professional Nursing and Midwifery Council (NMC) register works in Accident and Emergency.

Gillick competency, confidentiality and partnerships in care

I was on duty when a 13-year-old girl Muslim girl was brought in with abdominal pains. The doctor found she was 4 months pregnant and bleeding per vagina. She was very frightened and upset. Her parents were waiting outside asking what was wrong with her. I didn’t know how to do my best for her. The doctor said she was Gillick competent but she seemed very immature to me so I wasn’t sure. But I thought, ‘If her parents are told what is wrong, what might happen to her?’ All I could think of was reading in a newspaper about a Muslim girl who got pregnant and her family killed her for dishonouring it.

The Family Law Reform Act 1969 s8(1) States that:

‘Treatment’ includes diagnosis, anaesthesia and ancillary procedures.

Competency can be affected by learning disabilities, mental illness or other conditions. Where the parent is obviously incompetent, consent must be obtained from another person with parental responsibility or the court. In the case of adults and children over 16 years, competency requires being able to comprehend and retain the information given and weigh it in the balance to reach a decision: Re C (adult: refusal of treatment) [1994] 1 FLR 31 approved in Re MB (medical treatment: consent) [1997] 2 FLR 1097. Although Anglo-Welsh law does not fully recognise the concept of the emancipated minor, marriage or fighting for one’s country have been deemed to free minors from parental control. Regardless of her age, the girl who becomes a mother has parental responsibility for her child. Her parents will not automatically have parental responsibility for the grandchild. In cases where the child-parent’s ability to consent for her own child is doubtful, it may be necessary to apply to the court.

Duress can invalidate consent, even if it has been applied in the best interests of the patient. Persuasion is acceptable, coercion is not and is likely to cause a breakdown in the relationship between the various parties. Even adults can be placed under duress to accept or reject treatment as in the case of Re T (adult: refusal of treatment) [1993] Fam 95, whose Jehovah’s Witness mother persuaded her to reject blood transfusions. A court later allowed transfusion on the grounds that T was incompetent due to pain and pethidine at the time of her decision and was placed under duress. Children may be less able than adults to withstand emotional pressure. Regarding Re E (a minor)(wardship: medical treatment) [1993] 1 FLR 386, a 15-year-old Jehovah’s Witness boy with leukaemia who was refusing blood transfusions, Brazier & Bridge (1996) question whether his refusal was ‘free choice’.

Duress of circumstances is inadequately recognised within medicine. A 14-year-old may appear ‘Gillick competent’ but her fear of ‘what my parents will say if they find out’ might mean she does not fully consider the risks of abortion.

The World Medical Association’s Declaration of Helsinki 1964 states:

Difficulties arise over provision of information. A balancing act is often performed, which can leave the patient or parent underinformed. The House of Lords decision in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 meant that for years the ‘Bolam test’ for negligence governed the provision of information about benefits, risks and side effects of treatment ( Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; see later). The standard was how much information would the ‘reasonable’ doctor disclose. In the Bristol Royal Infirmary inquiry, Professor Ian Kennedy was critical of the failure by surgeons to provide adequate information about the risks to children undergoing complex heart surgery (Kennedy 2001

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