In order for consent to be valid according to the Department of Health guidance the following criteria must be met:

  • Given voluntarily
  • Person appropriately informed
  • Person has the capacity to consent to the intervention in question
  • Be the patient OR someone with parental responsibility (PR) for a patient under the age of 18

In Britain we may face opposition to this by carers if they attend clinics with a generic form signed by the person with (PR) to say that they can give consent for medical interventions. Although this may have been given voluntarily and with capacity, a generic form can NEVER be informed – and therefore this is NOT valid consent.

Gillick CompetenceYoung AdultsParental ResponsibilityLooked After ChildrenGaining ConsentGeneral AnaestheticReferences

This applies to:

  • Children under 16
  • Sufficient understanding and intelligence
  • Understand fully the proposed intervention

In the case of Gillick, which was a court case regarding whether a person with PR needs to be involved in the decision to prescribe contraception to a patient under 16 years, the courts (Lord Fraser) ruled that you must ask a patient under 16-year-old to involve the person with PR in their treatment. However, if they refuse you can take their consent as valid as long as they have sufficient understanding and intelligence to fully understand the proposed intervention.

If you deem the child not to have this understanding- they are deemed to be a child lacking capacity and therefore the person with PR must be contacted.

Family Law Reform Act 1969

  • Aged 16 or 17 are presumed to be capable of consenting to their own medical treatment, and any ancillary procedures involved in that treatment, such as an anaesthetic.
  • Consent will be valid only if it is given voluntarily by an appropriately informed young person capable of consenting to the intervention.
  • The refusal of a competent person aged 16–17 may in certain circumstances be overridden by either a person with parental responsibility or a court.

Young adults are another exception as the age bracket of under 18 but over 16 is controlled by the Family law reform act 1969.

This states that anyone over 16 should have the right to consent to their own medical treatment.

A case in America has amended the DOH guidelines for this as a 17 year old girl was refusing treatment for anorexia, this was overridden by the parents and taken to court – the parents won.

Who has it?

  • The child’s mother
  • The child’s father if he is on the birth certificate
  • The child’s father, if he was married to the mother at the time of birth
  • The child’s legally appointed guardian
  • A person in whose favour the court has made a residence order concerning the child
  • A local authority designated in a care order in respect of the child

Unmarried fathers

After 1st December 2003:

  • Register on the child’s birth certificate jointly with the mother at the time of birth
  • Re-register the birth if they are the natural father
  • Marry the mother of their child
  • Register with the court for parental responsibility

Although this initially looks complicated, as a general rule, anyone who has parental responsibility which has been given by a court will know and have the documentation as it is a long process.

According to the Children’s Act 1989, section 22 entitled “General duty of local authority in relation to children looked after by them” a child is legally defined as ‘looked after’ by a local authority if he or she:

  • is provided with accommodation for a continuous period for more than 24 hours
  • is subject to a care order; or
  • is subject to a placement order

If a care order is in place the local authority will have PR and also be able to determine to what extent the parent/guardian may have PR. For example the parent may have shared PR with the local authority or full or none depending on the situation.

Placement order is where the child is placed with prospective adopters which is complex as they get PR shared with birth parent and local authority as soon as child placed with them until the adoption paperwork is complete.

On the paediatric department written consent is usually gained for:

  • Treatment under general anaesthetic
  • Treatment under inhalation sedation
  • Extractions under local anaesthetic

There are two waiting lists for general anaesthetic in the UK

1. Exodontia

  • This is a waiting list for children requiring extractions only.
  • Consent for extraction must be taken for teeth noticed in the mouth to have any decay plus “any other teeth as necessary (including anterior teeth) to achieve oral health” see below.

2. Comprehensive care

  • This is a waiting list for both restorative and extraction cases.
  • Consent needs to be as accurate as possible – “fillings and extractions as necessary” is not acceptable unless the only way to examine the child is with general anaesthesia. (e.g. “ Proposed Treatment: General anaesthetic and local analgesia for the extraction of at least one adult tooth and four primary teeth, restoration of 3 adult teeth and any other restorations and extractions as needed to secure oral health”)
  • Need to consent for radiographs if planning to take these whilst the child is in theatre.
  • Need to consent for extraction of further permanent teeth if restoration is not possible (if the caries is so deep the tooth is not restorable).

GOV.UK. (2020). Reference Guide To Consent For Examination Or Treatment (Second Edition). [online] Available at: https://www.gov.uk/government/publications/reference-guide-to-consent-for-examination-or-treatment-second-edition

Legislation.gov.uk. (2020). Family Law Reform Act 1969. [online] Available at: http://www.legislation.gov.uk/ukpga/1969/46

Legislation.gov.uk. (2020). Children Act 1989. [online] Available at: http://www.legislation.gov.uk/ukpga/1989/41/section/22

Legislation.gov.uk. (2020). Mental Capacity Act 2005. [online] Available at: http://www.legislation.gov.uk/ukpga/2005/9/contents

See also Behaviour Management