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If children have capacity to give consent for themselves, health care professionals are asked to seek consent directly from them. The legal position regarding ‘capacity’ is different for children aged over and under 16.
At 16 years of age, a young person can be presumed to have the capacity to consent to their own treatment, care and non-medical interventions. This means that in many respects they should be treated as adults – for example if a signature on a consent form is necessary, they can sign for themselves.
However, it is still good practice to encourage children who have capacity to involve their families / carers in decision-making.
Where a child with capacity asks a health care professional to keep their confidence, they must do so, unless they can justify disclosure on the grounds that they have reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm if the disclosure is not made.
Health care professionals should however seek to persuade the child to involve their family, unless they believe that it is not in their best interests to do so.
Unlike 16 or 17 year olds, children under 16 are not automatically presumed to have capacity to make decisions about their healthcare. However, the courts have stated that under 16s will have capacity to give valid consent to a particular intervention if they have “sufficient understanding and intelligence to enable him or her to understand fully what is proposed” (sometimes known as “Gillick competence”).
In other words, there is no specific age when a child gains capacity to consent to treatment: it depends both on the child and on the seriousness and complexity of the treatment being proposed. However, a child over 16 is presumed to have capacity.
Health care professionals will help children by involving them from an early age in decisions and encouraging them to take an increasing part in the decisions about their care. This will particularly apply when caring for a particular child over a period of time, for example where the child needs a series of operations.
If a child under 16 has capacity to consent to a particular intervention, it is still good practice to involve their family in decision-making unless the child specifically asks the health care professional not to do so and they cannot persuade the child otherwise.
As with older children, health care professionals must respect any request from a child under 16 years of age with capacity to keep their treatment confidential, unless they can justify disclosure on the grounds that they have reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm if that information is not disclosed.
If a child lacks capacity to consent, consent may be obtained from someone with parental responsibility for the child. However, it is seen as good practice to involve all children (even really young children) in decisions about their care.
This helps clinicians to identify children aged under 16 who have the legal capacity to consent to medical examination and treatment. They must be able to demonstrate sufficient maturity and intelligence to understand the nature and implications of the proposed treatment, including the risks and alternative courses of actions.
An assessment of capacity should be completed in accordance with the Gillick competence test and recorded in the notes as well as the outcome of assessment.
Further information on national recommendations:
Alder Hey Children's Charity