Assessing Decision Making Capacity In Under 16s

Legal and ethical

Assessing decision-making capacity: children under 16 Richard Griffith

Abstract Consent is a fundamental element of the lawfulness of treatment. It upholds the principle of autonomy and a person’s right to decide whether or not to have treatment. This right to decide presupposes an ability to make decisions. Decision making capacity is the key to a person’s autonomy and it is essential that nurse prescribers are able to assess whether the patients in their care have the necessary capacity to make decisions about their care and treatment. This article considers the test for decision making capacity for children younger than 16 years of age.

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urse prescribers have patients of all ages on their case load and it is essential that any care or treatment delivered to them is within the law. Consent is an essential element of the lawfulness of treatment. It provides a defence to criminal assault and the tort or civil wrong of trespass to the person (F v West Berkshire HA [1990]). In a health context, consent has a more fundamental objective. Lord Mustill in Airedale NHS Trust v Bland [1993] wondered why nurses can with impunity

perform acts on people that would be crimes if done by ordinary citizens. He held that (Airedale NHS Trust v Bland [1993] (Lord Mustill at 889): ‘The reason why the consent of the patient is so important is not that it furnishes a defence in itself, but because it is usually essential to the propriety of medical treatment’ Unless a valid consent is present, or consent is dispensed with by operation of

law, such as in an emergency, the acts of nurses would lose their immunity. Consent is a state of mind personal to the patient where they agree to the violation of bodily integrity (Sidaway v Bethlem Royal Hospital [1985]). It has a clinical and legal purpose. The clinical purpose recognizes that the success of treatment very often depends on the cooperation of the patient. The legal purpose is to underpin the propriety of the treatment and furnish a defence to the crime and tort of trespass.

The right to decide In Re T (Adult: Refusal of Treatment) [1992] the Court of Appeal held that the right to decide presupposes an ability, a capacity, to do so. Decision making capacity is the key to autonomy. If a patient has capacity then their decision is binding. If not, then they may receive treatment in their best interests.

Determining capacity Nurse prescribers may have children under 16 years on their case load. In general, the child will be seen with a parent whose consent will be obtained before treatment as the courts acknowledge that parents are usually the best judge of what is best for their child’s welfare (R (on the application of Axon) v Secretary of State for Health [2006]). Some children, however, may seek treatment without the knowledge of their parents and nurse prescribers will need to decide whether the child is able to give a valid consent to treatment.

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Richard Griffith is Lecturer in Health Law at the Centre of Philosophy Law and Health care, University of Wales, Swansea. Email: [email protected]

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The Gillick competent child The issue over whether a child under 16 years has the necessary capacity to consent to medical examination and treatment was decided by the House of Lords in Gillick v West Norfolk and Wisbech AHA [1986]. In this case a mother of girls under 16 years objected to Department of Health advice that allowed doctors to give contraceptive advice and treatment to children without parental consent. Their Lordships held that a child under 16 years had the legal capacity to consent to medical examination and treatment if they had sufficient maturity and intelligence to understand the nature and implications of that treatment. The test for Gillick competence Nurse prescribers must apply the rule in Gillick when determining whether a patient under 16 years has the capacity to consent to examination and treatment. When determining whether a child has sufficient maturity and intelligence to make a decision, nurse prescribers will need to take account of: n The understanding and intelligence of the child n Their chronological, emotional and mental age n Their intellectual development n Their ability to reach a decision by appraising the advice about treatment in considering the nature, consequences and implications of that treatment (Gillick v West Norfolk and Wisbech AHA [1986] per Lord Scarman). The aim of the rule in Gillick is to reflect the transition of a child to adulthood. Legal capacity to make

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Children reach the age of majority or adulthood at 18 years. However, while the courts acknowledge that no child under 18 years is wholly autonomous, they do recognize the right of a child to consent to medical treatment as they develop and mature with age. Age however, is not the determining factor for decision making capacity. In law, capacity is based on a person understanding and using treatment information. It must not be based on a person’s age, appearance or behaviour.

decisions is conditional on the child gradually acquiring the maturity and intelligence to be able to make treatment decisions. The degree of maturity and intelligence needed depends on the gravity of the decision. A relatively young child would have sufficient maturity and intelligence to be capable of consenting to a plaster on a small cut. Equally, a child who had the capacity to consent to dental treatment or the repair of broken bones may lack capacity to consent to more serious treatment (Re R (A minor) (Wardship Consent to Treatment) [1992]). Decision making capacity therefore does not simply arrive with puberty; it depends on the maturity and intelligence of the child and the seriousness of the treatment decision to be made. For example, a nurse prescriber giving contraceptive advice and treatment to a child will realize there is much to be understood by the child if they are to have capacity to consent. The nurse prescriber would need to be satisfied that not only was the advice understood but that the child had sufficient maturity to understand what was involved. This would include: n Moral and family questions such as the future relationship with parents n Long-term problems associated with the emotion of pregnancy or its termination n The health risks associated with sexual intercourse at a young age.

The more serious the consequences of treatment the greater the capacity required. For example, in Re L (Medical Treatment: Gillick Competence) [1998] a 14 year old Jehovah’s Witness was badly burned and refused consent to operations involving blood transfusions. The court considered that although she was intelligent, her upbringing in a narrow religious family meant she was naïve and that, as she matured, she would question her religion further and on that basis she was not Gillick competent and could not give a valid refusal of treatment. A similar conclusion was reached in Re E (A Minor) (Wardship: Medical Treatment) [1993] where a 15 year old Jehovah’s Witness refused blood products. The court found the child was not Gillick competent because he was not aware of the harrowing manner of his likely death and therefore, did not have a full understanding within the meaning of Gillick. A nurse prescriber must be satisfied that a child has fully understood the nature and consequences of treatment before they can accept their consent or refusal of treatment. It is for the nurse prescriber to decide whether or not a child is Gillick competent and able to consent to treatment. However, the power to decide must not be used as a licence to disregard the wishes of parents whenever the nurse prescriber finds it convenient to do so. Those who behave in

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such a way would be failing to discharge their professional responsibilities and could expect to be disciplined by their professional body (Gillick v West Norfolk and Wisbech AHA [1986]). Where a child is considered Gillick competent then the consent is as effective as that of an adult. This consent cannot be overruled by a parent.

The Law in Scotland The rule in Gillick does not apply in Scotland. Children in Scotland do have a right to consent to treatment under the Age of Legal Capacity (Scotland) Act 1991, section 2(4). This allows a child to consent to medical procedures and treatment where a qualified health professional is of the opinion that the child is capable of understanding the nature and possible consequences of the treatment.

Capacity and confidentiality A nurse prescriber who considers a child

to be Gillick competent owes that child a duty of care. There is no right to notify the parents against the wishes of the child unless it can be justified by one of the exceptions to the duty of confidence (R (on the application of Axon) v Secretary of State for Health [2006]). The need for a duty of confidence is seen as crucial to a child’s treatment. If a duty of confidentiality was not imposed this ‘would probably or might well deter young people from seeking advice and treatment’ (R (on the application of Axon) v Secretary of State for Health [2006] per Justice Silber at 46). The duty of confidence extends to access to health records. Disclosure of a Gillick competent child’s health record cannot occur without the consent of the child (Data Protection Act 1998).

Can parents continue to consent? Although both the courts and parliament allow children to make treatment decisions for themselves as they mature the Courts hold that no minor—that

is, a child under 18 years—is a wholly autonomous being (Re M (A Child) (Refusal of Medical Treatment) [1999]). Unlike competent adults who are free from the power of others, if a child under 18 years refuses medical examination or treatment then the law does allow others to consent even if the child has capacity. Lord Donaldson summed up the position when he held that (Re W (A minor)(Medical treatment court’s jurisdiction) [1992] per Lord Donaldson MR at 641): ‘I now prefer the analogy of the legal ‘flak jacket’ which protects the doctor from claims by the litigious whether he acquires it from his patient, who may be a minor over the age of 16 or a ‘Gillick competent’ child under that age, or from another person having parental responsibilities which include a right to consent to treatment of the minor. Anyone who gives him a flak jacket (ie consent) may take it back, but the doctor only needs one and so long as he continues to have one he has the legal right to proceed.’ Where a nurse prescriber accepts the consent of a Gillick competent child to medical examination or treatment that consent cannot be overruled by the child’s parent. However, where the same child refuses consent, then they may obtain it from another person with parental responsibility who has the right to consent to treatment on the child’s behalf.

Conclusions

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Consent is a necessary component for the propriety of examination and treatment. Nurse prescribers require a valid consent or other operation of law, such as an emergency, before they can examine or treat a patient, whether this is a child or adult. For children it can be seen that at both statute and common law a minor under 16 years is given the legal right to consent to treatment as they develop and mature towards adulthood. As a child matures to adolescence the courts allow the child to consent to examination and treatment where a nurse prescriber is satisfied that they have sufficient maturity and intelligence

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to fully understand the implications of the decision they are making. The graver the decision, the greater the maturity and intelligence required to reach capacity as there will be much for the child to take in and understand. With decision making capacity comes a duty of confidentiality and a nurse prescriber cannot disclose information about the child without permission or other exception to the duty. Gillick competent children are given a right to consent treatment that cannot be overruled by parents. However, the courts acknowledge that no child is wholly autonomous and so, if a child with capacity refuses treatment a valid consent may be sought from the child’s parent or ultimately, a court. When assessing the competence of a child under 16 years in relation to examination or treatment, nurse prescribers will need to be satisfied that the child is able to fully appraise the complex issues that need to be taken into account before they can safely proceed on the basis that the child has capacity to consent to treatment.

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Key Points ■ Courts acknowledge that parents are usually the best judge of what is in the interests of their child’s welfare.

■ A child under 16 years has the capacity to consent to medical examination

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and treatment if they have sufficient maturity and intelligence to understand the nature and implications of that treatment. Decision making capacity does not simply arrive with puberty; it depends on the maturity and intelligence of the child and the seriousness of the treatment decision to be made. The rule in Gillick does not apply in Scotland where the right of a child to consent is provided for by the Age of Legal Capacity (Scotland) Act 1991, section 2(4). A nurse prescriber who considers a child to be Gillick competent owes thatchild a duty of care Where a Gillick competent child refuses consent the nurse prescriber may obtain it from a person with parental responsibility for the child.

References Airedale NHS Trust v Bland [1993] AC 789 F v West Berkshire HA [1990] 2 A.C. 1 (HL) Gillick v West Norfolk and Wisbech AHA [1986] AC 112 ((HL))

Re L (Medical Treatment: Gillick Competence) [1998] 2 FLR 810 Re M (A Child) (Refusal of Medical Treatment) [1999] 2 FLR 1097 ((CA)) Re T (Adult: Refusal of Treatment) [1992] 3 WLR

R (on the application of Axon) v Secretary of State for Health [2006] EWHC 37

Re W (A minor)(Medical treatment court’s jurisdiction) [1992] 3 WLR 758

Re E (A Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386

Sidaway v Bethlem Royal Hospital [1985] AC 871

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