Providing treatment to children and young people is not usually problematic but occasionally issues do arise. Here we look at some of the key legal and ethical issues relating to the provision of treatment for this group of patients; detailed information and guidance can be found in our core ethics guidance.

Specific ethical issues with young people

Consent to treatment from competent children, and young people under 16, or from those with parental responsibility where they lack competence, renders treatment lawful. 

There are occasions where competent children or young people seem to be making decisions that might damage their wellbeing. Rarely, parents make decisions that do not seem to be in the best interests of their children. Both of these situations can give rise to acute dilemmas for medical professionals.

The growth of autonomy

Physically, emotionally, and mentally, children grow at different rates. Where children lack the ability to make informed decisions on their own behalf, decisions have to be made for them. As children grow towards adulthood, these welfare-based decisions gradually give way to a respect for their decision-making competence.

Although all adults are presumed to have the capacity to make decisions on their own behalf, practically speaking this assumption is reversed for children and young people under the age of 16. The ethical challenge is being able to identify when a concern for children’s welfare needs to start giving way to a respect for their choices.

Consent for under 18s

A young person of any age can give valid consent to treatment or examination provided they are considered competent to make the decision (this is often referred to as being ‘Gillick competent’). At the age of 16, as with adult patients, there is a presumption that the patient has the capacity to give valid consent. Where the child or young person under the age of 16 lacks competence, or a young person aged 16 or 17 lacks capacity, a person – or a local authority – with parental responsibility can give consent on the patient’s behalf. As discussed below, a decision by a child or young person to refuse treatment can in some circumstances be overridden.

Parental responsibility

Parental responsibility is a legal concept relating to the authority to make decisions on behalf of children. Mothers automatically have parental responsibility but not all biological fathers do. A child’s biological father has parental responsibility if they are registered on the child’s birth certificate or are married or in a civil partnership with the mother.

Biological fathers who are not named on the birth certificate or married to, or in a civil partnership with, the child’s mother may acquire parental responsibility by order or agreement.

If there's an emergency

In an emergency, if the child or young person cannot give consent and nobody with parental responsibility is available, legally and ethically treatment that is necessary to preserve their life, health, or wellbeing can be given. An emergency can probably best be described as a situation where the requirement to provide treatment is so pressing that there is not time to seek alternative sources of consent.

What the law says

"Emergency, parental neglect, abandonment of the child, or inability to find the parent are examples of exceptional situations justifying the doctor proceeding to treat the child without parental knowledge and consent."

Lord Scarman. Gillick v West Norfolk and Wisbech Area Health Authority ([1985] 3 All ER 402).

Can a competent child or young person refuse treatment?

Although capacity to consent and to refuse treatment would appear two sides of the same coin, in England, Wales, and Northern Ireland, a competent refusal by a patient under 18 can be overruled by a court. In some circumstances, particularly if the young person’s life is at stake, doctors may still be able to provide treatment, but legal advice should be sought. In Scotland, it appears from current case law and statute that a competent refusal cannot be overridden by any other person, or court, even if that treatment is necessary to save or prolong life. However, this matter is not beyond doubt and legal advice should be sought when such situations arise.

Where a competent young person refuses treatment, the harm caused by overriding their choice and possibly using restraint will need to be balanced against the harm caused by failing to treat.

What’s the moral problem

A young person’s refusal of life-sustaining treatment

A refusal by competent children or young people of treatment necessary to sustain life throws into relief the tension that can arise between the moral obligation to respect their developing autonomy and the obligation to intervene to promote their welfare. Where autonomy is thought to be developing, intervening to protect life can also protect an individual’s ability to exercise more fully-fledged autonomy in the future. That the courts have shown themselves willing to overturn a competent young person’s refusal of life-sustaining treatment makes it clear that when the outcome may be serious, decisions based on objective assessments of welfare will ordinarily take priority over a respect for children and young people’s autonomy.

If the medical team disagree with the parents

In the overwhelming majority of cases, parents and others with parental responsibility have the child’s interests at heart and are best placed to make decisions for them. Occasionally, the healthcare team may have concerns that a particular decision might not be in a child’s interests.

Parental decision-making rights are linked to the duty to promote the child’s wellbeing and can be set to one side where the welfare of the child is at risk. Where such a disagreement arises, further discussion should take place and a second opinion offered, but it may be necessary to seek legal advice. In the interim, only emergency treatment that is essential to preserve life or prevent serious deterioration should be provided.