Capacity, Competence & Consent:
The legal framework for the treatment of
children and young people: Is there now
greater respect for the views of children
and young people?
Camilla Parker
Partner, Just Equality
30th January 2013
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Just Equality: Linking Law to Life
Issues Considered
• Human rights standards: children and young
people & mental health care
• Confidentiality & sharing information
• Consent to treatment
• Capacity and competence
• Life-saving treatment
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Just Equality: Linking Law to Life
Autonomy: Only for Adults?
• “A mentally competent patient has an absolute
right to refuse to consent to medical treatment
for any reason, rational or irrational, or for no
reason at all.” Re MB Court of Appeal, 1997
• But note:
• Statement only applies to adults (18 & over)
• Must be “mentally competent”
• MHA 1983 can override refusal
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Just Equality: Linking Law to Life
Human Rights Treaties
United Nations
• 9 core treaties
• Convention on the
Rights of the Child,
1989
• Convention on the
Rights of Persons
with Disabilities, 2006
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Council of Europe
• Convention for the
Protection of Human
Rights and Fundamental
Freedoms (European
Convention on Human
Rights), 1950
(incorporated into UK law
by Human Rights Act
1998)
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Key CRC Rights
• Best interests of the child - primary
consideration in all actions concerning
children (Article 3)
• Respect for the views of the child (Art 12).
• States respect the responsibilities, rights
and duties of parents to make decisions in
relation to their children - this must be ‘in a
manner consistent with the evolving
capacities of the child’ (Article 5).
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CRC: Respect for the views of the child
(Article 12)
o ‘States parties shall assure to the child who is
capable of forming his or her own views the right
to express those views freely in all matters
affecting the child, the views of the child being
given due weight in accordance with the age
and maturity of the child.’
o Underlines children’s status as individuals with
human rights,views and feelings of their own
o No lower age limit
o MHA Code refers to CRC (36.3)
Article 7 CRPD: Children with disabilities
1. States Parties shall take all necessary measures to ensure
the full enjoyment by children with disabilities of all human
rights and fundamental freedoms on an equal basis with
other children.
2. In all actions concerning children with disabilities, the best
interests of the child shall be a primary consideration.
3. States Parties shall ensure that children with disabilities have
the right to express their views freely on all matters affecting
them, their views being given due weight in accordance with
their age and maturity, on an equal basis with other children,
and to be provided with disability and age-appropriate
assistance to realize that right.
(Thus reflects Articles 3 and 12 of CRC)
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Evolving capacities of the child:
Emphasises need to respect and promote development
towards independent adulthood,
Linked to Article 12 CRC: views of the child given due
weight in accordance with age & maturity
Change in guidance: although in past courts have held
Gillick competent child’s refusal could be overridden by
person with parental responsibility:
“...there is no post Human Rights Act decision on this. The
trend in recent cases is to reflect greater autonomy for the
competent under 18s, so it may be unwise to rely on the
consent of a person with parental responsibility.”(MHA Code
36.43)
Article 8 ECHR: Right to Private &
Family Life
• (1) “Everyone has
the right to respect
for his private and
family life, his
home and his
correspondence”
• [Covers: consent
to treatment,
privacy on wards,
confidentiality ]
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• (2) “There shall be no interference
by a public authority with the
exercise of this right except as is
in accordance with the law and is
necessary in a democratic society
in the interests of national
security, public safety or the
economic well-being of the
country, for the prevention of
disorder or crime, for the
protection of health or morals, or
for the protection of the rights and
freedoms of others”
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Confidentiality and sharing information (1)
Children and young people have the same right to
confidentiality as adults.
Where they can make decisions about the use and
disclosure of information they have provided in
confidence this should be respected in same way as
adults.
•For example, they may be receiving treatment or
counselling they do not want their parents to know
about
•BUT in some cases disclosure may be
necessary...
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Confidentiality and sharing information (2)
May need to disclose information to parents in certain
circumstances e.g. where serious harm is suspected.
Disclosure will depend on a number of factors:
• Age, maturity of the child/young person and their ability to
take into account the future as well as the present
• Severity of the mental disorder & the risks posed
• Degree of care and protection required
• Degree of the parent’s involvement in child/young
person’s care
• Closeness of relationship with the parents
• Current competence/capacity of the child/young person to
make a decision about confidentiality (this may fluctuate)
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Authority for Informal Treatment: Overview
CYP’s Consent
• Has
capacity
(16/17) or
competence
(u16)
• Gives valid
consent
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Parental Consent
• Child/young
person
unable to
decide
• Within the
“zone of
parental
control”
MCA 2005
• Lacks
capacity
• Treatment in
best
interests
• Not amount
to
deprivation
of liberty
(DOL)
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Consent to Treatment: Key questions
• Has the child/young person been assessed as able to
make the treatment decision? Consider:
• If under 16 if Gillick competent
• If 16/17 if lacks capacity under the MCA 2005, also
note: may be “overwhelmed”
• If the child/young person is unable to decide:
• Who has parental responsibility (PR)?
• Is this a decision that the parent can authorise?
• Is the person with PR able and willing to consent?
• Do those with PR agree?
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Consent: Summary
The valid consent of a child or young person will be
sufficient authority for their admission to hospital or
treatment for mental disorder.
To give valid consent a child or young person must:
have the capacity/competence to consent to the
particular decision being considered
have sufficient information to make the decision;
and
not be subjected to any undue influence when
making their decision.
Consent: MHA Code 23.31
Consent is the voluntary and continuing
permission of a patient to be given an
particular treatment, based on a sufficient
knowledge of the purpose, nature, likely
effects and risks of that treatment, including
the likelihood of its success and any
alternatives to it.
• Permission given under any unfair or
undue pressure is not consent.
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Consent: importance of information:
(MHA Code 23.31-23.36)
Those seeking consent must use reasonable care and skill in
giving information prior to seeking consent & in meeting
continuing obligation to provide the patient with sufficient
information about proposed treatment & alternatives to it.
•Information given must relate to the particular patient,
treatment and relevant clinical knowledge and practice.
•In every case, sufficient information must be given to the
patient to ensure that they understand in broad terms the
nature, likely effects and all significant possible adverse
outcomes of that treatment, including the likelihood of its
success and any alternatives to it.
•A record should be kept of the information provided
•Invite patient to ask questions
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Must be voluntary (DH Consent Guide)
Although a child or young person may
have the capacity to give consent, this is
only valid if it is given voluntarily. This
requirement must be considered carefully.
• Children and young people may be
subject to undue influence by their
parent(s), other carers or a sexual
partner (current or potential), and it is
important to establish that the decision
is that of the individual him or herself.
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Gillick competence (MHA Code 36.38)
• ‘...children who have sufficient understanding
and intelligence to enable them to understand
fully what is involved in a proposed intervention
will also have the competence to consent to that
intervention’
• The understanding for different interventions will
vary considerably
• Competence to consent should be assessed
carefully in relation to each decision that needs
to be made
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Mental Capacity Act 2005:Overview
• Framework for decision making in relation to individuals
aged 16 or over who lack capacity to consent
• Decision specific – relates to particular decisions at
particular times
• If a person lacks capacity (defined in the MCA 2005) to
consent to care and treatment it can be provided if this
is in the person’s best interests
• Limits on this; e.g. restriction of liberty (deprivation of
liberty safeguards), advance decisions
• Mental Capacity Act Code of Practice: guidance on key
issues e.g. Helping people to make decisions,
assessment of capacity, best interests
Parental Consent & u16s: DH Consent Guide
“Where a child under the age of 16 lacks capacity to consent
(ie is not Gillick competent), consent can be given on their
behalf by any one person with parental responsibility (if the
matter is within the ‘zone of parental control’) or by the court.
As is the case where patients are giving consent for
themselves, those giving consent on behalf of child patients
must have the capacity to consent to the intervention in
question, be acting voluntarily and be appropriately informed.
The power to consent must be exercised according to the
‘welfare principle’: that the child’s ‘welfare’ or ‘best interests’
must be paramount. Even where a child lacks capacity to
consent on their own behalf, it is good practice to involve the
child as much as possible in the decision-making process.”
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What is the “zone of parental control”?
• Term describes types of decisions that people with PR
can make about child/young person’s care and treatment
• Various factors e.g. nature of the decision, likely
motivation for making the decision.
• Seeks to mirror the evolving capacities of the
child/dwindling right of control? E.g. factors considered:
• Nature and invasiveness of what is to be done
• Whether patient resisting
• Social standards – is it acceptable for parents to make this
decision – beyond decisions parents routinely make?
• Age maturity and understanding of the child/young person
• Extent to which parent’s interest may conflict with those of
child/young person
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Just Equality: Linking Law to Life
Determining the Zone of Paretnal
Control
What is the nature of the decision? Is this a
decision that a parent would be expected to
make, having regard to what is considered to be
normal practice and any relevant human rights
decisions?
What is the likely motivation for making the
decision? Are there any indicators that the
parent might not act in the best interests of the
child or young person?
Is there any indication that the parent lacks
capacity to make the decision?
Is the person with PR considering the
best interests of the child? (DH Guide)
Where there is doubt about whether a
parent is acting in the interest of the
child or young person, then the
healthcare practitioner would be
unwise to rely on the parent’s consent
•For example if a child alleges abuse
and the parent supports psychiatric
treatment for the child.
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Under 18s and Refusal of Treatment
• Child/ young person able to decide: “refusal could
be overruled if it would in all probability lead to the
death of the child/young person or to severe
permanent injury.”
• [post HRA 1998] Unwise to rely on parental consent
to override refusal – may be necessary to apply to
the court “to determine whether it is lawful to treat
the child.”
• “Where the treatment involved is for mental
disorder, consideration should be given to using
mental health legislation”
• (Department of Health, 2009, see also MHA Code 36.51)
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References & Guides
Mental Health Act 1983 (as amended)
Code of Practice Mental Health Act 1983, 2008
Reference Guide to the Mental Health Act 1983, 2008
Mental Capacity Act 2005
Code of Practice Mental Capacity Act 2005, 2007
Department of Health, Reference guide to consent for examination
or treatment, second edition, 2009
2008 The Legal Aspects of the Care and Treatment of Children and
Young People with Mental Disorder: A Guide for Professionals,
NIMHE, 2009: ‘...purpose is to explain the complex legal framework
relevant to the provision of care and treatment to children and
young people with severe mental disorders’
Flow charts: www.nmhdu.org.uk
Camilla Parker
Partner, Just Equality
camilla@justequality.co.uk
www.justequality.co.uk
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