Issues of CONSENT
in providing medical treatment to
young people up to 18 years old
Dr Ui Peng Khoo
Consultant Child & Adolescent Psychiatrist
May 2011
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Consent – definitions
Gillick competence & Fraser guidelines
Mental Capacity Act 2005
Parental Responsibility
Mental Health Act 2007
• Case vignette
Basic Principles
Children and young people can expect:
• To be kept as fully informed as they wish, and as possible,
about their care and treatment
• Health professionals to act as their advocates
• To have their views and wishes sought and taken into account
• To be the individual who consents to treatment when they are
competent to do so
• To be encouraged to take decisions in collaboration with other
family members, especially parents, if this is feasible
• To be able to expect that information provided will remain
confidential unless there are exceptional reasons that require
confidentiality to be breached
Definition of CONSENT
• [from Old French consentir, from Latin
consentīre to feel together, agree, from
sentīre to feel]
vb
1. to give assent or permission (to do something); agree; accede
2. (intr) Obsolete to be in accord; agree in opinion, feelings, etc.
n
1. acquiescence to or acceptance of something done or planned by another;
permission
2. accordance or harmony in opinion; agreement
Collins Dictionary
Informed Consent
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(1) competence to understand and to decide,
(2) voluntary decision making,
(3) disclosure of material information,
(4) recommendation of a plan,
(5) comprehension of terms (3) and (4),
(6) decision in favor of a plan, and
(7) authorization of the plan
• A person gives informed consent only if all of these
criteria are met. If all of the criteria are met except that
the person rejects the plan, that person makes an
informed refusal.
Consent
(MHA 1983 Code of Practice)
…the voluntary and continuing permission of
a patient to receive a particular treatment
based on adequate knowledge of the
purpose, nature, likely effects and risks of
that treatment, including the likelihood of
its success and any alternatives to it…
The assessment of consent…
• Information
• Capacity or competence
• Freedom to choose
Capacity vs. Competence
• These terms are sometimes used
interchangeably, yet supposedly there’s a
difference
• What is it?
Capacity
• “The ability to understand information
relevant to a treatment decision and to
appreciate the reasonably foreseeable
consequences of a decision or lack of a
decision.” (Bioethics for Clinicians)
– Really a definition of an adequate degree of
capacity for medical decision making
Capacity vs. Competence
• Capacity refers to an ability
– “having capacity”
– Capacity comes in degrees
• Competence refers to a property or
characteristic a person possesses
– “being competent”
– Competence (relative to a particular decision) is all or
nothing.
Competence & Competence
Defined
• Capacity = the degree to which one is able to
understand the information relevant to a
treatment decision and appreciate the
reasonably foreseeable consequences of a
decision or lack of a decision.
• Competence = being able to understand
information relevant to a treatment decision and
to appreciate the reasonably foreseeable
consequences of a decision or lack of a
decision.
Can competence ever be
presumed?
• Yes. All people aged 16 and over are
presumed in law to be competent to give
their consent to medical treatment and to
the release of information in England,
Scotland, Wales and Northern Ireland
(although they may lack capacity)
Can a young person be competent
under the age of 16?
• Yes, this should be assessed case by case
• And should not be judged solely on the
basis of age
Gillick competency and Fraser
guidelines
In 1982, Mrs Victoria Gillick took her local health authority
and the Dept of Health and Social Security to court in an
attempt to stop doctors from giving contraceptive advice
or treatment to under 16 year olds without parental
consent
The case went to the High Court where Mr Justice Woolf
dismissed Mrs Gillick’s claims. The Court of Appeal
reversed this decision, but in 1985 it went to the House
of Lords and the Law Lords (Lord Scarman, Lord Fraser,
Lord Bridge) ruled in favour of the original judgement
delivered by Mr Justice Woolf
Gillick competency and Fraser
guidelines
“…whether or not a child is capable of giving
the necessary consent will depend on the
child’s maturity and understanding and
the nature of the consent required. The
child must be capable of making a
reasonable assessment of the
advantages and disadvantages of the
treatment proposed, so the consent, if
given, can be properly and fairly described
as true consent.”
How are Fraser Guidelines
applied?
“…a doctor could proceed to give advice and treatment provided
he is satisfied in the following criteria:
1. That the girl will understand his advice
2. That he cannot persuade her to inform her parents or to
allow him to inform the parents that she is seeking
contraceptive advice
3. That she is very likely to continue having sexual intercourse
with or without contraceptive treatment
4. That unless she receives contraceptive advice or treatment
her physical or mental health or both are likely to suffer
5. That her best interests require him to give her contraceptive
advice, treatment or both without her parental consent
Gillick competency
Lord Scarman’s comments:
“Parental right yields to the child’s right to
make his own decisions when he reaches
a sufficient understanding and intelligence
to be capable of making up his own mind
on the matter requiring decision.”
Assessing competence
• The ability to understand that there is a choice and
that choices have consequences
• The ability to weigh the information and arrive at a
decision
• A willingness to make a choice (including the choice
that someone else should/not make the decision)
• An understanding of the nature and purpose of the
proposed intervention
• An understanding of the proposed intervention’s risks
and side effects
• And understanding of the alternatives to the proposed
intervention, and the risks attached to them
• Freedom from undue pressure
Who should assess competence?
• GPs who have known the young person
for a long time
• Health professionals skilled and
experienced in interviewing young people
and eliciting their views without distortion
• Health professionals who have a close
rapport with the patient
Gillick competence (under 16s)
• The doctor (or health professional)
concludes if a young person has
competence
• Decision-specific – a young person may
be competent to make some decisions,
but not others
Mental Capacity Act 2005
• Applies to people aged 16 or over
• Legal framework for making a decision on
behalf of those who lack capacity to make
their own decisions
Mental Capacity Act 2005
For the purposes of this Act, a person (aged
16+) lacks capacity in relation to a matter if
at the material time he is unable to make a
decision for himself in relation to the
matter because of an impairment of, or a
disturbance in the functioning of, the
mind or brain”
Mental Capacty Act: Section 2(1)
Two stage test of capacity
• Is there an impairment of, or disturbance
in the functioning of the persons mind or
brain?
• Is that impairment or disturbance sufficient
to make the person unable to make the
decision in question?
Test of capacity
• Understand the information relevant to the
decision
• Retain that information
• Use or weigh that information as part of
the process of making the decision
• Communicate his decision
Factors to consider when
assessing capacity
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Cognitive development
Emotional development
Mental illness
Medication/drugs/alcohol
Relations and peer influences
Cultural and political pressures
Capacity
• Capacity is decision-specific
• An unwise decision does not imply
incapacity
• If the person does not have capacity:
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Does the decision need to be made without delay?
Will the person regain capacity?
Is it possible to wait until the person does have capacity?
Consult with others
Use parental consent/act in best interest
Consent and Refusal
• Children Act 1989
Parental authority, the Local Authority
and the Inherent Jurisdiction of the High
Court can over-ride even a competent
young person’s refusal of treatment
Parental Responsibility
• Children Act 1989 Section 3(1)
“all the rights, duties, powers,
responsibilities and authority which by law
a parent has in relation to a child and his
property”
(Children Act defines a child as aged under 18)
Who has Parental Responsibility?
• If a child’s father and mother are married
at the time of the child’s birth
• If a child’s father and mother are not
married
Mother always has parental responsibility
Father may acquire it
Section 2 Children Act 1989
How can Parental Responsibility be
acquired?
Father
If married to mother at time of birth or
subsequently
If named on birth certificate since Dec
2003
If legally acquired by
• Applying to court
• Making an agreement with mother
• Being appointed guardian
How can Parental Responsibility be
acquired?
• Step-parents (Adoption and Children Act
2002)
• Others
Special guardianship orders (Adoption and
Children Act 2002)
Residence order
Adoption
Parental Responsibility
• Where more than one person has parental
responsibility for a child, each of them may
act alone and without the other in meeting
that responsibility
Section 3(7) Children Act 1989
Local Authorities can limit the extent
to which parents may exercise their
parental responsibility
• Care Order
• Secure Order
• Emergency Protection Order
How far can the authority of
parental responsibility be used to
treat the objecting child/young
person?
• Is it a decision that a parent would
normally be expected to make?
• Are there any indications that the parent
might not act in the best interests of the
child or young person?
Overriding refusal to treatment
- best interests?
• Likelihood of serious permanent harm as a
result of refusal
• Effectiveness of treatment
• Practicality of enforcing treatment
• Ongoing treatment or “one-off”
• Likelihood of compliance with aftercare
• Doctor-patient relationship compromised
Mental Health Act
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Definition of mental disorder
Section 2, 3, 5(2), 136
ASW – AMHP
RMO – AC, RC
Cannot treat a physical disorder
under MHA unless physical illness is
a direct consequence of mental
illness e.g. anorexia nervosa
Mental Health Act
• Mental disorder definition simplified to
“any disorder or disability of the mind”
• 2 exemptions:
Learning disability (only detainable if
associated with abnormally aggressive or
seriously irresponsible conduct)
Alcohol or drug dependence
MHA - Section 2
• Compulsory admission for assessment (followed
by treatment) for up to 28 days
• AMHP/relative and 2 medical recommendations
(one approved doctor)
• Detention in the interest of patient’s safety or
safety of others
• Patient suffering from mental disorder nature or
degree warrants detention for assessment
• Right to appeal to Mental Health Review
Tribunal
MHA - Section 3
• Compulsory admission for treatment for up
to 6 months, can be extended
• Patient suffers from a mental disorder
• Same 2 exemptions
• Necessary for the health or safety of
patient or protection of others and
treatment cannot be provided unless they
are detained under this section
• Right to appeal
MHA - Section 4
• Emergency detainment for assessment for
up to 72 hours
• Nearest relative/AMHP plus one doctor
who has seen patient in past 24 hours
• Urgent nature such that Sec 2 would be
unacceptable delay
• Convert later to Section 2 if necessary
• Renewal not possible
MHA – Section 5(2)
Doctor’s holding power
• Compulsory detention of patient already
receiving inpatient treatment for up to 72
hours by the doctor in charge of the case
• Must have mental disorder and be a
potential danger to self or others
• To allow time for Sec 2 or 3 to be made
MHA – Section 5(4)
Nurses holding power
• Registered Mental Nurse can detain
patient for up to 6 hours while the doctor is
found
• Patient must be potential danger to self or
others
• Doctor not immediately available to
implement Sec 5(2)
MHA – Section 136
• Police powers to remove a mentally ill
person from a public place to a place of
safety
• Hospital (designated Section 136 sites) or
a police station
• To allow person to be assessed by doctor
and AMHP
• Can be detained for max 72 hours
MHA – Section 136
Person removed entitled to:
• Person of their choice informed of their
whereabouts
• Access to legal advice
• Medical treatment form appropriate
professional
• Support of appropriate adult (independent
of police)
Case vignette
Mary is a 16 year old girl who has been
sleeping rough having been evicted from a
B&B the night before. She is found in the
park in a drowsy condition with 2 empty
packets of paracetamol nearby. She had
told her youth worker and her mother that
she planned to kill herself yesterday.
Case vignette
In A&E, her lactate level is elevated. She
appears drowsy but denies taking any
alcohol. She denies any intention to kill
herself and refuses to consent or
cooperate with treatment. She has a
history of cannabis and heroin use.
Mary pulls out her IV cannula and walks out
of A&E swearing at staff.
Case vignette
A multidisciplinary meeting is called –
mother cannot have Mary back home as
their relationship has broken down. Mary
absconds from hospital over the weekend.
She has a history of taking overdoses,
self-cutting and absconding.
She discharges herself against medical
advice. On her way out, she is heard
telling her friends she plans to kill herself.
Case vignette
Mary is brought back by police under
Section 136.
References
• GMC: 0–18 years Guidance for all doctors
• Arch Dis Child July 2009 Vol 94 No 7
p487-491 Overriding competent medical
treatment refusal by adolescents: when
“no” means “no”
• BMA Children and Young People Toolkit
2011
• Children with Mental Disorder and the Law
(Anthony Harbour)