Paediatric month: capacity, consent and the family

In the second of our articles focussing on paediatrics, we look at the guidelines around safeguarding this potentially vulnerable group of patients. 

Every member of staff has a responsibility for keeping children safe and promoting their welfare. This can mean protecting them from maltreatment, preventing the impairment of their health or development and taking action to ensure all children have the best possible outcomes. 

Effective safeguarding systems are centred on the child; children want to be respected, for their views to be heard, to have stable relationships with professionals built on trust and to have consistent support provided for their individual needs. Anyone who comes into contact with children should see and speak to the child; listen to what they say; take their views seriously; and work with them collaboratively when deciding how to support their needs. For more information, please read the Government’s ‘Working together to safeguard children’ guidance. 

Please remember that the child’s needs are paramount, and the needs and wishes of each child, be they a baby or infant, or an older child, should be put first, so that every child receives the support they need before a problem escalates. 

A child’s capacity and giving consent 

The Mental Capacity Act’s starting point is to confirm in legislation that it should be assumed that an adult (aged 16 or over) has full legal capacity to make decisions for themselves (The Right of Autonomy) unless it can be shown they lack capacity to make a decision for themselves at the time the decision needs to be made, This is known as the ‘presumption of capacity’. The Act does not generally apply to children under the age of 16 and defines a child as under the age of 16. 

It is a legal and ethical principle that valid consent must be obtained before starting treatment or physical investigation, or providing personal care. This principle reflects the right of patients to determine what happens to their own bodies, and is a fundamental part of good practice. 

Children under the age of 16 are presumed to lack capacity, but can consent to their own treatment if it is thought that they have enough intelligence, competence and understanding to fully appreciate what is involved in their treatment. Otherwise, someone with 'parental responsibility' can consent for them; however this person must have the capacity to give that consent. 

A person with parental responsibility for a child could be the child’s mother or father, a legally appointed guardian, a person with a residence order, a local authority designated to care for the child or a person or local authority with an emergency protection order. 

If the young person or child aged under 16 is deemed capable of giving valid consent it is not legally necessary to obtain consent from the person with parental responsibility. It is, however, good practice to involve the young person’s family in the decision making process - unless the patient specifically wishes to exclude them, and the patient consents to their information being shared. 

Gillick competence 

In 1982 Victoria Gillick took her local health authority (West Norfolk and Wisbech Area Health Authority) and the Department 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 ended up in the House of Lords, who held that children under 16 who have sufficient understanding and intelligence to enable them to understand what is involved in a proposed intervention will also have the capacity to consent to that intervention. This is referred to as the Gillick competence. 

A life-threatening emergency may arise when consultation with either a person with parental responsibility or the court is impossible, or the person with parental responsibility refuses consent despite such emergency treatment appearing to be in the best interests of the child. 

If a person requires emergency treatment to save their life, and they are unable to give consent as a result of being incapacitated (for example, they are unconscious), treatment will be carried out. 

In these cases, the reasons why treatment was necessary will be fully explained once they have recovered. 

Information sharing 

Fears about sharing information cannot be allowed to stand in the way of the need to safeguard and promote the welfare of children at risk of abuse or neglect. No practitioner should assume that someone else will pass on information which may be critical to keeping a child safe. 

Where there are concerns about the safety of a child, the sharing of information in a timely and effective manner between organisations can reduce the risk of harm. 

If, at any time, you believe that a child may be a child in need, or that a child is being harmed or is likely to be, you should refer immediately to the local authority children’s social care. This referral can be made by any practitioner. If you see further signs of potential abuse and neglect, report and refer again. Remember to record your referral with the Trust’s single point of contact (SPOC) on 0845 602 6856.

Published 15th July 2015