Who can consent to the medical treatment of a child?

The law in England and Wales relating to who can consent to the medical treatment of a child is not always straight forward.

The starting point is often the capacity and competence of the child themselves to either give or withhold consent to treatment and, where that is lacking, the decision will be with those who have or may share parental responsibility for the child, or alternatively the court.

Children aged 16 and over

A child who is 16 years or over is presumed to have sufficient capacity to decide their own medical treatment unless there is significant evidence to suggest otherwise. The Mental Capacity Act 2005 will apply to children within this age bracket when determining capacity.

If the child lacks capacity within the meaning of the Mental Capacity Act 2005 they may be treated without their consent but only with:

1. the consent of someone with parental responsibility, (as long as the treatment falls within the scope of parental responsibility and does not involve a deprivation of liberty unless it is to give effect to a relevant decision of the court), or
2. the authority of the court.

Children under 16 years of age

Children under the age of 16 can consent to their own treatment if they are considered to have sufficient intelligence, competence and understanding to fully appreciate what is involved in their treatment. This is referred to as Gillick competence and requires careful assessment and analysis.

Children under the age of 16 who are not Gillick competent can neither give or withhold consent to treatment, and therefore someone with parental responsibility would need to make decisions for them, or alternatively the court.

Parental responsibility

Parental responsibility is the legal recognition of the rights, duties, powers, responsibilities and authority that a parent has in relation to the child.

The person with parental responsibility is able to make decisions about the child’s upbringing and is entitled to information about the child. This will include, in particular, the ability to consent to their medical treatment.

Where more than one person shares parental responsibility

More than one person can have parental responsibility for a child at any time, and each person with parental responsibility may act alone and without the other in meeting their responsibility.

There is little statutory guidance about when persons who share parental responsibility are able to act independently or when they must act in consultation. The court will nevertheless expect that "where two parents share parental responsibility, it will be the duty of one parent to ensure that the rights of the other parent are respected, and vice versa, for the benefit of the child".

Whilst each case will turn on its own facts, the following may offer some guidance in terms of when a person with parental responsibility must notify and when they must also consult with all others with parental responsibility:

1. Continuing a child’s prescribed medication is likely to be considered a decision that can be taken without notifying or consulting others who may share parental responsibility
2. Medical treatment in an emergency will require notification but need not be made in consultation with other holders of parental responsibility insofar as treatment is limited to what is reasonably required to deal with the particular emergency
3. Planned medical treatment beyond routine check-ups should be made in consultation with all holders of parental responsibility.

Generally, it is advisable that where there is conflict between those able to make decisions regarding a child’s medical treatment, the matter is referred to the court for determination either by way of a Specific Issue or Prohibited Steps Order.

Specific Issue and Prohibited Steps Orders

Where a dispute arises about a specific issue relating to a child's welfare, such as medical treatment, if the issue cannot be agreed on, the court can decide the matter and make a Specific Issue Order. 

Alternatively a Prohibited Steps Order can be used to curtail the rights and responsibility of a person to make particular decisions or take certain steps during the exercise of their parental responsibility for a child, without the permission of the court.