Consent and children under 16
Consenting to treatment
The ability for children under 16 to give valid consent will depend on their maturity and ability to understand what the treatment involves. In England and Wales, this is referred to as being Gillick competent.
To be Gillick competent, a child must:
- understand the nature of the proposed treatment, its consequences and the alternatives, including no treatment
- retain that information
- use or weigh up that information in making a decision
- communicate that decision.
Even in the case of Gillick competent children, you may wish to encourage children to discuss decisions concerning their health with their parents or carers.
Consenting to treatment: Scotland
The Children (Scotland) Act 1995 indicates that from the age of 12, children are mature enough to have a view on their treatment, even if they are not competent enough to give consent. Case law is such that it may be that a parent cannot overrule a competent young person's decision.
- If a child is not Gillick competent, authority to treat may be given by someone with parental responsibility under the Children Act 1989.
- If one person with parental responsibility authorises treatment, it is not usually necessary to get authority from another person with such responsibility.
- In non-urgent cases where there is a dispute, it would be wise to seek a resolution that is in the child's best interests.
If the parents are separated or divorced, and the child is not yet competent to authorise disclosure, information may be disclosed to either parent if it is in the child's best interests, unless the court has removed parental responsibility from the parent.
Who has parental responsibility?
For births registered in England and Wales:
- A child's natural parents both have parental responsibility if they were married at the time of the birth or marry later.
- A father who is named on the birth certificate will usually have parental responsibility if the child was born on or after 1 December 2003.
- If a child was born prior to this date, and the parents were unmarried, then only the mother has automatic parental responsibility. However, the father may acquire parental responsibility if he becomes registered as the child's father, or makes an agreement with the mother (including by marriage) or by a court order.
- Step-parents can acquire parental responsibility in certain circumstances.
For births registered in Scotland:
- A father has parental responsibility if he is married to the mother when the child is conceived, or marries her at any point afterwards.
- An unmarried father has parental responsibility if he is named on the child's birth certificate, if the child was born on or after 4 May 2006.
For births registered in Northern Ireland:
- A father has parental responsibility if he is married to the mother at the time of the child's birth.
- If a father marries the mother after the child's birth, he has parental responsibility if he lives in Northern Ireland at the time of the marriage.
- An unmarried father has parental responsibility if he is named, or becomes named, on the child's birth certificate - if the child was born on or after 15 April 2002.
For same-sex parents:
- Same-sex parents who were civil partners at the time of the treatment will both have parental responsibility.
- For non-civil partners, the second partner can either apply for parental responsibility if a parental agreement was made, or become a civil partner of the other parent and make a parental responsibility agreement, or jointly register the birth.
- In deciding whether to treat, your overriding consideration must always be what is in the best interests of the child.
- You should not delay emergency treatment required to save life or prevent serious harm if you are unable to get authority from an adult with parental responsibility.
Consent and children aged 16-18
Consenting to treatment
The age at which children are deemed capable of giving consent for dental treatment in England and Wales, Scotland and Northern Ireland is 16.
Although in England and Wales children remain minors until they are 18, once a child reaches the age of 16 they are deemed to be capable of consenting to treatment as an adult.
In all cases, treatment should only be given if it is in a child's best interests.
- Valid consent of a child over 16 cannot be overridden by a refusal from those with parental responsibility.
- However, in some cases a refusal of consent by a child over 16 can be overridden by a child's parents or guardians, or by the court.
- Although there is no legal requirement to do so, if a 16 or 17-year old needs to undergo major or hazardous elective surgery, you may wish to discuss the treatment with the parents, subject to the patient's permission.
Our advice for treating children aged 16-18:
- Obtain informed consent from the patient
- ask for permission to discuss their treatment with a parent or someone with parental responsibility, if you believe such a discussion is appropriate
- record the patient's permission and your discussions in your notes.
Consent and children in care
In England and Wales, The Children Act 1989 makes a clear distinction between children who are the subject of a care order and those who are being looked after on a voluntary basis.
The Children (Northern Ireland) Order 1995 shares the same principles as the Children Act 1989 and has its own guidance.
The Scottish Children Act 1995 applies in Scotland.
When examining or treating a child in care, it's important to know who has parental responsibility.
Duty of the local authority
When a child is the subject of a care order, the local authority has parental responsibility and can authorise treatment on the child's behalf. However, the order does not deprive the child's parents of responsibility or ability to authorise treatment.
Where the local authority and parents both have parental responsibility, the local authority can decide the extent to which a parent or guardian may exercise their responsibility.
The local authority's responsibility may override that of the parents, where this is necessary for the child's welfare.
When major procedures are being considered for a child who is the subject of a care order, the local authority is likely to involve the parents in the decision.
In any event, you should seek the child's consent when they are capable of giving it.
The local authority does not have parental responsibility over children who are looked after on a voluntary basis.
You should seek consent from the child under 16, if Gillick competent, or authority from someone with parental responsibility for the child, before starting non-emergency work.
This guidance was correct at publication 11/12/2018. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.