CHILDREN & CONSENT

IMPORTANT UPDATE - 03/09/21

Despite clear evidence from the recent University College London study that children’s risk of death from COVID-19 is just 0.0002% and the JCVI announcing that they did not recommend rolling out the vaccine to the under-16s, the UK Government has announced that it plans to press ahead with a mass vaccination programme in schools.

If you are at all concerned about your child being vaccinated, particularly without your explicit consent, please visit our Preventing COVID-19 Vaccination of Children campaign page for more information and suggested actions you can take. 

In our last two articles we looked at Consent to Treatment as it applies to adults and young people.

In this article we explore how consent to treatment is handled when it comes to children under 16.

At the time of writing (May 2021), the COVID-19 vaccines do not have any authorisation or approval for use in children under 16 in the UK. But with other countries either running trials or rolling out the vaccines to children, it may only be a matter of time before the UK follows suit. So let’s take a look at what the NHS website tells us about consent to treatment for children:

Children under the age of 16 can consent to their own treatment if they’re believed to have enough intelligence, competence and understanding to fully appreciate what’s involved in their treatment. This is known as being Gillick competent.

Otherwise, someone with parental responsibility can consent for them.

This could be:

  • the child’s mother or father
  • the child’s legally appointed guardian
  • a person with a residence order concerning the child
  • a local authority designated to care for the child
  • a local authority or person with an emergency protection order for the child

Parental Responsibility

A person with parental responsibility must have the capacity to give consent.

If a parent refuses to give consent to a particular treatment, this decision can be overruled by the courts if treatment is thought to be in the best interests of the child.

By law, healthcare professionals only need 1 person with parental responsibility to give consent for them to provide treatment.

In cases where 1 parent disagrees with the treatment, doctors are often unwilling to go against their wishes and will try to gain agreement.

If agreement about a particular treatment or what’s in the child’s best interests cannot be reached, the courts can make a decision.

In an emergency, where treatment is vital and waiting for parental consent would place the child at risk, treatment can proceed without consent.

As you can see, it isn’t quite so simple as a parent needing to give consent for a child under 16 to have any kind of medical treatment including a COVID-19 vaccine. So let’s see if we can get a better understanding of what’s involved.

What is 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 went to the High Court in 1984 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 and Lord Bridge) ruled in favour of the original judgment delivered by Mr Justice Woolf:

“…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” (Gillick v West Norfolk, 1984).

Lord Scarman also said during his judgment that:

“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.”

It is important to note that while the case referred specifically to contraceptive advice and treatment, the framework established by the ruling has increasingly been applied to other forms of medical treatment over the years.