Resolving Disputes Over A Child's Medical Treatment

Discussions surrounding a child’s medical treatment are contained within the ambit of parental responsibility.

Parental responsibility is defined in section 2 of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. This is a broad definition, which the Law Commission has expanded upon, suggesting that it encompasses the decisions involved in the everyday reality of being a parent and the responsibilities of those who were placed in that position.

Examples of the exercise of parental responsibility include decisions relating to a child’s:

• Health
• Welfare
• Schooling
• Religion
• Living arrangements

Therefore, any decisions relating to proposed medical treatment for a child are an exercise of parental responsibility and must be made by those who hold it for that child.

WHAT HAPPENS WHEN THE PARENTS AGREE WITH EACH OTHER, BUT DISAGREE WITH A MEDICAL PROFESSIONAL?

Generally, a child cannot receive medical treatment without the consent of those with parental responsibility for that child. Indeed, provision of any medical treatment to a child may be a trespass to the person and constitute an assault in law if consent to such treatment is not obtained. Furthermore, medical treatment provided in defiance of parental objection, without court authority, is an interference with the child’s right to respect for private life under Article 8 of the European Convention on Human Rights.

If the parents refuse treatment for their child, then the court may give consent if it determines that it is in the best interests of the child to give consent. It is not a test of whether the parents were unreasonable in withholding consent. Therefore, in scenarios where loving parents who are well-informed about the proposed treatment, which is invasive, refuse to give consent, it is more likely that the court may not deem that it is in the child’s best interests to sanction that treatment.

EXCEPTIONAL CASES

The test is slightly different in respect of HIV testing. The court may give consent to a child’s medical examination and testing to ascertain whether the child is HIV positive if it is in the best interests of the child’s welfare, rather than considering parental rights in respect of that child.

Furthermore, if the child is a ward of the High Court, the High Court has power to order the termination of a pregnancy of a child, if it is in her interests to do so, or to order a child’s sterilisation. The court may refuse to allow sterilisation even though parental consent has been obtained. Whether or not the child is a ward of court, medical practitioners should approach the court for leave when seeking to carry out the sterilisation of a girl under the age of 18, even if the parents have provided consent to the procedure taking place.

However, once the child has attained the age of 16, the Family Law Reform Act 1969 states that they are capable of giving effective consent to their own treatment: surgical, medical or dental, including any procedure undertaken for the purposes of diagnosis.

If deemed to be in the best interests of the welfare of the child and certain criteria are met, children under the age of 16 can give consent to medical treatment, without the consent of those with parental responsibility needed.

GILLICK COMPETENCY

The well-known and often quoted case of Gillick v West Norfolk and Wisbech Area Health Authority and Another established that a child under the age of 16 will have the right to consent or refuse to consent to treatment if they have sufficient understanding and intelligence to be capable of making up their own mind on the matter requiring decision.

The House of Lords concluded that the exercise of parental responsibility could not be determined with reference to a child attaining a certain age, but instead upon a holistic analysis of what was best for the welfare of that particular child. In this particular case, the House of Lords ruled that a child under 16 may receive contraceptive advice or treatment from a doctor.

However, the exercise of a doctor’s discretion is not limited to this scenario.

The guidance to the Children Act 1989 states that “children who are judged able to give consent cannot be medically examined or treated without their consent. The responsible authority should draw the child’s attention to his [or her] rights to give or refuse consent to examination or treatment if he [or she] is 16 or over or if he [or she] is under 16 and the doctor considers him [or her] of sufficient understanding to understand the consequences of consent or refusal”.

Therefore, if a doctor feels that the child meets the Gillick criteria above and the child consents to the advice or treatment, then that child may receive that advice or treatment, even if the parents disagree with the doctor. This is more likely as the child grows up, as young children are unlikely to be deemed ‘Gillick competent’.

WHAT HAPPENS WHEN PARENTS DISAGREE WITH EACH OTHER?

If the parents do not agree with each other and cannot reach an agreement through methods such as mediation, then the issue will need to be resolved by way of a court order. The parent wishing for the treatment to take place will need to apply to the court for a Specific Issue Order.

The court’s paramount consideration will be the child’s welfare. However, it will also consider that:

• Delay in determining the question is likely to prejudice the child’s welfare
• There is a presumption in favour of parental involvement
• There is a presumption against making an order unless to do so would be better for the child than making no order at all
• The welfare checklist as set out at section 1(3) of the Children Act 1989.

These factors are:

• The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)
• The child’s physical, emotional and educational needs
• The likely effect on the child of any change in his circumstances
• The child’s age, sex, background and any characteristics of his which the court considers relevant
• Any harm which the child has suffered or is at risk of suffering
• How capable each of the child’s parents (and any other person in relation to whom the court considers the question to be relevant) is of meeting his needs
• The range of powers available to the court under CA 1989 in the proceedings in question

This is a complicated area of law and ensuring you have expert legal advice is crucial to ensuring the best outcome for you and your child. 

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