Consent, health treatment and the rights of a child

Written by Ruth McGuire - 30th December 2021 

 

The last two years have been ‘unprecedented’ in many ways. First there was the disease that gripped the entire world, coronavirus, then came the lockdowns and now we are living through a world where new types of vaccines and ‘boosters’ have entered our everyday language. In and amongst all the clinical issues and debates about vaccines, ethical questions have arisen about the vaccination of children. One of the key issues surrounding the vaccination of children is that of consent. This has raised wider discussions about what children can and cannot consent to when it comes to their own health. This article explores the key issues.


Child or adult?


In law children do not become adults until they reach the age of 18. However, the law is complex and confusing. This is because children cannot vote until they reach the age of 18 but can drive cars and obtain a driving licence at the age of 17. In addition, children can marry at 16 but only with the consent of their parents. This leaves the curious situation where a child could be married at the age of 17, drive a car but not have the legal right to vote or to legally buy alcohol in licensed premises. When it comes to making decisions about their health, such as the decision to have or not have Covid-19 vaccines, the law is equally complex. 


Gillick competency


The principle of what is known as the Gillick competency is an important guideline in determining whether or not a child under the age of 16 can make their own decisions about health. The guideline stems from legal action taken in 1982 by a woman called Victoria Gillick. She wanted to prevent doctors from giving contraceptive advice or treatment to under 16 year olds. After various court judgements and appeals, ‘‘It was determined that children under 16 can consent if they have sufficient understanding and intelligence to fully understand what is involved in a proposed treatment, including its purpose, nature, likely effects and risks, chances of success and the availability of other options. If a child passes the Gillick test, he or she is considered ‘Gillick competent’ to consent to that medical treatment or intervention.’ https://www.cqc.org.uk/guidance-providers/gps/gp-mythbuster-8-gillick-competency-fraser-guidelines


Barrister and radio presenter Daniel Barnett explains another scenario in relation to vaccinations and the views of parents. He says: ‘The Family Law Reform Act 1969 states that a 16 or 17 year old can legally consent to vaccination. That means you can’t stop them being vaccinated if they decide to have the jab. If your 16 or 17 year old refuses the vaccine, but you think they should have it, the position is a bit more complex. You can legally consent to them having the injection, but the doctor or nurse will almost certainly refuse despite your consent. That’s because the Green Book (which is Public Health England’s definitive guidance on immunisation for clinicians working in the NHS) states that refusal by a child over 16 should be accepted.’ https://www.lbc.co.uk/radio/special-shows/legal-hour/what-can-you-do-if-child-disagrees-with-you-on-covid-jab/


In some cases, such as a Jehovah’s Witness parent or child who refuses blood transfusions, judges will often overrule both a parent and child’s choice to refuse life saving blood transfusions. This is done because a different principle is applied which is that of ‘best interests.’ In these situations, judges consider what is in the best interests of a child. For example, in 2020, a judge considered the case of a Jehovah’s Witness child who refused a life saving blood transfusion but ruled against the child. The judge ‘authorised the giving of the blood transfusion as desired by the treating clinicians on the basis that the court had to take its own decision as to what was in the best interests of a child until the age of 18.’ Ref. https://www.mentalhealthlaw.co.uk/Re_X_(A_Child)_(No_2):_An_NHS_Trust_v_X_(2021)_EWHC_65_(Fam)


A principle that has also been considered in cases of Jehovah’s Witness children is the extent to which children are in a position to provide informed consent and to do so without undue influence or pressure. Also considered by judges has been the fact that children grow up to become adults with views and even goals that are very different from those they had as children. Making a life saving/life rejecting decision as a child based on a religion that the child may reject in later life, has also been considered by judges around the world in the case of Jehovah’s Witness children and children from other religions or groups that object to certain types of or any medical treatment or intervention. 


The NSPCC offers the following suggests as to what professionals need to consider when assessing a child's capacity to consent. This includes consideration of the following:


  • the child's age, maturity and mental capacity
  • their understanding of the issue and what it involves - including advantages, disadvantages and potential long-term impact
  • their understanding of the risks, implications and consequences that may arise from their decision
  • how well they understand any advice or information they have been given
  • their understanding of any alternative options, if available
  • their ability to explain a rationale around their reasoning and decision making.


Conclusion


In the context of Covid-19 vaccines, trying to determine whether a child has the level of intelligence and understanding to understand the benefits and risks of vaccine treatment involves is a challenge. This is because of the range of influences that children are exposed to not just from their peers but from social media and other media outlets. However, the underlying principle that professionals and parents need to remember in relation to a child’s consent to or rejection of medical treatment, is the extent to which they have the capacity to make informed, voluntary decisions, free from undue influence or pressure from anyone.


Further reading and research


  • Podcast from the Royal College of Paediatricians and Child Health

https://www.rcpch.ac.uk/news-events/news/covid-19-vaccine-podcast


  • Official Government Guidance 

https://www.gov.uk/government/publications/covid-19-vaccination-resources-for-children-and-young-people



  • British Medical Journal article about consent issues

https://adc.bmj.com/content/early/2021/09/26/archdischild-2021-322981


  • Comment from a barrister on legal issues around consent in relation to vaccinations

https://www.lbc.co.uk/radio/special-shows/legal-hour/what-can-you-do-if-child-disagrees-with-you-on-covid-jab/


  • NSPCC guidance

https://learning.nspcc.org.uk/child-protection-system/gillick-competence-fraser-guidelines#heading-top


  • Other guidance

https://safeguardinghub.co.uk/gillick-competence-and-fraser-guidelines-guide-and-resources/

 

 

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Ruth McGuire has extensive experience in education as a lecturer/tutor and in the development of accredited courses within the further education sector. She is now involved in the inspection of education/social work courses. In addition, she has various roles as a patient advocate/representative within the NHS and is also an experienced writer/researcher.