Children and young people

Although the age of majority is 18, the law recognises 16 and 17 year olds as having the capacity to consent to medical and dental treatment on their own behalf.

It is not clear, however, whether someone of this age has a right to refuse as well as consent to treatment as this has not yet been tested in the courts. Theoretically, a parent or legal guardian can consent to treatment that a 16 or 17 year old is refusing, but this is not an ideal situation (especially if the minor concerned has the capacity to understand the implications of his/her decision) and in such circumstances it is probably better to refer the matter to the courts to decide.

If a minor of 16 or over is incapable of giving consent, it may be obtained from the young person’s parent/guardian (see Box 4) or, if necessary, a court of law.

It is not clear whether someone [aged 16 or 17] has a right to refuse as well as consent to treatment as this has not yet been tested in the courts

Box 4: Who can consent on behalf of a minor

The minor him/herself – Under The Non-Fatal Offences Against the Persons Act
1997, minors aged 16 or 17 may consent to surgical, medical or dental treatment.

Parental consent is generally needed for all other minors, and for 16 and 17 year olds who lack capacity, but if a person under the age of 16 demonstrates the maturity to understand the implications of a particular treatment and does not wish his or her parents to be involved in that decision, the patient’s confidentiality should usually be respected.

Parents – A child’s mother, whether married or unmarried, has automatic legal guardianship of the child. The child’s father also has guardianship if he is married to the child’s mother, either before or after the birth of the child.

A father who is not married to the mother can be appointed as a joint guardian of the child if he and the child’s mother have made a statutory declaration to that effect. Alternatively, he can apply to the courts to be appointed a joint guardian.

Legal guardians – Testamentary (ie, named in a deceased parent’s will) and court-appointed guardians can make healthcare decisions on a child’s behalf.

Foster carers – Foster carers can consent to urgent medical treatment for a child. They can also consent to ancillary treatment, such as a general anaesthetic.* For non-urgent treatment, consent should be sought from the child’s natural parents. Foster carers or relatives who have been caring for a child for five years or more may be granted a court order that authorises them to consent to “any necessary medical or psychiatric examination, treatment or assessment with respect to the child”.**

HSE – If a care order has been made for a child under the age of 16, the HSE can consent to elective treatment in the best interests of the child. It is good practice, however, to also consult the child’s parents if possible.

The courts – If a child has been made a Ward of Court, the consent of the court is needed before medical treatment can be carried out, except in an emergency. The District Court can make an emergency care order placing a child in the care of the HSE if there is uncertainty or dispute about the validity of a refusal of treatment on the part of a parent or a minor aged 16 or more.

Consent to disclosure of personal health information – “...Where the individual is below [16 years], the general practitioner should exercise professional judgment, on a case by case basis, on whether the entitlement to access should be exercisable by (i) the individual alone, (ii) a parent or guardian alone, or (iii) both jointly. In making a decision, particular regard should be had to the maturity of the young person concerned and his or her best interests. ... In all of this, the general practitioner should have regard to both the established medical ethics position and the role of parents in their duty of care as laid down in case law.”†

* Department of Health and Children Circular, Consent to Medical Treatment for Foster Children, 6 November 1999.
** Child Care (Amendment) Act 2007, section 43A.
† ICGP and GPIT, Managing and Protecting the Privacy of Personal Health Information in Irish General Practice (2003)

If a child has been made a Ward of Court, the consent of the court is needed before medical treatment can be carried out, except in an emergency

In law, the consent of the parent or legal guardian is required if a child is under the age of 16. In practice, however, it is reasonable to seek the consent of a minor with the capacity to understand the nature and implications of the proposed treatment or procedure. This should not present a problem if the child and parents are in accord about a decision to consent to treatment. Difficulties can arise, however, if the parents of a minor are in disagreement with clinicians or the patient about what is in the child’s best interests.

Difficulties can arise if the parents of a minor are in disagreement with clinicians or the patient about what is in the child’s best interests

If there are two people with parental responsibility, it is usually sufficient for one of them to give consent, but where decisions may have profound, irreversible consequences, both of them should be consulted. The more complex the care and the greater the level of intervention required, the greater the need to include both parents in discussions and secure the consent of both.

You should also seek the consent of both parents when you have reason to believe that they may not be in agreement with one another (eg, if they are no longer living together, are in conflict, and have joint custody of the child).

Even when children lack the capacity to give consent, they should still be involved in the decision-making process.

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