Children and young people
“When adults are making decisions that affect children, children have the right to say what they think should happen and have their opinions taken into account.”
(UNICEF, A summary of the Convention on the Rights of the Child, Article 12)
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.
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
It is not clear, however, whether someone of this age also has a right to refuse 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 (see Box 4) 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 or, if necessary, a court of law.
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.
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
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 as far as possible in the decision-making process (see Box 5).
Box 4: When a minor refuses treatment
“The child has rights protected under the Constitution — to autonomy, to bodily integrity and to dignity — and these rights are not dependent on the child having legal capacity to consent. On this basis, ... the imposition of treatment on a resistant child is something which should be approached with great care and ... matters such as the child’s best interests and the least invasive alternative should be taken into account.”
Source: Kilkelly, U and Donnelly, M, The Child’s Right to Be Heard in the Healthcare Setting, Office of the Minister for Children (2006)
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.
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
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.1 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”.2
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 case officer appointed by 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.
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
Consent to disclosure of personal health information3
“The minimum age at which a person can give consent to having their personal data processed is not specified in the Data Protection Acts.
“Section 2A(1) of the Acts provides that, where a person by reason of his or her physical or mental incapacity or age, is or is likely to be unable to appreciate the nature and effect of giving consent, such consent may be given by a parent or guardian or a grandparent, uncle, aunt, brother or sister of the person provided that the giving of such consent is not prohibited by law.
A young person of 16 or above could give consent to the processing of their medical data
“Where a person is under the age of majority (18), the Acts require the data controller to make a judgement on whether the young person can appreciate the implications of giving consent.
“The ... Non-Fatal Offences Against the Person Act, 1997 (Section 23) provides that a minor who has reached the age of 16 can give consent to medical treatment. It would therefore be reasonable to conclude that a young person of 16 or above could give consent to the processing of their medical data.
"For a person under that age, Managing and Protecting the Privacy of Personal Health Information in Irish General Practice4 provides useful guidance. It suggests that, where the individual is under 16, consent may still be given, but that this requires that the medical practitioner involved assess whether the young person has the maturity to understand and make their own decisions about the handling of their personal health information.
"In relation to the right of access to health data, it recommends that the general practitioner use professional judgement 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, it suggests that particular regard should be had to the maturity of the young person concerned and his or her best interests. This guidance on the exercise of the right of access could also usefully be applied in other contexts.”
Box 5: Best practice for involving children in healthcare decisions
“... best practice in this area may be summarised as follows:
- the child must be involved in treatment decisions as far as possible
- the patient’s parents or carers must be involved in treatment decisions
- the views of children must be obtained and respected
- the relationship between healthcare professional and child should be based on truthfulness, clarity and awareness of the child’s age
- children must be listened to and their questions responded to, clearly and truthfully
- communication with children is not a once-off occurrence, but must be an ongoing process
- training in communication skills with children is an essential component of appropriate professional training.”
Source: Kilkelly, U, and Donnelly, M, The Child’s Right to Be Heard in the Healthcare Setting, Office of the Minister for Children (2006)