Valid consent for treatment or care can normally come from anyone who holds parental responsibility [1]. The expectation is that someone with parental responsibility will be acting in the child’s best interests.
As a child grows up, the law anticipates that they will, in time, develop the understanding and maturity to make some decisions about treatment or care for themselves. This is known as “Gillick” or “Fraser” competence, named after a case in which a court rejected a mother’s claim that her daughters under 16 should not be allowed to access contraceptive advice and treatment without her knowledge.
A “Gillick competent” child under 16 can typically consent to treatment without a parent being involved.
Though still a “child” under the Children Act 1989 until age 18, there is a legal presumption that a person is competent to consent to their own medical treatment from age 16 (under the Family Law Reform Act 1969, s8, and the Mental Capacity Act 2005). However, this does not apply if the child is clearly not capable of making such decisions.
This creates a patchwork of potential decision-makers, which can sometimes lead to conflict. For example, where a parent wants treatment for a child who refuses it—and the child is either over 16 or younger but “Gillick competent”—clinicians may seek a court decision rather than relying solely on parental consent.
[1] Parental responsibility is a set of duties, responsibilities, and powers enabling specific adults to make significant decisions about a child. This includes decisions regarding a child’s living arrangements, education, upbringing, medical treatment, religion, etc. A mother automatically has parental responsibility. Others may acquire it if married to the mother at the time of birth, named on the birth certificate, or granted it by court order. All relevant decisions about a child must be discussed and agreed upon by all adults with parental responsibility.
Parental responsibility does not give the parents of an adult (over 18) the right to make decisions for them, regardless of mental capacity. Instead, such decisions are governed by the Mental Capacity Act 2005 (MCA).
