Consent to Treatment and Parental Rights and Responsibilities

People aged 16 or over are entitled to consent to their own treatment, and this can only be overruled in exceptional circumstances.

Like adults, young people (aged 16 or 17) are presumed to have sufficient capacity to decide on their own medical treatment, unless there is significant evidence to suggest otherwise.

• Consent will only be valid if it is given voluntarily by a young person who has received and understood the appropriate information. As with adults, a young person has the right to consent to treatment.
• Where a child under the age of 16 lacks the capacity to consent, consent can be given on their behalf by any one person with parental responsibility or by the court (see later in this booklet).

When we are trying to decide whether a child is mature enough to make decisions, people often talk about whether a child is ‘Gillick competent’ or whether they meet the ‘Fraser guidelines’.

The Gillick competency and Fraser guidelines help us all to balance children’s rights and wishes with our responsibility to keep children safe from harm. Gillick competency and Fraser guidelines refer to a legal case which looked specifically at whether doctors should be able to give contraceptive advice or treatment to under 16-year-olds without parental consent, but since then, they have been more widely used to help assess whether a child has the maturity to make their own decisions and to understand the implications of those decisions.

Professionals working with children need to consider how to balance children’s rights and wishes with their responsibility to keep children safe from harm. If a child is deemed Gillick competent, additional consent by a person with parental responsibility is not required.

If a young person refuses treatment, and by doing so this may lead to their death or a severe permanent injury, their decision can be overruled by the Court of Protection. This is the legal body that oversees the operation of the Mental Capacity Act (2005).

The parents of a young person who has refused treatment may consent for them, but it is usually thought best to go through the courts in such situations.

• If a child under 16 does not have the capacity to consent to treatment, someone with parental responsibility can consent for them. The person with parental responsibility must have the capacity to give consent, be acting voluntarily and be appropriately informed. The child’s welfare or ‘best interests’ must be the first concern.
• If a parent refuses to give consent for a particular treatment, the courts can overrule this decision if they believe the treatment is in the child’s best interests.
• If one person with parental responsibility gives consent and another does not, the healthcare professionals can accept the consent and perform the treatment. If the people with parental responsibility disagree about the child’s best interests, the courts can decide.
• In an emergency, where treatment is vital and waiting for parental consent would place the child at risk, treatment can proceed without consent.

All mothers and most fathers have legal rights and responsibilities as a parent – known as ‘parental responsibility’. If you have parental responsibility, your most important roles are to: 

• provide a home for the child 
• protect and maintain the child.

If you have parental responsibility for a child you do not live with, you do not necessarily have a right to contact with them – but the other parent still needs to keep you updated about their wellbeing and progress.

If you have parental responsibility for a child you do not live with you are also responsible for: 

• disciplining the child 
• choosing and providing for the child’s education 
• agreeing to the child’s medical treatment 
• naming the child and agreeing to any change of name 
• looking after the child’s property.

Parents have to ensure that their child is supported financially, whether they have parental responsibility or not.

A person with parental responsibility for a child could be: 

• the child’s mother or father 
• the child’s legally appointed guardian 
• a person with a residence order concerning the child 
• a local authority designated to care for the child 
• a local authority or person with an emergency protection order for the child.

A mother automatically has parental responsibility for her child from birth. A father usually has parental responsibility if he is: 

• married to the child’s mother 
• listed on the birth certificate (after a certain date, depending on which part of the UK the child was born in).

You can apply for parental responsibility if you do not automatically have it.

If the parents of a child are married when the child is born or if they have jointly adopted a child, both have parental responsibility. They both keep parental responsibility if they later divorce.

An unmarried father can only get legal responsibility for his child in one of three ways:

• jointly registering the birth of the child with the mother (from 1 December 2003)
• getting a parental responsibility agreement with the mother
• getting a parental responsibility order from a court.

A father has parental responsibility if he is married to the mother when the child is conceived, or marries her at any point afterwards.

An unmarried father has parental responsibility if he is named on the child’s birth certificate (from 4 May 2006).

A father has parental responsibility if he is married to the mother at the time of the child’s birth. If a father marries the mother after the child’s birth, he has parental responsibility if he lives in Northern Ireland at the time of the marriage. An unmarried father has parental responsibility if he is named, or becomes named, on the child’s birth certificate (from 15 April 2002).

If a child is born overseas and comes to live in the UK, parental responsibility depends on the UK country they are now living in. Same-sex partners who were civil partners at the time of the treatment will both have parental responsibility.

For same-sex partners who are not civil partners, the second parent can get parental responsibility by either: 

• applying for parental responsibility if a parental agreement was made 
• becoming a civil partner of the other parent and making parental responsibility agreement or jointly registering the birth.

If you are not the mother, you can apply to court to get parental responsibility. You need to be connected to the child, for example as their father, step-parent or second female parent. More than two people can have parental responsibility for the same child.

Scotland has its own set of rules, covered under ‘ordinary cause procedures’.

If you are a father who wants parental responsibility and the mother agrees, you can fill in a parental responsibility agreement. There is a different agreement form for step- parents. If you want parental responsibility but cannot agree on arrangements with the mother, you can apply for a court order.

If you and your partner use a surrogate to have a child, you will need to apply for a parental order.

Grandparents, foster parents and child minders cannot give consent unless they hold a legally binding court order, as above.

If a person who can give legally binding consent is unable to accompany a child to an appointment, they may write a letter giving consent for the named procedure /immunisation for the child and send this, signed, with the child and carer to the appointment.

In some cases it may be necessary to ask for evidence of parental responsibility and who can give consent for the treatment.

If there are questions raised in relation to who can consent.

liaison may take place between the hospital and/or the safeguarding children team and other agencies, such as children’s social care, to clarify consent.

If you have any further concerns or questions please do not hesitate to contact the Safeguarding Children Team on 01206 742267.

When you attend hospital you will be asked to confirm your first and last names, date of birth, postcode and NHS number if you know it, and to let us know if you have any allergies.