In the absence of parental responsibility

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Clinicians who treat children often rely on those with parental responsibility for consent, to authorise our clinical interventions. What happens in practice when parental responsibility is absent or insufficient?

An alarming dilemma arises when an incompetent or incapacitated child is in immediate need of treatment to save their life or prevent irremediable harm; they are incapable of providing consent, and those with parental responsibility are uncontactable. On the basis of the doctrine of necessity, carry on and treat. Proceed without consent, acting in the child’s best interests. Delay in these circumstances is contrary to those interests.

But usually, there is time to seek authority to intervene, and the delay that ensues will not cause harm. A recent Scottish judgment concerned KL[1], whose patent ductus arteriosus had failed to close spontaneously, or with usual medications. He had been born prematurely in December 2023, and discharged three months later. His ductus did not close, and he failed to gain weight, remained tachypnoeic, and required diuretics. As a result of this pathophysiology, his growth was poor, and ultimately in early November 2024 surgical ligation was planned, since the ductus was too wide for a catheter-placed closure device to be deployed.

But the surgery was cancelled; because the anaesthetist, seeking consent, discovered that no-one had parental responsibility for KL. His parents were unmarried; his mother died prior to his discharge in March 2024, and his maternal aunt registered his birth. The child left hospital with neither designated parental responsibility nor a social worker. KL’s father’s name did not appear on the birth certificate, although remains in contact with him. Ever since, KL had lived with his maternal aunt. Both his aunt and his father supported the proposal of treatment, but neither had acquired parental responsibility, since that concept had never been discussed with them, and they were oblivious to the necessity that this formality be settled.

As one might imagine, the conduct of the hospital and the local authority with respect to allowing KL to be discharged from hospital without the benefit of a person with parental responsibility attracted the critical attention of the court. It seems that parental responsibility for KL, in favour of his aunt, will have now been dealt with without further delay. In the meantime, the court authorised the surgical ligation of the ductus, finding that this was in KL’s best interests.

But possession of parental responsibility may not be sufficient. G[2] was twelve, a ‘bright, intelligent and articulate girl.’ Eighteen months earlier, she had started progressively to restrict her oral intake, and had by the time of a court hearing ceased to take any food or drink. Her diagnosis was of anorexia nervosa and depression. Admitted to an intensive intervention unit for children (which was not registered by the CQC to exercise powers available under the Mental Health Act 1983), she could not be compulsorily treated, so the hospital applied to the court to authorise restraint to administer nasogastric feeding outside of the statutory framework. Her parents had consented to this enforced treatment, but the hospital felt it necessary to secure a judicial declaration that this was lawful. Amongst other points made in the case, the ‘zone of parental responsibility’ was addressed. This, in essence, demands that mental health clinicians ask themselves whether the decision in question (in this case whether restraint could be used to achieve feeding of their daughter) was ‘…one that a parent should reasonably be expected to make? Secondly, whether ‘…there were any factors that might undermine the validity of parental consent?’ In the case of G, the court concluded that where the parents and the clinicians agreed that treatment was necessary; it was lawful in her case to rely on the parent’s consent. Accordingly, a declaration that it was G’s interests to receive nourishment, if necessary by using restraint, was made.

These are rare clinical illustrations in which the ‘usual’ arrangements of parental responsibility may not apply. Seeking advice in these circumstances is recommended.

Mr Robert Wheeler
Department of clinical law
January 2025

[1] A Health Board in respect of KL [2024] CSOH 108

[2] An NHST v M&F&G [2024] EWHC 2207 (Fam)