No explicit guidance where a parent opposes a competent child's consent to treatment

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.

It is not unusual to hear that a child or young person is refusing treatment, and that those with parental responsibility are providing consent on his or her behalf. Whether parental consent is valid in these circumstances requires resolution in each case.

Highly unusual is a different presentation: where a competent child is seeking treatment and providing valid consent, but the parents oppose the intervention. A case occurred here recently, where a child sought treatment for a physical asymmetry, to which his father was diametrically opposed. It seems likely that his opposition was grounded in the fear that his son would be harmed. The intervention would have made the child happier, but neither his life nor limb depended upon it.

Naturally, the common law can provide guidance in circumstances that regularly appear in court, but decided cases relating to parents opposing their child’s wish for treatment are not forthcoming. Perhaps this is not surprising. It would be unusual for a clinician to offer treatment contrary to the patient’s interests, or for a parent in medical circumstances actively to oppose an intervention that would benefit their child. If they were disinclined to cooperate with their child’s wishes for what they considered frivolous surgery, the parent could simply refuse to bring them to clinic in the first place. After all, they’ll likely be the one arranging transport.

There are a handful of cases that touch on the ambit of parental control. Mrs Gillick failed in 1985 to have declared unlawful a policy that would have permitted her competent but underage daughter to be given contraception without parental consent. This lead to the notion that at any age, the child who has sufficient understanding and intelligence to know what an intervention involves will be competent to provide consent for it. But this was not a dispute between mother and daughter; Mrs Gillick’s target was the health authority who made the offer of contraceptive advice direct to her child.

In other cases relating to confidentiality, a 16 year old boy was allowed to disengage completely from his adoptive parents, and prevent them from receiving information concerning the management of his gender identity. A 17 year old girl sought to have the right to disclose to the press the details of her own teenage pregnancy, irrespective of parental approval, in Torbay Borough Council v News Group Newspapers. The court supported her claim on the basis of her competence to provide consent, and in turn, overruled any potential obstruction from her parents.

There are several reported ‘custody cases’ of children 10-17 years of age having their wishes to remain with one parent upheld by the court, in the teeth of fervent opposition from the other parent. However, none of these cases shed light on the parent seeking to obstruct their child’s elective surgery.

In the case of A, a 13 year old girl who was 21 weeks pregnant, a court found that she had sufficient understanding and intelligence to decide whether to continue with or terminate her pregnancy. Although the judge ‘...expected her family...to give her considerable support and assistance', the views of her parents were never revealed, only that the decision that the child had reached at the hearing (to terminate the pregnancy) ‘...was not the product of influence by adults in her family’. That confirms the notion that the competent child can independently consent to surgery, but still leaves us without guidance as to how to deal with the parent.  Seemingly the common law has yet to encounter this clinical situation.

We must acknowledge that a parent cannot overrule the consent of a competent child or capacitious young person for treatment. It has been noted that parental responsibility is ‘…a dwindling right which the courts will hesitate to embrace against the wishes of the child, the older he is. It starts with a right to control and ends with little more than advice’. The House of Lords in Gillick could not have been clearer: 'the parental right to determine whether or not ... the child will have medical treatment terminates with the advent of competence.'

Nevertheless, we have to face the situation in front of us. Seek the reasons underlying the contradictory views within the family, and encourage dialogue leading to resolution. The benefits of achieving reconciliation between parent and child likely outweigh that of any treatment you can provide.

Robert Wheeler
Department of clinical law, November 2020