Consent to medical treatment

Adults, defined as people over the age of 18, are usually regarded as competent to decide their own treatment. The Family Law Reform Act 1969 also gives the right to consent to treatment to anyone aged 16 to 18.

Young people under the age of 16 can consent to medical treatment if they have sufficient maturity and judgement to enable them fully to understand what is proposed. This was clarified in England and Wales by the House of Lords in the case of Gillick vs West Norfolk and Wisbech AHA & DHSS in 1985.

Similar provision is made in Scotland by The Age of Legal Capacity (Scotland) Act 1991. In Northern Ireland, although separate legislation applies, the then Department of Health and Social Services Northern Ireland stated that there was no reason to suppose that the House of Lords' decision would not be followed by the Northern Ireland Courts.

Although it is an offence to have sex with someone under the age of 16 it is lawful for doctors to provide contraceptive advice and treatment without parental consent providing certain criteria are met. These criteria, known as the Fraser Guidelines, were laid down by Lord Fraser in the House of Lords' case and require the professional to be satisfied that:

• the young person will understand the professional's advice;
• the young person cannot be persuaded to inform their parents;
• the young person is likely to begin, or to continue having, sexual intercourse with or without contraceptive treatment;
• unless the young person receives contraceptive treatment, their physical or mental health, or both, are likely to suffer;
• the young person's best interests require them to receive contraceptive advice or treatment with or without parental consent.

Although these criteria specifically refer to contraception, the principles are deemed to apply to other treatments, including abortion.

Young people under the age of 16 have as great a right to confidentiality as any other patient. If someone under 16 is not judged mature enough to consent to treatment, the consultation itself can still remain confidential.

The judgement in the House of Lords referred specifically to doctors but it is considered to apply to other health professionals, including nurses. It may also be interpreted as covering youth workers and health promotion workers who may be giving contraceptive advice and condoms to young people under 16, but this has not been tested in court.

If a person under the age of 18 refuses to consent to treatment, it is possible in some cases for their parents or the courts to overrule their decision. However, this right can only be exercised on the basis that the welfare of the young person is paramount. In this context welfare does not simply mean their physical health. The psychological effect of having the decision overruled would have to be taken into account and would normally only be an option when the young person was thought likely to suffer "grave and irreversible mental or physical harm". Usually when a parent wants to overrule a young person's decision to refuse treatment, health professionals will apply to the courts for a final decision.