Children have the right to give and the requirement to provide consent in regards to their healthcare in much the same way as adults, but ensuring that you, as a doctor, receive genuine informed consent can be difficult. Can a child of 10 truly understand the ramifications of major surgery? What about a young teen? It can be hard to gauge, but the responsibility lies with the doctor to ensure their patients are able to be informed about their care and provide genuine consent if necessary—and where this is not possible, that parental consent and/or guardian consent can be given instead.
Related content: Informed consent: what doctors need to know.
There is no exact age at which a child (defined as a person under 16 years) can legally consent to health services. The law in this area has moved away from age-related thresholds to focus instead on the individual child’s level of competence and understanding. The Code of Health and Disability Services Consumers’ Rights (the Code) recognises that some children will be able to understand information and make informed choices about particular services.
The Medical Council advises that an assessment of whether an individual child is competent rests on a judgment of their understanding and maturity, considered in light of the nature of the procedure. This assessment is probably best dealt with using common sense. An example given by the Commissioner’s Office is that “while a child of 12 may be competent to consent to the setting of a broken limb, he or she may lack the necessary maturity in understanding to consent to heart surgery”. This is in accordance with Right 7 of the Code, the right to make an informed choice and give informed consent.
Where it is judged that a child is not able to provide informed consent this does not relieve the practitioner of the obligation to comply with Right 6, the right to be fully informed. Even though the parent may be providing the informed consent to a procedure, the child must still be provided with information proportionate to his or her level of understanding. The information should be communicated in a form, language and manner that enables a child to understand it.
Accordingly, the Commissioner could insist upon a medical practitioner providing two sets of information as part of the obligations to comply with Rights 6 and 7. One set for the parent or guardian to enable them to give informed consent to the proposed treatment, and an age appropriate set of information for the child to enable him or her to understand what is happening.
Section 36 of the Care of Children Act 2004 (“the Act”) provides that the consent of a child of or over the age of 16 years has effect as if the child were of full age. Under section 38 of the Act a female child of any age has the right to consent or refuse to consent to a medical or surgical procedure for the purpose of terminating her pregnancy.
Where consent by another person on behalf of a child is necessary, that consent may be given by a guardian of the child, a person acting in the place of a parent (if no guardian can be found) or a District Court Judge or Chief Executive (if no person acting in the place of a parent).
In conclusion, when obtaining the consent of a child an assessment needs to be undertaken, considering the competency of the child and the nature of the procedure, along with the views of the child’s guardian having regard to the best interests of the child.
Where consent from the child patient is not possible due to a lack of competency, understanding, maturity, and so on, it is instead required to gain consent from a guardian or parent.
Section 36 of the Care of Children Act 2004 (“the Act”) states that children over the age of 16 are considered legal adults who can provide informed consent.
People under 16 years of age are not automatically prohibited from consenting to medical, surgical or dental procedures so judgement of the patient’s competence to make an informed choice and give informed consent is needed in each instance. An assessment of the child’s competency should be undertaken and doctors should form an opinion on whether he or she is able to give informed consent.
Generally, a competent child is one who is able to understand the nature, purpose and possible consequences of the proposed investigation or treatment, as well as the consequences of non-treatment.
Under s 16 of the Act a guardian can consent to medical treatment on behalf of a child in circumstances where the child is deemed to be not competent to provide informed consent.
In circumstances where a child is not competent to provide consent and there is no suitable guardian to provide consent, section 36B the Act provides that consent may be given by a District Court Judge or the Chief Executive.
If parents refuse consent and the medical opinion is that this is against the best interests of the child, a Court application will be necessary for the child to receive treatment. The Act allows for a Court order to be made, under which the Court assumes guardianship of the child, to ensure they receive the appropriate treatment.
In other situations where time does not permit a court application, and provision of services are in the best interests of the child, Right 7(4) of the Code of Health and Disability Services Consumers’ Rights should be relied upon.
The Act regards anyone who has reached the age of 16 as an adult for the purpose of consenting to treatment. However there are additional powers under this Act, to enforce treatment, where the person is aged between 16 and 20 and refuses to consent to treatment, against medical opinion. Legal advice should be sort before invoking these powers.
Current as at 17 October 2018
If you have further questions about informed consent for children, or you are concerned about a recent interaction that included the potential need for informed consent, get in touch with NZMPI’s team of medico-legal advisors now.