To be competent the patient has to be assessed and found to be

able to:

C Understand and retain the information relevant to their care

C To be able to utilize this information to consider whether they

should consent to the treatment intervention

C Able to communicate their wishes

Fraser guidelines:

C Young person will understand the professional’s advice

PAEDIATRIC SURGERY I

Consent in paediatricsMelissa Short

Ian Willetts

AbstractObtaining consent for surgical, investigative and interventional proce-

dures is an integral part of being a doctor who is involved in either

requesting or performing them. It requires knowledge not only of the

procedure involved, but also the ability to assess competence and there-

fore obtain valid consent from the appropriate person. Disclosure of infor-

mation must be appropriate and transparent between all parties involved.

This is particularly important when considering issues around consent in

children’s surgical practice.

Keywords Competency (Gillick consent)

Obtaining informed consent for emergency or elective surgical,

investigative and interventional procedures is an important

issue. Consent can be written, verbal or implied. In obtaining

informed consent, the Department of Health recommends that

parents and children should be provided with the following

information:

� risks and benefits of the treatment and what it will involve

� implications of not having the treatment

� available alternatives

� effect on their lives of not having the treatment.

In law, a child or minor is someone under 18 years of age.

Medical treatment in the statutory context includes diagnostic

procedures such as X-rays and some preventative measures such

as immunization, but according to most authorities Medical

treatment does not include cosmetic procedures, blood or organ

donation or research. However, the age of consent for all these

procedures under common law is 16 years of age.1

To give consent, the patient must be competent. To obtain

consent, one must establish whether or not they are compe-

tent. If a child is found not to be competent, the person with

parental responsibility needs to give consent. One must never

make the assumption that a child over 16 years is competent,

or that one under 16 years is not. Equally, it should not be

assumed that a child with reduced mental capacity is not

competent to give consent. They may be able to make

competent decisions if the information is presented to them in

an appropriate way.

The competence of a child must be assessed in relation to each

different procedure. It follows that an individual child may be

Melissa Short MRCS Specialist Registrar Paediatric Surgery at the Royal

Victoria Infirmary, Newcastle upon Tyne, UK. Conflicts of interest: none

declared.

Ian Willetts FRCS (Paed Surg) FRCS (Eng) Consultant Paediatric Surgeon/

Urologist & Clinical Lecturer at the Royal Victoria Infirmary, Newcastle

upon Tyne, UK. Conflicts of interest: none declared.

SURGERY 28:1 9

able to consent to some procedures but not others. For example,

a child with appendicitis may be able to consent to an appendi-

cectomy or a child with a fracture to a manipulation, whereas if

the same child had renal failure they may not be able to consent

to complex decisions in relation to renal transplantation. A child

of 16 years should be deemed competent to give consent unless

proved otherwise. It is a good practice to involve children and

parents together with 16e17-year-old patients unless specifically

requested not to.

The Bristol Royal Infirmary Report recommended that chil-

dren should be allowed to ask questions relating to their care and

be given truthful answers clearly and that training should be

given to healthcare professionals who deal with children

regularly.2

Gillick competence

This term originated in England and is used in medical law to

decide whether a child, 16 years or under, is able to consent to

their own medical treatment without the need for parental

permission or knowledge.2 In the Gillick case (1985), the House

of Lords held that ‘parental rights’ did not exist other than to

safeguard the best interests of the minor. Lord Scarman’s test of

‘Gillick competency’ states that a child could consent if they

fully understood the medical treatment proposed. This would

mean that the child is able to prevent their parents from viewing

their medical notes and make their own informed decisions. The

Gillick test refers to capacity, not choice-making ability of the

child.3

Fraser guidelines

Fraser guidelines, developed by Lord Fraser in the House of

Lords refer specifically to contraception in those less than 16

years of age.3

C Young person cannot be persuaded to inform their parents

C Young person likely to begin, or to continue, sexual inter-

course with or without contraceptive treatment

C Unless the young person receives contraceptive treatment,

their physical or mental health, or both are likely to suffer

C The young person’s best interests require them to receive

contraceptive advice or treatment with or without parental

consent

� 2010 Elsevier Ltd. All rights reserved.

PAEDIATRIC SURGERY I

Completing consent

If a child is under 16 years of age and they lack Gillick compe-

tence, consent should be given by the person with parental

responsibility. For written consent, only one signature is gener-

ally required, but it is a good practice to involve both parents if

possible.

The Children Act 19894 listed in the Department of Health

Consent: Working with Children listed the following people as

having parental responsibility:

C Child’s parents if they were married at time of conception

C Child’s mother alone if the parents were not married before

December 2003e unless the father has subsequently acquired

parental responsibility through a court order, subsequent

agreement or marriage

C In the case of a child born after December 2003, both parents

have parental responsibility regardless of marital status, if the

father’s name is on the birth certificate5

C The child’s legal guardian

C Any person in whose favour the Court has made a residence

order relating to the child in question

C A local authority that has been designated in a care order in

respect of the child e but not if the child is looked after under

section 20 of the Act

C A local authority or other person who holds an emergency

protection order in respect of the child

Special circumstances

1. A child with complex needs

If the child is cared for in a residential setting they should

have a care plan in place involving both the parents and

carers.

2. The child away from home or person with parental

responsibility

A person with parental responsibility can make appropriate

arrangements for their responsibility to be met by others, for

example teachers or child-minders. Usually done in writing,

this is useful for working parents and those whose children

are at boarding school.

3. Ward of the Court

If the child is a ward of the Court, the Court must give

consent. There is a provision in the Children Act 1989

allowing a person who does not have parental responsibility

but who does have care of the child to ‘do what is reasonable

in all the circumstances for the purpose of safeguarding or

promoting the child’s welfare’. Depending on the case and

SURGERY 28:1 10

treatment required, this allows step-parents, teachers and

others to consent to treatment whilst temporarily within

their care.

4. Patient whose mother is under 16 years of age

If the mother is under 16 years of age and not Gillick

competent, she will be unable to consent for her child. This

should be referred to the Court to ascertain who has consent,

but the parent should be given the opportunity to be

involved in all discussions about care.

5. Dual signature

Circumcision performed for clinical reasons requires only

one signature for consent. Non-therapeutic circumcision is

no longer performed by the National Health Service.

Permission for non-medical male circumcision requires

given consent from both parents and this in turn requires

two signatures on the consent form to demonstrate that both

have been involved in the decision-making process.6

Currently, there are no other instances where dual consent is

required.

Where parents and clinicians disagree

Article 8 of the European Convention on Human Rights concerns

respect for private and family life, and should be the forefront of

any considerations about the involvement of parents in decision-

making on behalf of their children. If the parents cannot agree

with clinicians about a necessary proposed treatment, an appli-

cation can be made to the Court for the treatment to go ahead.

Hospital trusts should have access to a judge through a solicitor

24 hours a day to discuss difficult cases. In most instances things

can be resolved without Court intervention, but in an emergency

situation where there is no time for the Court to act, the

Department of Health advises that treatment should be given

immediately and clarification sought after.7 A

REFERENCES

1 Elmalik K, Wheeler RA. Consent: luck or law? Ann R Coll Surg Engl

2007 Sept; 89: 627e30.

2 www.patient.co.uk

3 R. Gillick or Fraser? A plea for consistency over competence in children.

BMJ 2006; 332: 807.

4 The Children Act 1989. London: HMSO, 1989.

5 Adoption and Children Act 2002 s 111 e amending Children Act 1989.

6 Management of foreskin conditions. Statement from the British

Association of Paediatric Urologists on behalf of the British Associa-

tion of Paediatric Surgeons and The Association of Paediatric Anaes-

thetists e 2006.

7 eidohealthcare.com/consent/module2/section3.html

� 2010 Elsevier Ltd. All rights reserved.