Does a child have mental capacity to consent to medical treatment?

The general rule is that a child under the age of 16 is presumed to lack sufficient mental capacity to make decisions about their own medical treatment.

In the case of Gillick, the court decided that contraception can be prescribed to under sixteens without parental consent if the child has sufficient maturity and intelligence to understand what this involves. This is known as Gillick competence.

For children under the age of 16 who are not Gillick competent, their parents can consent on their behalf.

Over the years, the Court of Protection has made medical decisions on behalf of children in many cases including for:

a) A child who refused a blood transfusion because of her beliefs as a Jehovah’s Witness;

b) A child with anorexia who refused treatment.

In the recent case of Bell v the Tavistock, the High Court considered whether children receiving treatment for gender dysphoria can give informed consent to puberty blocking (PB) treatment.

A child who wishes to change their gender may want to postpone puberty until they attain the age of 16 and can be treated with cross gender hormones. This postponement can be achieved with PB drugs.

The age of children seeking PB drugs ranges from 10 to 18. Up until now, children had been assessed as being Gillick competent to consent to this treatment.

The court noted that PB treatment is relatively new and therefore not all the long term consequences of the treatment are fully understood but are complex and life changing.

Some of the long term consequences relate to sexual functionality and being able to give birth or conceive children. Many of the children embarking on PB treatment said that they found the idea of sex disgusting, which is consistent with being pre-pubescent. These are therefore difficult areas for young teens to make long term decisions about.

It was also argued that children under the age of 18 do not have a fully developed brain and this will affect their decision making especially in respect of complex emotional decisions.

Many children seeking PB treatment are suffering psychological distress as a result of their gender dysphoria. Their wish for PB treatment is likely to override concerns about problems they may encounter in the future in areas that are of little importance to them at the time.

The court concluded that it is unlikely that a child under the age of 16 would be competent to give informed consent for PB treatment. This means that in the future doctors will have to apply to the court for authority to proceed with the treatment.

At Hodge Jones & Allen, we often have to consider whether children will have capacity to manage large damages awards when they attain the age of 18. This judgement deals mainly with under sixteens in respect of medical treatment, but includes some useful analysis of the some of the issues that arise when considering mental capacity and teenagers.