Medical Consent for Children/Minors

Denise Kirwan

Medical and surgical procedures involving minors require an informed consent. However, in the case of children, that informed consent should generally come from the child’s parent or guardian as appropriate. This usually applies to scheduled procedures, in other words, situations where the child is scheduled e.g. to have their tonsils removed on a given day and the admission to hospital is a planned one. However, this isn’t always the case. In emergency procedures it is generally accepted that a doctor must act in good faith and in accordance with the best interest of the child. In a situation following a road traffic accident, for example, where there may not be sufficient time to track down or obtain consent from family, a surgeon is entitled to proceed in the absence of consent where delay would only serve to place the child in further danger.

Another type of situation which will occur from time to time is that where a child who is in the care of a Health Board may require a scheduled medical procedure to be carried out, e.g. tonsillectomy, the insertion of grommets, etc. Where a child is in the statutory care of the Board (in other words, where an Order has been made by the Court under Section 18 of the Child Care Act 1991) the Health Board itself is entitled to give medical consent instead of a parent where appropriate.

Practice will vary between Health Boards as to who is the appropriate “designated officer” within the Health Board to give that consent and it is important to ascertain who that person is in each locality. It may be a childcare manager or a senior social worker as appropriate. Generally speaking however, the child’s parent or guardian is still entitled to give a medical consent where they are contactable and co-operative with the medical personnel. What Section 18 states amongst other things is “where a Care Order is in force, the Health Board shall have the like control over the child as if it were his parent and do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s health, development and welfare and in particular, have the authority to….give consent to any necessary medical or psychiatric examination, treatment or assessment with respect to the child”. In other words, what the legislators are saying is that a Health Board shall have the authority to give medical consent but this doesn’t negate the parents’ right to give a consent where they are willing and capable of doing so.

It is important when treating a child in the care of a Board to enquire as to their legal status. A child in the care of a Board will either be the subject of a Care Order pursuant to Section 18 of the Child Care Act 1991 (as above) or alternatively, children can also be admitted to the “voluntary care” of a Health Board. This is a type of arrangement whereby a parent signs a consent to voluntary care allowing their child to be placed in either foster or residential care without the need to obtain a Care Order. This situation can create an anoma1y from the point of view of medical consents in so far as the only person entitled to give a medical consent in that situation is still the guardian or parent.

Situations will occur however, where that parent or guardian will either refuse to cooperate in giving a medical consent or in some cases the parent may not be traceable in the community. There is a Section of the Act which will assist in this type of situation, that is Section 47 of the Child Care Act 1991 which reads “where a child is in the care of a Health Board (note this will include voluntary care) the District Court may, of its own motion, or on the application of any person give such directions and make such Order on any question affecting the welfare of the child as it thinks proper….”Where a child is in the voluntary care of a Health Board and there is a difficulty in obtaining a medical consent from the parent/guardian, the child’s social worker can instruct the Health Board solicitor to apply to Court under Section 47 of the Act. In doing so the Board’s  solicitors are obliged to serve a Notice of Application on the child’s parents (or at their last known address) giving two days prior notice of the Court Hearing. Generally, a brief report will be required from the medical personnel treating the child setting out the procedure which requires the consent and most importantly setting out why the child requires this procedure in furtherance of their health, development and welfare.

Effectively what happens is that the Judge grants a direction under Section 47 of the Act and a form of consent is obtained from the Court allowing the procedure to go ahead in the absence of the parents’ permission. Again this applies particularly in re1ation to scheduled procedures where there is sufficient time to serve the parents with notice and allow the matter to be heard in Court.

Unfortunately, in some situations time will be of the essence and it is not unprecedented for a parent to refuse consent for emergency treatment on the grounds, for example, of religious beliefs. A situation arose in Ireland last year whereby a child whose parents were Jehovah’s Witnesses, was involved in a serious accident, admitted to hospital and the parents objected to a blood transfusion being carried out on the child because of their religious beliefs. The carrying out of a transfusion in the case of a Jehovahs Witness has profound and spiritual implications for them as individuals and where at all possible such beliefs shou1d be respected and alternative treatments considered. Nonetheless, it is down to the individual judgment of a surgeon as to whether or not in the interest of saving a child’s life he is prepared to override the religious beliefs of the parent.

In that case the Gardai removed the child (presumably from the custody of his parents) pursuant to Section 12 of the Child Care Act 1991. Section 12 of the Act provides “where a member of the Gardai Siochana has reasonable grounds for believing that there is an immediate and serious risk to the health and welfare of the child and it would not be sufficient for the protection of the child from such immediate and serious risk to await the making of an application for an Emergency Care Order by a Health Board….remove the child to safety and deliver the child into the custody of the Health Board for the area in which the child is for the time being.” Thereafter, within a maximum period of 72 hours, the relevant Health Board must either return the child to the custody of its parent or go ahead and apply for an Emergency Care Order under Section 13 in the District Court. The power given to the Gardai in these situations is quite extreme and should only be used where serious and immediate risk to the health or welfare of a child is clearly identified.

Lastly, when the Child Care Act of 1991 was introduced, it extended the age definition of a child from 16 to 18 years. Therefore, technically under the Child Care Act, a child remains “a child” until he/she attains the age of 18 years. However, the Non-Fatal Offences against the Person Act 1997 at Section 23 therein states “the consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which in the absence of consent would constitute a trespass to his or her person, shall be as effective as it would be if he or she were of full age and where a minor has by virtue of this Section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his or her parent or guardian”. At subsection 2 it goes on to state in this Section, surgical, medical or dental treatment includes any procedure undertaken for the purposes of diagnosis and this Section applies to any procedure (including in particular, the administration of an anaesthetic) which is ancillary to any treatment as it applies to that treatment“.  This Section enables medica1 personnel to take a consent from a minor over 16 years provided of course, that minor has an adequate understanding of the procedure and can of course give an informed consent.

Additional Information

If you want to know more about treating children in foster care, contact the Child Care Policy Unit of the Department of Health and Children and ask for a circular issued on November 30, 1999:“Consent to Medical Treatment for Foster Children”

There is no Irish book devoted to consent and the medical treatment of children, however the British Medical Association has just published a book on the subject. Although the book, Consent, Rights and Choices in Health Care for Children and Young People, deals specifically with the law in Britain, much of our law in Ireland leans heavily on English law. The BMA website is www.bma.org.uk.

Denise Kirwan is in practice with the firm Conway Kelleher Tobin. This article appears courtesy of St Paul Ireland, in whose newsletter it first appeared, and of course with thanks to Ms Kirwan.

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