Is the recent review from the US on child consent anything new to us here in the UK?

The recent article in the Guardian had me thinking about consent and specifically when a child should be consulted with or even instead of their parents.

The article was written following a recent American study which served to remind doctors that they should be talking to children about their conditions and treatment options and concluded that children as young as seven can understand and agree to tests or treatments.

Whilst part of me welcomes the recent attention this report is undoubtedly going to shine on the issue, I can’t help but feel that this is nothing new to us here in the UK.

In 1985, the UK had the landmark case of Gillick v West Norfolk and Wisbech Area Health Authority. The facts of that case involved a mother who had five daughters all under the age of 16 and wanted reassurance from the local health authority that advice or treatment in relation to contraception would not be given or prescribed to any of them without her knowledge and, more importantly, consent.

The health authority refused to give such an assurance and as such the case came before the Courts ultimately ending up in the House of Lords (now the Supreme Court). The main issue which the House of Lords dealt with was that of consent and it was concluded by Lord Scarman that a child could consent if he or she fully understood the medical treatment that is proposed. This test is generally considered to be the test of 'Gillick competency'.

The Gillick case related to contraception and was, in reality, theoretical as Mrs Gillick was simply seeking a declaration that advice or treatment would not be given if sought by her daughters without her consent, however I’m sure we all know someone who sought medical attention under the age of 16 without their parents present and who were provided with whatever advice and treatment they provided.

The idea to me that medical professionals in this country will not seek or accept consent from children under 16 is an alien one but, perhaps stemming from America, this study is something which is vitally needed to ensure that children are given information and treatment when it is being sought whether their parents are present or not.

Consent in itself is also a bit of a hot topic at the moment with the 2015 case of Montgomery v Lanarkshire Health Board. In this case Mrs Montgomery gave birth to her son by vaginal delivery. The birth was complicated by shoulder dystocia, a condition where the baby’s shoulder’s get stuck behind the mother’s pubic bone and can result in damage to the baby’s shoulder or, in some cases, delay in delivery of the baby. In Mrs Montgomery’s case, the medical staff performed the appropriate manoeuvres to release the baby’s shoulder but there was a 12-minute delay in delivery during which he was deprived of oxygen and subsequently diagnosed with cerebral palsy.

Mrs Montgomery was diabetic and small in stature and the risk of shoulder dystocia in her specific case was agreed to be 9-10%. Despite expressing concern to her consultant about whether she would be able to deliver her baby vaginally, the doctor failed to warn Mrs Montgomery of the risk of serious injury from shoulder dystocia or discuss with her alternative options including the possibility of an elective caesarean section. The Court found that Mrs Montgomery ought to have been told about the relevant risks and options available to her and concluded that had this been done she would have elected to undergo caesarean section and her baby would most likely have been born without any injuries.

Doctors must now ensure that patients are aware of any 'material risks' involved in a proposed treatment, and of reasonable alternatives. This is seen as moving away from the ‘reasonable doctor’ to the ‘reasonable patient’ following the Court’s ruling that:

The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.

The law is clearly changing in respect of children and consent but the suggestions that doctors should listen to their patients, even if they are children, seems more in line with recent case law and surely would empower the patient to feel involved in their own health and treatment something which I can only see as a good thing.