Young People & Medical Care

Sometimes disagreements arise between parents and young people about healthcare decisions. Common examples include a difference of views about a course of treatment or access to medical records. We can help parents or young people who find themselves involved in disputes about these and related matters.

What is meant by the expression “young people”?

The expression young people does not have a strict legal definition. We use it here to mean children – those under the age of 18 – who nevertheless have the intelligence, judgement and maturity to be involved in decisions about their medical care. There is no set age at which a child becomes a young person. Instead, it is a question of capacity.

Assessing capacity

Capacity can be used here interchangeably with understanding. There is no absolute test for deciding whether a young person has capacity. Also, capacity is context-specific. A young person might have capacity for some purposes, but not for others. For example, a young person might have the understanding to make a decision about a straightforward procedure but lack the capacity to consent to serious or high-risk treatment.

To have capacity, a young person ought to be able to understand, retain, use and weigh up information relevant to the particular medical decision. They ought to be able to appreciate the possible consequences of receiving or refusing treatment.

There is a legal presumption that young people aged sixteen and older will have capacity.

Parental responsibility

Parental responsibility includes the responsibility of parents to make decisions for children about medical treatment. This is a parental obligation, rather than a parental right. For so long as a child lacks understanding, those with parental responsibility are required to make decisions for him or her about a range of issues, to include medical ones. The rights surrounding the medical care belong to the child, but he or she is too young to exercise them properly.

The parental obligation exists for the benefit of the child rather than his or her parents. It exists only for so long as needed for the protection of the child or his or her property.

With understanding begins the gradual transfer of this obligation from the holders of parental responsibility back to the young person. Understanding, or capacity, means the young person is now able to make those decisions. At sixteen, there is a presumption that that transfer will be complete. At eighteen, when the young person becomes a legal adult, it is complete.

Consent to treatment

This issue was looked at in a very famous case heard by the House of Lords (as it was then) in October 1985, Gillick -v- West Norfolk and Wisbech Area Health Authority and Another [1986] 1 FLR 224. The case concerned the prescription of contraception to a girl under sixteen without her parents’ knowledge or consent.

The decision confirmed the principle that it is a young person’s right to make his or her own decisions about medical treatment when he or she has capacity.

Gillick continues to be the leading case on the developing autonomy of young people almost three decades later.

One of the Judges in Gillick was Lord Fraser, whose speech laid down five guidelines about the provision of contraceptive advice and treatment without parental consent. Known as the Fraser Guidelines, these are:

  • the young person will understand the professional’s advice;
  • the young person cannot be persuaded to inform their parents;
  • the young person is likely to begin, or to continue having, sexual intercourse with or without contraceptive treatment;
  • unless the young person receives contraceptive treatment, their physical or mental health, or both, are likely to suffer, and
  • the young person’s best interests require them to receive contraceptive advice or treatment with or without parental consent.

Gillick was concerned with the provision of contraception, but the principles identified apply to other treatments. Likewise, the case particularly focussed on doctors’ obligations to provide care to young people, but the basis of the court’s decision applies to other health professionals.

Patient confidentiality

As a general rule, a young person is entitled to the same right to confidentiality as an adult in the provision of healthcare.

A young person who asks for information about him or her, or medical treatment provided, to be kept confidential from parents, should usually have that request respected. Only in limited circumstances may patient confidentiality – whether it belongs to a young person or an adult – be overridden.

Patient confidentiality belonging to a young person may also be overridden, and information disclosed, if the healthcare provider judges that it is necessary in the interests of a young person who lacks the understanding to consent to the disclosure.

Access to medical records

Young people are entitled to access their own health records. They are also entitled to allow, or prevent, access by others (including parents). Data protection principles apply to young people as they do to adults.

How can we help?

  • Advise parents, children and / or medical professionals involved in a dispute about the provision of medical care or access to medical records about the legal issues arising;
  • Identify and direct those involved in these disputes to suitable specialist mediators;
  • Assist in resolving questions about the capacity of children and young people, to include liaising with appropriate medical / mental health professionals;
  • Represent parents, children and young people and / or medical professionals in proceedings to resolve disputes about the provision of medical treatment.

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