Rules about consent to treatment  is mostly common law in the UK, not legislation, and therefore the law is likely to change over time.

The law in respect of children’s power to consent, and thier autonomy generally was laid down in the Gillick case.  Lord Scarman’s test is generally considered to be the test of ‘Gillick competency’. He required that a child could consent if he or she fully understood the medical treatment that is proposed:

“As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.” Lord Scarman

The ruling holds particularly significant implications for the legal rights of minor children in England in that it is broader in scope than merely medical consent. It lays down that the authority of parents to make decisions for their minor children is not absolute, but diminishes with the child’s evolving maturity; except in situations that are regulated otherwise by statute, the right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own mind on the matter requiring decision.

The principles of the Mental Capacity Act:

  1.  A person must be assumed to have capacity unless it is established that he/she lacks capacity.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision.
  4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his/ her best interests.
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Age of Legal Capacity (ScotlandAct 1991

CASE OF GLASS v. THE UNITED KINGDOM ECHR 2004

Consent To Treatment (Mental Capacity and Mental Health Legislation) (England & Wales)

Department of Health guidance

Ethical Principles for conducting Research with Human Participants

Gillick v West Norfolk and Wisbech Area Health Authority 1985

Mental Capacity Act 2005

Mental Health (Care and Treatment) (Scotland) Act 2003

Mind rights guide 3

Research: The Role and Responsibilities of Doctors GMC 2008

UK Clinical Ethics Network

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