In general, any patient can refuse treatment from medical practitioners, however, the situation is not as straightforward where children are concerned.
Legal rights of parents when refusing medical treatment for children
When a doctor has advised that a child needs to undergo a medical procedure/treatment, those who have parental responsibility for the child ordinarily have the right to decide whether or not to go ahead.
However, parents do not have an absolute or irrefutable right to refuse medical treatment for a child and there have been a number of landmark cases in England and Wales on this issue. Consequently, there are several different and key scenarios in which parents’ wishes can be overruled.
Children old enough or mature enough to decide for themselves
The first recognised scenario concerns children who are deemed to be old enough or mature enough to decide for themselves and a higher weight is placed on that decision. In English law, children do not legally have an absolute right to decide for themselves whether to accept treatment.
Older children, who have not yet reached the age of 18, can be deemed to have “Gillick competence”, which can enable them to override their parents’ views. The concept of “Gillick competence” arose from a case involving a child consenting to contraceptive treatment despite the religious objections of her Catholic mother (Gillick v West Norfolk & Wisbech Area Health Authority  AC 112). This decision can in theory apply to more serious treatments and this case has set a precedent that in very limited circumstances, doctors can follow the wishes of Gillick competent children, contrary to the instructions of their parents.
Circumstances involving life and death
The second set of circumstances in which parents can be overruled by medics concerns matters of life and death. It is recognised in English law that doctors can simply administer life-saving treatment when a minor patient or a patient without capacity refuses, or the parents of a child patient have refused to follow medical advice.
This is often the case where parents do not consent to surgery for religious reasons or simply because they do not understand the advice the medical practitioners are giving, although doctors can only normally go ahead without recourse to the Courts if there is a risk the patient will die.
High Court orders
Thirdly, the local NHS Trust can apply to the High Court for an order that treatment will proceed despite the objections of parents. This can happen if medical practitioners believe a child will suffer significant harm if they do not undergo treatment and the parents of the child in question do not consent.
This is something of a grey area because medical opinions can differ and the practitioners must be able to demonstrate that without the treatment, there is a real risk of long-term damage to the patient. That risk must be greater than the risk the patient is exposed to by having the treatment itself, particularly where surgery is concerned.
Parents do always have a right to ask for a second opinion, however. There is clearly more chance of the High Court requiring treatment to take place if that second opinion endorses the medical advice in question. However provided the second medical advisor has similar qualifications to the original practitioner, if their opinion turns out to be very different, the Court would most likely not override the parents’ instructions. It is advisable however for parents to act quickly in such circumstances because delays can be damaging both medically and legally.
Medical practitioners with concerns over the welfare of a child have a duty to ensure that child is protected from harm and sometimes dilatory responses from parents can pose a risk in itself.
How can Nelsons help?
If you have any questions regarding the subjects discussed in this article, please contact Lewis or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.