Episode Overview

In this episode of The Hempsons Podcast, Anita Rao and Flora Jago take listeners through a concise but comprehensive tour of the legal framework surrounding consent and capacity for children and young people in healthcare settings. They explore how decision‑making differs between under‑16s, 16–17 year olds, and adults, and why understanding these distinctions is essential for clinicians and providers.

Key Topics Discussed

1. Why children and young people aren’t “small adults”
2. How decision-making in healthcare differs fundamentally and why providers must take a tailored approach.
3. Gillick competence explained
4. Its origins in the landmark Gillick case, how emotional and intellectual maturity factor into decisions, and why autonomy for under‑16s is treatment-specific.
5. The shift at age 16: the Mental Capacity Act
6. Why 16 and 17 year olds are presumed to have capacity unless assessed otherwise, and how this differs from the pre‑16 competence model.
7. Understanding parental responsibility (PR)
8. What PR really means, why not all parents have it, and why checking PR is crucial when seeking consent.
9. Common complexities and risk areas
10. Surrogacy arrangements, uncertainty over PR, involvement of local authorities, and serious medical treatment requiring careful navigation.
11. Managing disagreements
12. What happens when parents, clinicians, or the young person disagree about treatment, and why early escalation and specialist advice can prevent disputes from reaching court.

Takeaway Message

Consent and capacity in children’s healthcare is a nuanced, evolving area of law. Being aware of age thresholds, legal frameworks, PR boundaries, and potential disagreements enables clinicians to support safe, lawful decision‑making and avoid unnecessary conflict.

Additional Resources

For a deeper dive into this topic, Anita and Flora’s full webinar is available on the Hempsons YouTube channel.

Welcome to another episode of the Hempsons' Podcast. It's lovely to have you here and this week it's myself, Anita Rao, partner at the London Advisory team and my very capable colleague, Flora Jago, associate, also in London's advisory team. And we are hoping to take you through a whistle stop tour of the issues of consent and capacity for children and young people. So Flora, why is this an important topic?

I think children and young people are obviously a key group that providers will be working with. And I think the really key thing to remember is that they are not just small adults. So as we'll talk about today, there are different ways that decisions are made around care and treatment, and it's really important to be alive to those and not just assume that essentially the same rules apply as people will be familiar with when they're working with adult patients.

Hmm.

And I think a really key thing is that it's not just that doctor and patient dynamic that maybe people are more used to, but you've got almost a third entity in there in the form of the patient's parents usually. So, you know, you might have that they're consenting, they might not be, but it's more of a sort of three way conversation than that more sort of one-to-one relationship.

Exactly. And I think, for that reason, it can get quite complex.

Yeah. So as you say, I think something that's really important to focus on is what are the key terms, what do we need to be aware of and where are the key areas where we see issues arise? And obviously it's good start at the beginning. And I think the real starting point of so much of this area, and probably the bit that most people will have heard bandied around as a term is talking about Gillick. So what does that tell us about when a child can consent to their care and treatment, or when does it need to be their parent?

Um. Exactly Flora that’s right, Gillick is really where it all started, isn't it? And Just to put it into context in terms of the fact, Gillick was about a mother, Mrs. Gillick, challenging guidance which at that stage allowed doctors to prescribe contraception to girls under 16 without parental agreement. And this issue was very contentious and went up all the way through the courts to the House of Lords.

And the reason I think it comes to everyone's minds is because Lord Fraser, essentially in this case, set out a standard, for when. A child may or may not be able to make decisions for themselves in this context. And the question that he asked himself was, does that child have sufficient intellectual and emotional maturity to understand and weigh their options?

So not just simply intellectual maturity, not only emotional maturity, but both. And what was it required to do? Well, the child must be able to understand and weigh their options, so again, not referable to a child's age. Not referable to any particular feature of them, but as a holistic impression.

If a doctor considered a child met that standard Lord Fraser’s, judgment confirms that well, in this context, yes. Then that child has the ability to make decisions about their treatment in this context. That was revolutionary at the time, but actually when we think about it now, perhaps doesn't seem so because what it seems to reflect, I think what we would commonly understand now is a view of children as gradually evolving humans. They don't simply go from child to adult, right? They're going from, you know, through a number of different processes and, and step by step by step gaining more and more abilities. And so, this way of analysing their ability to make decisions reflected that.

And I think what you say about that being a kind of gradual process of development is really key as well, because that is reflected in how. I think when people are working in practice, they see this, that it might be that, you know, competence to make these decisions, it's going to be treatment specific. So it might be that you have, for example, a 12-year-old who can consent to a blood test, but you wouldn't think that they are competent to consent, to open heart surgery or something very complex with, you know, high level of information needing to understand about risks, benefits, all that sort of thing. So I think that kind of gradual process is really, really key to think about.

Yes and I think, you know, coming back to the question that you were asking about, how does parental responsibility fit into that is it's really, it's your fail safe. So the default is if a child under 16, is not Gillick competent, then their parent can consent. And by parent I mean a holder of parental responsibility, which is something we'll come on to later. But it exists as, as that, you know, essentially the catchall to make sure that decisions can be taken by someone able to take those decisions, but equally empowers the child. So if they are assessed as skill competent, then they're able to make, you know, the relevant decisions themselves.

So, Gillick was, you know, helpful in that sense because what it did is, is it gave autonomy to children, but within the protective context of parental responsibility.

And I think that's a really important, uh, point that you make there in terms of that default, because it's not the same all the way through, is it?

When we hit that 16 point, that's that really kind of key before and after stage because when we hit those 16 year olds, and I think that's why. Again, like how we said that children are not just mini adults, all under eighteens are not dealt with in the same way, as well as, you know, anyone who has ever met anyone under the age of 18 will know there's huge differences in those kind of skills as we go through.

So when we hit that point of 16, what comes into the fray is obviously the Mental Capacity Act, which, many people will have come across hugely important piece of legislation in this area. And when we think about that default. It flips, doesn't it almost that when you hit 16, that 16 and 17-year-old patient, they are the default consenter. So unless you assess that they lack capacity, they are going to be the person that consents rather than the person with parental responsibility. Like what you were saying with that being the default position for the under sixteens.

And many people I'm sure will be familiar with the capacity test, that the mental capacity outsets out. It's a really commonly discussed thing, but it's important to just remind ourselves of that. The test is about are they able to understand, retain, use, and weigh information relevant to a decision, and can they communicate that decision? And if the answer to any of those criteria is no, is that because of an impairment in the functioning of their mind or brain?

Exactly. And I think. To bring it all together then and to pick up on something you said a second ago, there really are almost three categories here, aren't there? You have your under sixteens, where you are talking about competence rather than capacity, and where you have that protective network of parental responsibility sort of sitting underneath that where you need it.

Then you have the 16 to 17 year olds where you don't talk about competence anymore, and you're talking about capacity and you're operating within the framework of the Mental Capacity Act. But parental responsibility still exists. So you do have some, you know, protection still there, and then moving then to then to the over eighteens.

The adult situation and, and I know many parents, um, myself included, find it sometimes hard to appreciate that your17 and 364 day year old child is not the same as your 18-year-old child, but for the purposes of the law. Your PR is gone.

So, whether or not we like it, certainly at that stage we're operating fully. Under the Mental Capacity Act framework and being aware, you know, at all times when you're dealing with children, young people and young adults of that kind of almost three stage process will hopefully give people a good guideline on kind of where to start thinking about these, these complex issues.

Yeah, and as you say, it's always, it's that looking ahead almost, I think particularly when we're working with clinicians who are. Dealing with patients, particularly in that kind of 15, 16, 17, you always need to sort of keep one eye on the future in terms of the frameworks you're working under can change really quickly and it can change, as you say, overnight. It's that binary point when they hit 18, so it's important to kind of keep that, keep that in mind.

Exactly. And, coming back to, the point that I sort of made earlier is when we're talking about parental responsibility, sort of in this context and more generally, well, what do we mean by that? What do we mean by a parent?

Yeah. This is a huge, a huge thing to keep in mind when working in this area. It's, you know, as we, as we've done so far, the term parent is used a lot and I think often we don't think about what really that means in law. And one of our favourite phrases that we like to use is saying that not all people with parental responsibility are parents and not all parents have parental responsibility.

And you know, there's a huge amount of detail that we could go into about circumstances where people do have parental responsibility, circumstances where they don't. But I think what that's really getting at is that it's not always as straightforward as you think, and it's really, really important that you make sure that the person you are seeking consent from is someone that has parental responsibility.

And you know, sometimes it won't be an issue, but sometimes it will. And it's really important that you. Know about what the criteria are for someone to have parental responsibility and whether this person in front of you does or doesn't, because that's really the important bit in are they someone who is legally able to make the decision that you are asking them to make.

Completely. And I think that brings us really nicely onto some of the common issues that we face, certainly when we speak to providers and to clinicians. And, and that is, you know, these common issues around parental responsibilities and how you deal with some of these risk areas, for example, where you've got a surrogacy arrangement, where you've got a lack of clarity as to whether a dad of a new-born baby has PR, whether you know there is a local authority that has a care order.

You know, all these situations are not uniformly straightforward and, if you're not alive to the question, can sometimes, you know, pass you by and get you into a bit of, a bit of a pickle later down the line.

I think that's so true, and I think it's also important to think about something we've been talking a lot about even just now, is about what can someone consent to in terms of what are we proactively asking? Where's the positive scope of utilizing parental responsibility? But I think something that's also important to bear in mind is about that there are limits on that. It's not a, it's not an unending resource.

Exactly and it, it's not sort of that ability to consent to all things in all situations. It, it itself has its own, you know, limits. And one of the more obvious and hard-edged ones is, you know, a parent of a 16 to 17-year-old can't consent to something that would amount to a deprivation of liberty for example. But that's just the cases that we know of rather than the cases that haven't been litigated.

So again, worth sort of keeping one eye to that, certainly on a day-to-day basis where you are looking at, you know, those really serious treatment decisions, for example.

So I suppose the other common area, of issues that we certainly see, is disagreement. Where there is disagreement between, you know any of the two or all three of that sort of tripartite relationship of decision makers, the child, the parent, and the clinical team. And I think we could probably do a whole episode just on this Flora.

Yeah, absolutely. It's such a complicated area where issues can crop up because they can take so many forms.

Sometimes it crosses into those issues about limits of PR or who has PR, but then it can be all sorts of things. So, you know, is the child Gillick competent? Is there a disagreement between the child and their parents? Or if you have two people with parental responsibility, is there a disagreement between either or both of them and the clinical team?

You know, we talk a lot about seeking consent and it's well known that legally you only need the consent of one person with parental responsibility for a treatment decision. But that's not withstanding where there's an objection and I think that's the thing that's really important to be alive to is, is someone within that sort of triangle of, you know, parents, clinicians, child. Is someone in there objecting? Is someone saying, no, I don't agree with this proposal. I don't want this treatment plan to happen, for example, and that. Is where these issues can get really complicated.

And obviously you mentioned serious treatment decisions earlier. They're obviously one area that's very common to give rise to such disagreements.

But I think the, as you say, we could do hours and hours about just this issue, but I think the most important thing to take away now is, escalate early. These are, really complicated issues. And there's also a lot that can be done to try and support decision making, support clinicians in this area to try and avoid these things getting to a level where, for example, court intervention is required, so be alive to that risk of, disagreement, if you think, you know, there's a sense that objections are coming to the front and seek help with that early.

Yeah, I would completely echo that. And certainly, where we've been able to do that stitch in time. I know that it's been often possible for things to be resolved by agreement.

Absolutely. Even sometimes the things you really don't expect. And I think that's, you know people, even just the sort of phrase, disputes in treatment for children sounds scary and intimidating, and I think it's obviously a very daunting prospect to clinical teams sometimes, but sometimes the ones you have the least hope that you might be able to resolve that dispute. There's still been cases, I know we've both worked on where that has been possible.

Yes

So it's never, it's never too early to start that conversation about what we can try and do to avoid that happening. And also just given as I think we've even just touched upon in this, in this podcast, the complexity of this area and the law around it, there's always, it's always worth if there's uncertainty getting, getting some advice on that.#

Absolutely and thanks Flora for speaking with me and kind of picking up on these highlights from our recent webinar. And if any listeners are interested in more detail on this subject, uh, as mentioned, flora and I have done a much more in-depth webinar on this exact topic, which is available on the Hempsons' YouTube channel.

So, please do give it a watch, if you're interested and otherwise, thank you so much for listening.

Thank you.