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Children's Rights

Document Cited authorities 24 Cited in Related
Vincent
AuthorSafda Mahmood/Julie Doughty
Pages165-171
12 Children’s Rights

The law affecting the rights of children includes the CA 1989, the UN Convention on the Rights of the Child (UNCRC) (ratified by the United Kingdom in 1991) and the Human Rights Act 1998 (in force in the United Kingdom from 2 October 2000), which incorporates the ECHR and its Protocols into UK law. Other legislation affords specific rights to children and families, for example in mental health, and is cited below where relevant.

Under section 22(4) of the Human Rights Act 1998, all proceedings brought by a public authority are subject to the ECHR, even where the alleged breach of these rights occurred before the coming into force of the Human Rights Act 1998.

12.1 To accept or refuse medical treatment

No adult or child competent to make their own medical decisions may be given medical treatment without their consent. Treatment without consent (save in emergencies) may incur liability for damages for assault, or constitute an offence in criminal law. Detention in hospital or any other place without consent could constitute an unlawful deprivation of liberty in breach of Article 5 of the ECHR.

It is important to make a clear distinction between two situations in which consent may be required. The first is where doctors seek to carry out diagnostic assessments which may be necessary before deciding on the best method of treatment, and/or medical, psychiatric or psychological treatments necessary to maintain the child’s health and welfare. The second category is where medical, psychiatric or psychological assessments are sought for purely forensic purposes and directed by the court.

Depending on the child’s age and other considerations, in special circumstances the courts may overrule a child’s refusal of necessary treatment, but the courts will be far less willing to overrule a child’s refusal of an assessment for forensic purposes.

The issue, therefore, is at what age can a child give valid consent?

166 Child Care and Protection: Law and Practice

12.1.1 Children aged over 16 (but under 18)

Under section 8 of the Family Law Reform Act 1969, at the age of 16, a young person gains the right to give informed consent to surgical, medical or dental treatment. Examinations or assessments must impliedly be included. The consent of the young person is as valid as that of an adult. A young person of any age with mental illness, disability or psychiatric disturbance may, however, be subject to the Mental Health Act 1983.

If a young person consents to recommended medical or dental treatment, therefore (even if his or her parents disagreed for some reason), the medical or dental practitioner would be protected from a claim for damages for trespass to the person.

However, if the young person refuses recommended treatment – although those with parental responsibility for the young person may give a valid consent which will have the effect of protecting the medical or dental practitioner from claims for damages for trespass to the person – it should be noted that as the age of the young person increases towards 18, his or her refusal and the reasons for it are important considerations for parents and the court.

In the event of a dispute about consent for medical treatment, the issue should be taken before the High Court, either under its inherent jurisdiction or under section 8 of the CA 1989 for a specific issue order. In the case of Re W (A Minor) (Consent to Medical Treatment) [1993] 1 FLR 1, the Court of Appeal gave consent for the...

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