Children's Competence to Consent to Medical, Surgical and Dental Treatment: Partner's in Healthcare?

Abstract

Commonly it is believed that children need to be 16 years old before they have the right to give, or refuse, consent to medical, surgical or dental treatment. This is an understandable misconception in New Zealand, as the Care of Children Act 2004 provides for children of that age to consent, but is silent on the rights of those under 16 years. Yet, in New Zealand, the English House of Lords case of Gillick v West Norfolk and Wisbech Area Health Authority and another, which established that competent children under 16 years may give consent, has been followed. Given this uncertainty in the law, this thesis examined: (i) what are children’s, parents’ and health professionals’ experiences of the consent processes; (ii) what factors influence children’s competence; (iii) how do health professionals assess children’s competence and what criteria, if any, do they use; and (iv) how does the law in New Zealand influence the consent processes for children seeking healthcare, and are any changes required to the law, legal policy and health professionals’ practices?

This qualitative research focused on the competence of children under the age of 16 years and the consent processes within and across different healthcare environments – hospitals, private practices, schools and community youth services. It included 59 participants having experience of medicine, dentistry and surgery, comprising of: seven children, six parents, seven hospital doctors, six GPs, three hospital dentists, three private dentists, two dental therapists, eight nurses and 17 stakeholders.

The research found that there are many interlinking factors influencing the development of children’s competence to participate in the consent processes for healthcare, relating to the physical environment in which health professionals consult; children’s internal characteristics; their relationships with parents and health professionals; and the support they receive. Intertwining to either promote or constrain children’s competence are factors such as children’s preferences, experience, maturity, attitudes, values, skills and health; parents’ and health professionals’ knowledge, skills and attitudes; and time, privacy, policies, guidance and law. Thus, when health professionals assess children’s competence they need to consider many factors. Although their processes are organic rather than formal, they all agreed that children’s competence can be measured through the level of children’s interest/independence in their health; their ability to engage with them and explain details about their health; children’s intelligence and understanding; their ability to ask and answer questions; and their development and maturity. Age was found to be a misleading indicator of children’s competence. Nonetheless, health professionals’ practices in taking consent for children under the age of 16 years is inconsistent, with some relying upon parental consent, rather than trusting the consent of competent children. As a result children’s competence may not be promoted or respected, and children may fail on occasions to receive necessary and desired health treatment.

Recommendations from this study include reviewing professional policies and guidance to ensure greater consistency; developing a “toolkit” for health professionals to use to assess children’s competence; introducing courses/seminars for children, parents and health professionals to raise awareness and knowledge of the law; and amending or introducing a new law to better embed the rights of competent children to consent, or refuse, treatment.