Decisions regarding medical treatment of a child

Posted on

The recent Junior Doctors strikes made me consider the legal problems that can arise for medical professionals when it comes to deciding what medical treatment a child should receive and the balancing act that doctors sometimes have to play.

Provided the patient is deemed competent and can understand the implications of any decisions they will be making, they are entitled to decide about the treatment they receive, even if they are a child.

Where a child is not old enough or mature enough to decide in their own right, then the decision as to any medical treatment they receive will fall to those individuals who have parental responsibility for that child.

In normal circumstances, it will just be the parents of the child who have parental responsibility. However, depending on the child's situation, other individuals (such as a testamentary guardian, a Court appointed guardian, the adoptive parents of a child or an individual with whom the child lives pursuant to a Child Arrangements Order) may also have parental responsibility.

Parental responsibility refers to the rights, duties, powers and responsibilities certain individuals have over a child. This includes the responsibility to consent to medical treatment on behalf of a child provided that this is in the best interests of the child in question.

However, potential conflicts and legal problems occur when the following situations arise:

  • The child is competent to make their own decisions but refuses treatment and, by doing this, it may lead to their death or severe permanent injury.
  • The child is competent to make their own decision and refuses treatment but the individuals with parental responsibility for the child consent to such treatment being carried out.
  • The child is not competent to make their own decisions but the individuals with parental responsibility do not agree as to the specific course of medical treatment being recommended for the child.
  • The individuals with parental responsibility agree on a course of action but this contradicts with the advice being provided by the doctors and is not felt that this would be in the best interests of the child.

First and foremost for medical professionals, their responsibility is to act in the best interests of their patient.   For obvious reasons, the above examples create a situation where the medical professional may be prevented from doing their job by the parents or by the child themselves.

Where there is a disagreement between the individuals but there is sufficient time, an application can be made to the Court of Protection who will make a decision as to whether or not the child should undergo a particular medical treatment.

However, in an emergency situation where treatment is vital and waiting for a decision would place the child at risk, treatment can proceed without consent being first obtained but this in itself may cause further problems down the line with potential legal claims being brought against the medical professionals if they did not make the right decision, and ironically, possibly even if they did.

I am not intending to make a comment on the rights or wrongs of the recent doctors' strike but, as the above issue alone illustrates, the job all doctors do at the best of times is a difficult one that involves life and death decisions being made on a daily basis; and I for one have respect for anyone prepared to take on such responsibility.

If you have any queries regarding either a family or a Court of Protection issue, Blake Morgan has a number of specialists who can help. Please feel free to contact us to discuss your matter in more detail.