When do disputes occur?
Ideally, medical decisions are made in partnership between the patient, the family, and the health team, with the parental role gradually fading as the child develops in maturity.
Disputes arise, however, where there is a difference of opinion as to what is in a child’s or young person’s best interests. For example, there could be a disagreement between a competent young person and their parents or the courts; the parents disagree with each other; or the family may oppose the treatment plan suggested by the health team.
How should a dispute be approached?
Many disputes arise because of poor communication and all efforts should be made to avoid this. An independent second opinion may be helpful in resolving some disagreements but ultimately, some may have to be resolved by the courts. Health professionals must always focus on the overall best interests of the child or young person.
When should legal advice be sought?
Legal advice should be sought swiftly when:
- agreement over how to proceed cannot be reached (for example where consent is refused by the holders of parental responsibility)
- a competent young person refuses an intervention or invasive treatment that the health care team considers necessary
- administering treatment against the wishes of a competent young person would require the use of restraint or force
- it is not clear whether the people with parental responsibility are acting in the best interests of the child
- the proposed care is beyond the scope of parental consent because it is controversial or non-therapeutic (for example sterilisation, organ donation and circumcision if parents disagree)
- the courts have stated that they need to review a particular decision
- the treatment requires detention outwith the provisions of mental health legislation
- the people with parental responsibility lack the competence to make the decision
- the child is a ward of court and the proposed step is important; or
- the proposed course of action might breach a person’s human rights under the Human Rights Act 1998.
If agreement cannot be reached in a reasonable period of time, which will depend on the nature and likely course of the patient’s condition, lawyers may advise that it is necessary to seek a court order. Parents, and where appropriate the patient, should be informed and told how to seek legal representation.
How can involving the courts help?
Going to court can be distressing for those concerned and it is essential that ongoing support is provided for the child, the parents, other relatives and carers, and the health care team. There are great benefits, however, in a legal system that can give rulings very quickly when necessary. The law can provide a protective role for both patients and the health care team who treat them and where there is disagreement that cannot be resolved.
Can the courts insist on treatment?
In England, Wales, and Northern Ireland the courts have the power to give consent to treatment on behalf of competent and incompetent patients aged under 18. A court can override a child’s refusal or parents’ refusal of a particular treatment if there is evidence that it would be in the child or young person’s best interests.
In Scotland the courts have the same powers to give consent to treatment on behalf of people aged under 16 when the child is not competent to give valid consent for himself or herself. It is unclear whether a Scottish court may override the decision of a child if the medical practitioner believes the child is competent, although it is thought that this is unlikely.
The courts cannot, however, require doctors to treat contrary to their professional judgment.
- General Medical Council. 0-18 years: guidance for all doctors. More information
- BMA. The law and ethics of male circumcision: guidance for doctors. More information
Card 6: Disputes (PDF)