Ethics

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Consent and refusal for non-therapeutic male circumcision

 

Who needs to consent to a child or young person undergoing NTMC?

When there is agreement that NTMC (non-therapeutic male circumcision) is in a child’s best interests (see our guidance on best interests), consent to carry out the procedure may come from:

  • A competent child or young person
  • When the child lacks competence, all parents, carers or agencies with parental responsibility
  • A court
  • An appointed proxy (in Scotland where the patient is over 16 and unable to make decisions for himself) 

There may be occasions when a 16 or 17-year-old, who would usually be presumed to be competent to make decisions, may lack capacity or may become incapacitated. In these circumstances, doctors should seek legal advice. 

 

How should I take the views of the child into account?

A competent child may decide for himself whether to undergo NTMC. When assessing competence to decide, doctors should be aware that parents can exert great influence on their child’s view of a procedure. That is not to say that decisions made with advice from parents are necessarily in doubt, but that it is important that the decision is the child’s own independent choice. 

Where a child lacks competence or capacity and can express a view, the child should be involved in decisions about whether he should be circumcised. His wishes and feelings should be taken into account. 

In both circumstances, the BMA cannot envisage a situation in which it is ethically acceptable to circumcise a child or young person who refuses the procedure, irrespective of the parents’ wishes.

Often, surgery for non-therapeutic reasons is deferred until a child has sufficient maturity and understanding to participate in the decision about what happens to his body. In some cases, however, a doctor may make a professional judgement that the overall social, psychological, emotional and/or clinical benefits of a particular child undergoing NTMC do not allow for the procedure to be deferred until this time. For example, in some religions there are criteria as to when NTMC should be undertaken (although in some circumstances NTMC may be deferred or precluded due to an underlying medical condition). 

Legal case – recognition of deferment in some circumstances

In a case in which a Muslim father wanted his sons to be circumcised: 

"I am simply deferring that decision … [until] each of the boys themselves will make their individual choices once they have the maturity and insight to appreciate the consequences and longer term effects of the decisions which they reach. Part of that consideration will be any increase in the risks of surgery by the time they have reached puberty. I do not regard the delay between now and that point in time significantly to increase those risks. The safest point in time to have carried out the procedure… has long since passed."

Mrs Justice Roberts at 143, Re L And B [2016] EWHC 849 (Fam) 

 

Can I undertake NTMC with just one parent’s consent?

The BMA and GMC have long recommended that consent should be sought from both parents for NTMC. Although parents who have parental responsibility are usually allowed to take medical decisions for their children alone, non-therapeutic circumcision has been described by the courts as an ‘important and irreversible’ decision that should not be taken against the wishes of a parent.

It follows that where a child has two parents with parental responsibility, doctors considering circumcising a child must satisfy themselves that both have the necessary parental authority and have given valid consent. Where a child has only one parent, obviously that person can give their consent alone.

GMC guidance – consent for circumcision 

'20. If the patient is a child, you must proceed on the basis of the best interests of the child and with consent. Assessing best interests will include the child’s and/or the parents’ cultural, religious or other beliefs and values. You should get the child's consent if they have the maturity and understanding to give it. If not, you should get consent from all those with parental responsibility. If you cannot get consent for a procedure, for example, because the parents cannot agree and disputes cannot be resolved informally, you should:

  • inform the child’s parents that you cannot provide the service unless you have authorisation from the court 
  • advise the child’s parents to seek legal advice on applying to the court.’

GMC, Personal beliefs and medical practice

If a child presents with only one parent, it is essential that efforts are made to contact the other parent for consent. 

Legal case highlighting the need for valid consent

Following the circumcision of a baby boy by a doctor without the mother’s consent in 2013, the case was reported to social services, the police and the GMC.

The boy’s paternal grandmother had taken the boy for NTMC. The doctor who performed the circumcision reported that he believed the boy’s mother had consented.

At the time of writing, the CPS (Crown Prosecution Service) had decided not to prosecute the doctor but the doctor’s actions were being investigated by the MPTS (Medical Practitioners Tribunal Service). The possibility of further legal action against the doctor was also reported.

Of note for doctors, in the CPS letter outlining its decision not to prosecute, the following points were made:

  • if the doctor had performed NTMC knowing the mother did not consent, his actions may have amounted to an assault;
  • the doctor may have failed in his professional obligations to discuss the issue of consent with the mother;
  • but ‘that in itself is not sufficient for there to be a criminal prosecution’.    

(Lowbridge C, 'No-consent' circumcision doctor will not be prosecuted, BBC Online, 10 November 2017)

 

What if one parent does not want NTMC to take place?

If parents disagree about having their child circumcised, the parent seeking circumcision could seek a court order authorising the procedure, which would make it lawful, although doctors are advised to consider carefully whether circumcising against the wishes of one parent would be in the child’s best interests (see our guidance on disputes). 

 

To ensure valid consent, what information should I give families about the health risks and benefits of NTMC?

Consent for any procedure is valid only if the person or people giving consent understand the nature, implications and risks of the procedure. To promote such an understanding of circumcision, parents and children should be provided with up-to-date written information about the risks and alternatives. The British Association of Paediatric Surgeons has produced a patient leaflet for parents – see resources below (see also our guidance on health risks and benefits).

 

Does NTMC require written consent?

In the case of NTMC it is advisable to obtain written consent. Doctors should ask parents to confirm their consent in writing by signing a consent form. This is simply a document showing that a discussion has taken place and consent has been provided, and does not itself mean that consent is valid.

Next page - Disputes

 

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