Whether a child can give their own consent to dental treatment is determined by their competency as well as age. When children lack competency, the law allows individuals with parental responsibility to provide consent until children can make their own decisions.
Although it is a legal and ethical obligation to obtain valid consent for treatment, many dental professionals are not fully aware of the legislation around these issues and may need further clarification and legal advice, especially in complex situations such as a dispute about treatment between parents who are separated or divorced. In all cases, the overriding consideration must be the best interests of the child.
Consent in children
The principles of consent are set out by the General Dental Council in Standards for the dental team. Dental professionals must obtain and document valid consent, which is voluntary and informed, before starting treatment and at all stages of the patient’s care through on-going discussions.
Before treating a child, it is essential to consider whether they have the capacity to give consent:
Young people aged 16 or 17 years can give consent and are presumed, like adults, to have the capacity to make decisions about their treatment unless evidence shows otherwise.
If a child aged 16 or 17 years does not have the capacity to decide, treatment that is in their best interests may proceed with consent from someone with parental responsibility (and if necessary, without parental consent). However, legal advice should be sought if there is any doubt.
Children under the age of 16 years can consent to treatment if they are judged to be Gillick competent. This means they have sufficient maturity, intelligence, and competence to fully understand the treatment information; they should also be able to retain and weigh that information to make and communicate their decision. Competence must be assessed for each individual child as appropriate for their age and according to the procedure since the capacity to consent may differ depending on the child’s health and development as well as the complexity of treatment and its potential risks.
Note that written consent is required when treatment involves conscious sedation or general anaesthetic, and in these cases, it is often appropriate for both parents to be involved in the consent process.
Where a child under 16 years is not competent to give consent, a person with ‘parental responsibility’ can consent on their behalf, if the dental treatment is in the best interests of the patient. Even so, children should be involved in decisions about their care as much as possible.
In an emergency, if waiting for parental consent would put a child at risk, treatment may be given in the child’s best interests, but limited to what is reasonably required to deal with that emergency.
Who has parental responsibility?
When a child cannot give their own consent, it is important to clarify who holds parental responsibility. The definition of ‘parental responsibility’ is set out in law, with subtle differences between UK nations: Children Act 1989 (England and Wales), Children (Scotland) Act 1995, The Children (Northern Ireland) Order 1995.
Parental responsibility could be held by:
- The mother – all biological mothers acquire parental responsibility at birth.
- The father – if named on the birth certificate, married to the mother, or given parental responsibility via the court.
- Adoptive parents once the process of adoption is complete.
- The child’s legally appointed guardian.
- An individual with a residence order concerning the child.
- A local authority designated to care for the child.
- A local authority or individual with an emergency protection order for the child.
Since there can be difficulty establishing who has parental responsibility, it is wise to ask for written confirmation of this when a new patient under the age of 16 is registered and with any change in circumstances. Note that parents cannot relinquish their parental responsibility, even if divorced or separated, although a court may remove or restrict parental responsibility.
Dilemmas that may arise
The issues of consent and parental responsibility can lead to ethical dilemmas for dental professionals, particularly where there is disagreement between the involved individuals. It will help if providers have knowledge of the legislation and tactfully communicate with parents and carers about who is expected to attend appointments with the child.
The following sections highlight some potential dilemmas and points to consider in each case. Further guidance on balancing competing interests to obtain valid consent to treatment is available from the General Medical Council. We encourage members to seek legal advice from Dental Defence Society if in doubt.
Where a child consents and their parent disagrees
If a competent child gives consent to treatment, parents cannot override this if a dental professional considers the treatment to be in the child’s best interests. However, in some cases, a court can override the consent, if that is judged to be in the child’s best interests.
It is good practice to encourage competent children to involve those with parental responsibility in important decisions about their treatment, unless it would not be in their best interests. Remember that where a child has capacity, their consent must be sought before sharing their medical information with those who hold parental responsibility.
Where a competent child or a parent refuses treatment
If a competent child refuses treatment that would be in their best interests, dental professionals should usually abide by the child’s decision even if their parent supports the treatment. In such cases, they should document all discussions as they seek an agreement.
In some situations, the child’s refusal can be overridden by the courts or those with parental responsibility, but legal advice should be sought. The potential harm of overriding the child’s wishes must be weighed against the benefits of treatment, and other professionals may need to be involved.
If a parent refuses the treatment of a child who lacks capacity, it may be helpful to request a second clinical opinion. A parents’ refusal can be overruled by the courts if the treatment is in the best interests of the child, so dental professionals should take legal advice if necessary.
Where consent is disputed by parents who are separated or divorced
Only one person with parental responsibility is required to give consent for treatment of a child. Despite this, if two people with parental responsibility disagree over consent, it is best to pursue an agreement before treatment. If the parents are separated or divorced, communication may be more difficult, so caution is required.
If no agreement can be reached, legal advice should be sought. A second clinical opinion may help to resolve the situation, or the courts may be involved to decide in the patient’s best interest.
If you need dento-legal support regarding the treatment of children, and issues of consent and parental responsibility, please do not hesitate to contact us at Dental Defence Society.