Children under 16 can give their own consent if the medical practitioner attending the child considers the child capable of understanding the nature and possible consequences of the procedure or treatment. If the child is judged capable, the practitioner must seek consent of the child rather than that of the parent.
Where a child is judged incapable of consenting, consent should normally be obtained from a person with parental responsibilities and rights, or one of the other categories of person listed.
It should be noted that, if a child is capable of giving his or her own consent, the parents lose any right they may have had to consent on the child’s behalf. This does not mean that parents must always be excluded from the discussions. Unless there are issues about the child’s confidentiality, it would be reasonable to involve parents in helping the child to reach a decision. This would be consistent with the philosophy of partnership with parents which underlies the Children (Scotland) Act 1995. However if the child is judged competent, it is the child’s consent alone that is legally effective.
Subject to any court order restricting parental rights, those who can give consent on behalf of an incapable child are:
The mother whether married to the father or not.
The child’s natural father, if married to the mother
The child’s natural father, even if divorced from the mother
An unmarried father who has entered and registered a formal Parental Responsibilities and Parental Rights Agreement with the mother. This is a new agreement introduced by the 1995 Act. Those holding rights under such an Agreement will have been issued with an ‘extract’ from the Books of the Council and Session where it is registered.
A legal guardian nominated in writing by a parent before the parent’s death. This appointment comes into effect automatically on the death of the parent.
A person holding a Residence Order in relation to the child, or any other court order giving them the right to consent on the child’s behalf.
A person aged 16 or over who has care or control of a child, unless it is within their knowledge that a parent would refuse consent. The right to consent under this provision is limited to what is ‘reasonable in all the circumstances to safeguard the child’s heath, development and welfare’. It is a protective, fallback provision and could not be used to authorise, for example, organ donation, non-therapeutic cosmetic surgery or involvement in research for the benefit of others. This provision could apply to relatives or friends with whom the child is living whether permanently or temporarily. It could also include childminders and baby-sitters. It may be particularly useful with regard to foster carers. Children may be in foster care for a variety of reasons. In most cases, the child’s natural parents will retain parental responsibility subject to any orders made by the court or children’s hearing. This provision will allow medical practitioners to take the foster carer’s consent to the limited kinds of treatment described above, without requiring too much enquiry into the child’s legal status. This provision will allow medical practitioners to take the foster carer’s consent to the limited kinds of treatment described above, without requiring too much enquiry into the child’s legal status. This provision does not apply to teachers or other whose care or control is restricted to the school setting.
A person to whom the parent or other person with parental responsibilities and rights has delegated the right to consent to medical procedures or treatment in relation to the child. There are no formal requirements in relation to this delegation.