Children’s 'best interests' treatment: disagreements
Parental responsibility includes the right to consent to medical treatment on behalf of the child in order that the parent may exercise their duty of care towards the child.
If a child is capable of giving consent, they have a right to be consulted on decisions about their care. However, capacity is decision-specific: a child may be competent to decide some aspects of his care but not others. Typically, consent from only one person is needed for the treatment to be lawful.
Disagreements between the parents and the doctors
Parental responsibility includes the right to refuse consent to treatment. However, a doctor is not obliged to uphold the parents’ wishes if he believes they are contrary to the child’s best interests. First, the parent and doctor should try and resolve the issue by discussion and mutual agreement. If this is not successful, it may be necessary to seek the court’s view. In the interim period, only emergency treatment that is essential to preserve life or prevent serious deterioration should be provided.
Guidance from the British Medical Association’s (2009) summarises the court’s approach:
“When asked to decide about treatment, the courts recognise their duty to protect children and have almost invariably said that serious treatment should be given against the wishes of parents where there is a good chance of it succeeding or providing significant benefit to the child. The courts are required, in their decision making, to have regard to the rights given force by the Human Rights Act, and to have the child's welfare as the paramount consideration”.
By way of example, a court would be very likely to authorise a doctor to give a child a live saving blood transfusion even though the parents might object on religious grounds.
Perhaps more difficult are decisions concerning the withdrawal of medical care or of some elements of medical care. Here the courts are required to weigh up the burdens of continuing invasive medical treatment against the ability of the patient to gain a benefit from it.
How we can help?
We have significant experience of advising parents in these difficult situations.
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