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News / June 25, 2020

Child patients – who can consent?

by Martin Foster

Martin Foster, a dentolegal consultant at Dental Protection, discusses the conversations surrounding child patients and consent. 

Obtaining consent involves establishing whether the patient has sufficient understanding of the treatment options available in order to make an informed choice. This can be a challenging enough process with adults. But when the patient is a child, the situation can be complicated by questions over who exactly can consent.

Consent and the ‘child’ Section 3 of the Children Act 2001 states a child is any person up to age 18. Elsewhere the law states, in relation to consent to treatment, anyone over the age of 16 can give consent on their own account (section 23 of the Non-Fatal Offences Against the Person Act, 1997). The position is not clear on whether 16 year olds have the corresponding ‘adult’ right to refuse treatment.

However, this has limited practical effect. After all, if a 16 year old is unwilling to undergo treatment, it would be impossible to force them. At present, a child under 16 is incapable in law of giving or withholding consent to treatment. This is irrespective of maturity and understanding.

The concept of ‘Gillick competence’ – which clinicians familiar with practice in the UK may be aware of – has not been established by the courts in Ireland. Under Article 41 of the Constitution, decisions relating to the family, rest with the family. Dentists must obtain consent from an adult with ‘parental responsibility’ or ‘guardianship’ – for the child.

It is generally the case that parental responsibility/guardianship is exercised by parents, but not always. If there is doubt over who can consent for the child, consideration should be given to deferring treatment until clarification.

Who can consent for a child patient?

The birth mother will have legal guardianship from the birth of the child.

The situation with fathers, even when named on the birth certificate, is subject to more conditions. But the current rules reflect common family arrangements. A father will have guardianship if married to the mother before or after the birth of the child. An unmarried father can be appointed as a ‘joint guardian’ by the court, by joint statutory declaration or alternatively. If has lived with the child’s mother for 12 consecutive months after 18/01/2016 (including at least three months with mother and child following the birth) he will be recognised as having legal guardianship without the need for formal appointment by a court (Children and Family Relationships Act 2015).

For both married and unmarried fathers, guardianship once held is not extinguished by the subsequent separation or divorce of the parents – unless this is directed by a court order. There are, of course, other family situations. For example, a child may have two mothers or two fathers. There may be co-parenting arrangements involving others who care for the child. Or there could be a step-parent who is the partner of a parent with guardianship.

In such circumstances, the constant factor is that only the ‘birth mother’ can be taken for granted as holding guardianship and being able to consent. It is necessary to clarify the situation with any of the others. For ‘non-parents’, guardianship can come from a court order granting this or by being appointed after the death of parents. Adoption is another route that results in the adoptive parents assuming all the rights and responsibilities of the biological parents.

Foster care

There are approximately 6,000 children in foster care in Ireland. Placement can arise voluntarily when a family member asks for assistance from Tusla – the Child and Family Agency – or when a court decides it is in the best interests of the child to make a ‘Care Order’. Foster care can be short term – a period of weeks or months before returning to the natural family. It can also be long term, perhaps even until adulthood. Whenever possible, children will be placed with a suitable relative.

At present, approximately one-quarter of children in care will be with relatives. Foster carers – or relatives – who have had care of the child for a continuous period of at least five years, can apply for a court order that will give broadly the same rights as parents have to make decisions about their children (Child Care (Amendment) Act 2007, section 4).

Without such an order, foster parents can consent to urgent treatment. They are encouraged to take children for routine health checks but they do not have guardianship. Therefore, for non-urgent treatment, consent should be sought from a holder of guardianship. Where the child is the subject of a ‘Care Order’, the HSE (Child and Family Service Division) can give consent to treatment.

Dental emergencies

Emergencies may arise where the child needs urgent treatment. However, it may not be possible to contact anyone with the right to give consent for that treatment. In such cases, the approach should be to provide care only to the extent necessary to address the immediate problem safely and ensure the patient is out of pain.

The least invasive approach should be taken to stabilise the situation in order to keep options open for definitive treatment at a later point. If possible, share the decision with a colleague or others with an interest in the child’s care. It is important to remember safety.

Sometimes, in the light of addressing issues around consent, the all-important need for a current medical history is overlooked. Whether or not the adult accompanying the child can consent, dentists need to be confident they can obtain an accurate medical history in order to ensure patient safety.

This story was taken from June’s issue of Irish Dentistry.