Whose consent?

Where a child requires medical treatment, the old rule was that the parents could consent on his or her behalf. Now, it seems the old rule is also the new rule.

For the last 20 years or so, it has been accepted that a parent can consent to medical treatment for a child. This position is the result of Nielsen v Denmark (1989) 11 EHRR 175 and it will obtain, even if the child is competent and has refused consent. In Nielsen, a boy who did not want to go into a closed psychiatric ward was admitted there with the consent of his mother.

Late last year, the Department of Health cast doubt upon this position, at least in the case of competent children. In the revised Code of Practice to the Mental Health Act 1983, it noted that Nielsen was decided before the Human Rights Act 1998 came into effect and “the trend in recent cases is to reflect greater autonomy for under 18s in law”, and concluded: “it is not wise to rely on the consent of a person with parental responsibility to treat a young person who refuses in these circumstances.” (Department of Health, 2008, Mental Health Act 1983 Code of Practice, paragraphs 36.33 and 36.43)

This conclusion caused dismay among practitioners in child and adolescent mental health. More recently, however, and despite what the Department of Health said, the House of Lords has suggested that Nielsen remains good law.

In Austin v Commissioner of Police for the Metropolis [2009] UKHL 5, their Lordships found, perhaps contentiously, that a woman who took part in the May Day protests of 2001 had not been deprived of liberty when, along with several thousand other people, she was corralled into Oxford Circus by the police and detained there for a number of hours. They said that the purpose of these measures – crowd control – was a permissible one and “in the interests of the community”, so that Article 5 of the ECHR, which enshrines the right to liberty, wasn’t even engaged.

In support of their contention that the purpose of the measures was relevant to the question of whether Article 5 was engaged, their Lordships examined Nielsen and found it to be directly relevant to the case before them. They went as far as to cite with approval the following passage of the judgment in that case: “Hospitalisation was decided upon by [the mother] in accordance with expert medical advice. It must be possible for a child like the applicant to be admitted to hospital at the request of the holder of parental rights”.

If, as seems likely, Nielsen remains – or has again become – good law, the concerns of the Department of Health are baseless and any child, even an unwilling one, may be treated with the consent of his parent.