This is a guest post by Alex Tiseo (@TiseoAlex97 on twitter), a PhD student at the University of East Anglia who is researching minors’ consent and refusal of medical treatment.
When the Government first announced its Covid vaccination programme, few thought it would eventually extend to children (those under 18 years old). Yet, in July, the Joint Committee on Vaccination and Immunisation (JCVI) said that 12-15-year-olds with underlying health problems or who live with immunosuppressed adults will be offered the jab. Now, the NHS has drawn up plans to begin vaccinating all 12-15-year-olds in the early weeks of September. These plans have been prepared even though the JCVI have remained cautious in recommending such a rollout. The Government thus far have followed the advice of the JCVI, but the chief medical officers (CMOs) for England, Scotland, Wales, and Northern Ireland have very recently recommended that all 12-15-year-olds should be offered a single dose of the Pfizer vaccine. It remains now for the Government to formally indicate whether it will follow the CMOs’ advice.
In the case of 16-17-year-olds, vaccines are being offered, but they are currently only offered one dose. The JCVI are cautious about recommending a second dose for this cohort because evidence has emerged that the second dose could cause the rare side effect of heart inflammation (myocarditis).
There have been many debates raging about Covid-19, but questions of vaccinating children have markedly divided society. Should children be offered the Covid jab? Can a child ever be competent enough to consent to the vaccine? Should a child have the authority to consent even when parents object? The debate on this topic has drawn fierce responses:
There is no straightforward or universally agreed answer to any such questions, which is unsurprising given the delicate legal, moral, and ethical arguments that encompass children’s consent and the role of the parent.
Against this backdrop, this post aims to clarify the law on children’s rights to consent to medical treatment (including, specifically, the Covid jab).
The Law: Gillick Competence
From the outset, it is constructive to clarify the distinction the law makes between the rights of 16-17-year-olds and of those under 16 in the context of consenting to medical treatment.
In the case of 16-17-year-olds, like adults, there is a rebuttable presumption that they are competent to consent to medical treatment:
‘The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.’ (Family Law Reform Act 1969, s. 8 (1)).
In contrast, no such presumption exists for under 16s. As such, if a child under 16 wishes to consent to medical treatment, they must satisfy the Gillick competence test, which emerged from the 1985 House of Lords decision in Gillick v West Norfolk and Wisbech Health Authority  AC 112. In this case, which concerned whether a child under 16 years old could lawfully consent to contraceptive advice and treatment (without the consent of the parents), Lord Scarman expressed that:
‘… as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.’ [paras 188-189].
In general, to satisfy the demands of the above competence test, the child will have to demonstrate a broad understanding of what the treatment involves, which includes an understanding of the treatment’s risks and benefits. To consent to contraceptive treatment specifically, the child will have to demonstrate not only a broad understanding of what is involved but also demonstrate an understanding of the wider emotional, moral, and social factors related to the treatment. Those who satisfy these demands are described as ‘Gillick competent’.
In Gillick, the issue was the prescription of contraception, but there is nothing in the speeches of judges to suggest that Gillick’s principle is limited to that one form of treatment. The case of R (on the application of Axon) v Secretary of State for Health  EWHC 37(Admin) has since confirmed that the scope of Gillick is not confined to contraceptive matters; instead, its competence principle applies to all forms of medical treatment.
The House of Lords did not endeavour to set a minimum age limit for valid consent. Hence, it will be a question of fact relative to the individual child seeking to consent to a particular course of medical treatment whether they have a sufficient understanding of what is involved to give a consent valid in law. The House of Lords emphasised that age limits are undesirable in this branch of law because:
‘If the law should impose upon the process of “growing up” fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change.’ [para 186 (Lord Scarman)].
The principle requiring no minimum age remains intact, though the recent case of Bell (R (Quincy Bell) and A v Tavistock and Portman NHS Trust, and others)  EWHC 3274 (Admin)) has unsettled this position (discussed below).
Can the parents decide instead of the child?
The House of Lords explained that parental rights to decide whether or not their child will have medical treatment ‘terminates’ once the child achieves Gillick competence. They viewed parental rights as a ‘dwindling concept’, emphasising that it is contrary to the ordinary experience of society that children remain under the complete control of their parents until they reach the age of adulthood. It is commonly accepted that parents relax their control as the child develops and encourage their children to become increasingly independent. The House of Lords did, however, readily acknowledge that the consent of parents should normally be asked where the child under 16 requires medical treatment. Therefore, the role of the parent in matters concerning the medical treatment of their child is not wholly redundant. The consent of parents can be used when their child does not have the capacity to consent (i.e. the child is not Gillick competent or is unconscious); when the child defers the decision to their parents; or when the child refuses medical treatment that is in their best interests.
According to Gillick,the hierarchy of valid consent can be summarised as follows:
- At the summit is the Gillick competent child’s consent. Parental consent runs concurrently here if the Gillick competent child asks their parents to consent on their behalf. Parental objection does not invalidate the Gillick competent child’s consent.
- If the Gillick competent child is refusing to consent, the law, as defined in Re R (A Minor) (Wardship: Consent to Treatment)  Fam 11and Re W (A Minor) (Medical Treatment: Court’s Jurisdiction)  Fam 64, provides that parents can override their child’s refusal if the child is refusing treatment that is in their best interests. I will discuss this more below.
- If the child is not Gillick competent or is unconscious, parents retain the right to consent to the child’s proposed course of treatment.
This is a simple explanation, and there are exceptions to some of these positions, but this hierarchy neatly illustrates the generally accepted approach that the law takes to children’s consent to medical treatment.
Did the Bell case change the law on Gillick competence?
The announcement that 12-15-year-olds will be offered the Covid jab has triggered discussions about the exact legal position in respect of adolescent consent to medical treatment, and there has been some understandable confusion amongst those involved in the debate. The decision in Gillick remains the gold standard for children’s consent to medical treatment. However, since the recent decision in Bell was handed down, a case that tested the ability of children to consent to puberty blockers (PBs), some people in the media, namely on Twitter, have voiced the claim that, in relation to vaccinating children, Bell sets “the law”:
This tweet sparked an interesting Twitter thread, with many people debating whether, in fact, Bell is the law:
The case of Bell is a claim for judicial review of the practice of the Gender Identity Development Service (GIDS) prescribing PBs to children (under 18s) who experience gender dysphoria (GD). The Divisional Court was asked to consider whether children with GD can ever be Gillick competent to consent to treatment with PBs and, if so, whether the provision of information on this treatment was sufficient to support an informed consent.
The judgment confirmed that Gillick competence was the correct approach to adopt for under 16s asking for PB treatment. However, in order to be Gillick competent in this specific context, the child would have to understand, retain and weigh up the following:
- the immediate consequences of the treatment in physical and psychological terms;
- the fact that the vast majority of patients taking PBs go on to cross-sex hormones (CSH) and therefore that s/he is on a pathway to much greater medical interventions;
- the relationship between taking CSH and subsequent surgery, with the implications of such surgery;
- the fact that CSH may well lead to a loss of fertility;
- the impact of CSH on sexual function;
- the impact that taking this step on this treatment pathway may have on future and life-long relationships;
- the unknown physical consequences of taking PBs; and
- the fact that the evidence base for this treatment is as yet highly uncertain.
The court in Bell concluded that:
‘A child under 16 may only consent to the use of medication intended to suppress puberty where he or she is competent to understand the nature of the treatment… There will be enormous difficulties in a child under 16 understanding and weighing up this information and deciding whether to consent to the use of puberty blocking medication. It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.’ [para 151].
The court, in relation to 16-17-year-olds, acknowledged that the legal position is different in that there is a presumption that they have the ability to consent to medical treatment. However, the court recognised that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment.
It is crucial to clarify that Bell is a case about PBs, not about Covid vaccinations. There is nothing in the Bell judgment to suggest that the established position in relation to consent to medical treatment has changed. It is just that, now, what amounts to an informed consent for PBs relies on the child having their competence assessed against the eight guidelines (listed above). For consent to be informed, the child does not have to demonstrate an adult level of understanding (Montgomery v Lanarkshire Health Board  UKSC 11) but, instead, they ‘must have a sufficient understanding of the salient factors’. The decision to have a specific framework for assessing competence is not something revolutionary. In fact, Gillick set out a list of guidelines that children will be judged against if they wish to receive contraceptive advice and treatment. In a sense, Bell merely adjusted the threshold for competence relating to PBs. Thus, contrary to the misinformation circulating, Bell did not “specifically say that children under 18 cannot give their informed consent to experimental medical treatment”. In fact, children can give an informed consent, but it was suggested that it is ‘highly unlikely’ that those under 14 could give an informed consent and that it is ‘doubtful’ that children aged 14 or 15 could weigh up the long-term implications of the PB treatment. This does, however, mean that (depending on the outcome of Bell’s appeal) children are likely only to obtain access to PBs if the court provides authorisation.
Thus, Bell has not changed the law, but it may have created a pathway for change.
Applying Gillick competence to the vaccine
The area of contention may come down to defining what counts as “experimental medical treatment” and whether the Covid vaccine is so experimental that children should not be offered it because they cannot provide an informed consent. The decision of a child to consent to the Covid jab may require them to balance the alleged experimental nature of the vaccine against other issues. The child would have to be sufficiently informed of the risks and benefits of vaccination. The assessment by the JCVI is that the health benefits from vaccination are marginally greater than the known harms. The health benefits may include understanding that while the risks from catching Covid are very low and the fatality rate is very low, there remains a chance that they could fall seriously ill without immunisation. The child is part of the wider community, and their being vaccinated could protect vulnerable adults from contracting the disease. The child would have to understand the known risks, such as the common side effects, as well as the very rare side effects of myocarditis and pericarditis. The child would also have to understand that there is a lack of data on the long-term risks and consequences of immunisation and that the margin of benefit is considered small. The child (and parents) ought to weigh up these (and any other) issues before choosing whether or not to have the Covid jab.
How did Bell treat the issue of parental consent?
The court in Bell did not address the issue of parental consent (though it was not incumbent on the court to address this issue). However, this matter was shortly clarified in AB v CD & Ors  EWHC 741 (Fam), with discussion found here. This case concerned the issue of whether parents could consent to the PB treatment of their child or whether the decision should come before the court, either as a matter of legal requirement or as a matter of good practice. On parental consent, Mrs Justice Lieven’s conclusion can be summarised as follows:
- If a child was Gillick competent and had not objected to their parents giving consent on their behalf, a doctor could rely on the consent given by the parents.
- If the child was not Gillick competent, the parents could consent on their behalf.
- The parental right to consent to treatment on behalf of a child continued even when the child was Gillick competent to make the decision, save where the parents were seeking to override the child’s decision.
Re R and Re W suggested that parental consent to treatment could ‘trump’ the refusal of even a Gillick competent minor. But in AB the judge took the view that Re R and Re W do not fit with what was said in Gillick and that parents cannot use their consent to ‘trump’ the Gillick competent child’s decision. However, it is important to caveat that this interpretation by a first instance judge does not overrule what was held by the Court of Appeal in Re R and Re W because the Court of Appeal is a higher court. There is some merit in the judge’s view, and it deserves future analysis, but it remains that parents can override their Gillick competent child’s decision if that decision is to refuse treatment that is in their best interests.
The law, as established by Gillick and confirmed in Axon, Bell,and AB v CD, recognises the Gillick competent child as an independent rights holder, and a doctor (or any other treating medical professional) can lawfully rely on the Gillick competent child’s consent to administer the proposed treatment, even when parents object.
On the question then of whether a child (12-15-year-olds) can consent to Covid jab administration and do so without parental interference, the answer is as follows:
- If the child is Gillick competent (as determined by a medical professional), the child can independently provide valid consent, or they can ask their parents to consent on their behalf, to the administration of the vaccine.
- If the child is not Gillick competent, the child will not be administered the Covid jab unless the parents (and here we mean someone with parental responsibility) consents to its administration.
- If the Gillick competent child does not consent to the administration of the Covid jab, and the parents also do not consent to the child receiving the Covid jab, the vaccination will not be administered to the child.
- However, if a Gillick competent child refuses the vaccine, the parents can consent instead of the child (if we take Re R and Re W as good law rather than AB v CD). However, it would be a legal risk to vaccinate a Gillick competent child against his or her will.
The outcome of the appeal in Bell has yet to be delivered, and there might yet be a judicial challenge on children’s consent to Covid vaccines, so the debate on the law in this area is far from settled. Watch this space.
UPDATE 17.09.21 – After this blog post was written, the Bell decision was overturned on appeal, so we now have to be cautious about what Bell said, in particular in the way it thought that children at certain ages were unlikely to be able to understand certain things. The Court of Appeal reiterated that there are no guideline or fixed ages at which children become capable of making decisions, and it was for clinicians to decide whether a child was Gillick competent. Applying this to vaccines, it would mean that (a) the decision as to whether a child can consent to the vaccine is made by medical professionals and (b) different children gain Gillick competency at different ages and we cannot generalise.
Alex Tiseo, our blogger, has written an update to his post, as follows:
The Court of Appeal in Bell & Anor v The Tavistock and Portman NHS Foundation Trust  EWCA Civ 1363 allowed Tavistock’s appeal and set aside the declaration and guidance provided by the Divisional Court. The Divisional Court made a declaration as to the relevant information that a child under 16 would have to understand in order to have the competence to consent to the administration of puberty blockers. The Court of Appeal recognised that the guidance derived from the understandable concern of the Divisional Court for the welfare of children suffering from gender dysphoria. However, the Court of Appeal held that the Divisional Court was not in a position to generalise the capability of persons of different ages to understand what is necessary for them to be competent to consent to the administration of puberty blockers. Furthermore, the guidance that there should be an application to the court in circumstances where the child, parents and clinicians all consider the treatment to be in the best interests of the child would be inconsistent with established precedent. The Court of Appeal held that the Divisional Court had placed an improper restriction on the Gillick test of competence: a restriction through the terms of the declaration itself, by the utilisation of age criteria and by the requirement to make applications to the court. The Court of Appeal affirmed Gillick in that, as a matter of law, it was for clinicians rather than the court to decide on competence.