Consenting to medical examination and treatment
What's Important To Us
Whenever we are involved in decision making for or about a child or young person we need to act in a way that ensures decisions are made by the family whenever possible and that the child's best interests are at the heart of the decision making. Before a child in our care receives any medical examination or medical treatment it is important to ensure we obtain appropriate consent (at an age appropriate level) and keep the child or young person and their family well informed.
Involving the child or young person and family/whānau
In principle, when a child or young person requires a medical examination or procedure social workers should obtain informed consent from both the parent or guardian and the child or young person. As family-led decision making is at the core of best practice we need to involve the child or young person and their family/whānau at the earliest point and ensure they have access to the medical professionals who can provide the relevant information to support decision making.
When faced with the need to make a decision quickly it can be very difficult for some people to process all the information and make the best decision they can for the child or young person. Involve everyone early on; this provides the child or young person, parents and other guardians with the opportunity to talk things over with wider family/whānau, seek advice, ask questions and make an informed decision in the best interests of the child or young person. It also means that we can share relevant information and keep everyone well informed.
Proving informed consent
Before a person can give consent to any medical treatment they must have a clear appreciation of:
- what is actually being proposed
- why the intervention is needed
- whether there are alternatives
- the benefits
- the implications for the child or young person in terms of pain
- and the risk of unexpected complications.
Similarly, even when a child or young person cannot consent to a medical treatment or examination (as discussed in the next section) it is respectful to provide them with age appropriate information about what is being proposed and why it is necessary.
There are a number of different circumstances where children may require medical treatment and who we need to seek consent from differs based on the type of medical treatment:
- Routine medical procedures
- Non-routine medical procedures - including immunisation, injections, examinations under anaesthetic and examination of the anal/genital region.
For children and young people who lack the capacity to consent to medical procedures themselves, a person who has the day to day care of a child (but is not a guardian) can consent to routine medical examination/treatment. What is routine can be determined by considering what a New Zealand child or young person generally needs to have their day to day care met. For instance, when a child or young person presents as unwell or injured it is appropriate for their caregiver to take them to a health professional. The caregiver can agree to routine checks such as a Plunket Well Child check or a regular dental check up and can agree to routine medical treatment such as a prescription for a throat or ear infection.
A guardian is responsible for assisting the child or young person with making decisions about important matters affecting the child. A non-routine medical examination or treatment is an important matter affecting a child and requires the consent of the guardian, unless the child has the capacity to consent in their own right. This includes immunisation, specialist examinations, examinations relating to alleged sexual abuse and operations. Where there is more than one guardian we should obtain the agreement of all guardians and wherever possible in writing.
In the case of s53 in the Oranga Tamariki Act 1989, the social worker should make all reasonable efforts to obtain consent for a medical examination from the parents and where appropriate the child or young person. However, where it is not possible to obtain consent and a medical examination or treatment is deemed necessary the social worker should take care to inform the child or young person about what is happening and why. It is also good practice to keep the parents or guardians informed of what is taking place and why it is necessary. Also, under s53, where a medical examination requires any internal examination of the genital or anal area, the consent of the child or young person is necessary taking into consideration the age and maturity of the child or young person to give consent. The child or young person is also entitled to have a nominated adult of their choice present during any examination. In other situations, where an internal examination is considered necessary, it is appropriate to follow similar processes wherever possible. An internal examination is not a routine matter.
The ability of children and young people to consent
A young person aged 16 years or older can consent or refuse to consent to medical procedures as if he/she were of full age. A female child (of whatever age) can consent/refuse to consent to a procedure to terminate a pregnancy. Even if the child is too young to consent themselves they should be kept informed, at an age appropriate level, about what is planned and why.
If a child or young person has capacity to consent, they can also refuse to consent.
A child or young person under 16 years may have the capacity to consent to medical procedures if they are assessed as Gillick competent. The Gillick competent is based on a judgement made by The House of Lords that held that a child or young person's ability to give effective consent was dependent upon that particular child or young person's capacity rather than reaching any particular age. The Gillick case has been adopted and cited by New Zealand Courts. Based on Gillick the age of consent is based on a test of the child or young person's age and maturity and the capacity to weigh up the relative benefits, advantages or disadvantages or risks. The social worker needs to use their professional judgement to decide if an individual child or young person has the capacity to make a decision about a medical procedure and if they sufficiently understand what they are being asked to consent to.
As the child or young person's social worker you need to ensure the child or young person is supported by an adult they trust to understand the information provided by the medical professionals, to talk through their concerns, to put forward their views, to have their views heard and if appropriate give consent.
In assessing whether a child or young person has the capacity to consent in their own right, it is best to err on the side of caution particularly when the medical procedure is non-routine. If it is decided that a child or young person is Gillick competent, make comprehensive notes of the factors taken into account in forming this decision and record this in CYRAS. Even when a child or young person has capacity to consent, it remains necessary to inform the parents/guardians of significant decisions affecting their child.
When a parent cannot be contacted
For various reasons there may be times when a parent or other guardian cannot be contacted. It is important that the social worker makes every effort to contact a parent or other guardian and inform them of the situation.
When medical examinations or treatments are non-urgent and known about in advance the social worker can attempt to contact a parent or other guardian immediately to avoid the need for any unnecessary delays in treatment.
When the medical examination or treatment is non-routine, urgent and the child or young person does not have capacity to consent, consult with your supervisor and legal advisor about the next steps. Section 36(3) of the Care of Children Act 2004 will apply and your legal advisor can guide you on the correct use of this piece of legislation.
When parents or guardians disagree or refuse to consent
Children and young people who are in the custody of the chief executive often have guardians in addition to their parent/s. In circumstances where there is disagreement about the proposed examination or treatment we need to make sure that everyone has all the information available to help them consider the options and that everyone has access to the medical professionals who are able to answer their questions. If agreement can still not be reached then consult with your supervisor and legal advisor about the next steps.
It is important to remember that information gathered during a medical examination is confidential to the patient but there are exceptions. The exceptions relate to the safety of the child or young person or any other person. Risks to safety may include self harm, harm to another person or being harmed by someone else. There may be times when there is good reason to breach confidentiality. Best practice suggests that, whenever practicable, the reasons for breaching confidentiality should be discussed with the child or young person before the information is shared. Where a medical examination is being carried out as part of an investigation, the child or young person should be told what the information will be used for and who will have access to it and why.