Blog14th September 2021
The news that 12 to 15 year olds are to be offered Covid vaccines has led to a flurry of commentary about the question of consent. Around the UK, lawyers have been shouting at their phones, tablets and televisions, as people express surprise that children aged under 16 might be able to make their own medical treatment decisions, even though that has been the undisputed position for 35 years.
In the UK, a child under 16 may have the ability to make her own decision to accept medical treatment that is offered to her, provided she is assessed by the healthcare professional offering the treatment as understanding the information relevant to that decision, and the maturity to weigh it up and reach a decision. This is often referred to as ‘Gillick competence’, after the legal case that established the principle.
The same child might have the ability to make one decision – for example about whether to take some paracetamol – but might not have the ability to make a more complex decision – for example whether to have chemotherapy. If a child does not want her parents to know about her choice, and has been assessed as having the ability to choose for herself, then the parents are not entitled to be consulted. Clinicians might try to encourage a child to involve her parents, but ultimately the child’s decision must be respected.
All this reflects what any parent knows – that while the law requires there to be a clear cut-off point between childhood and adulthood, real life is not that straightforward. There is a balance to be struck as a child grows up between protecting them from harm and letting them make their own choices, whether in relation to healthcare or anything else.
The GMC’s Ethical Guidance for Doctors: 0-18 years confirms that “a young person under 16 may have the capacity to consent, depending on their maturity and ability to understand what is involved” and advises that:
“You must decide whether a young person is able to understand the nature, purpose and possible consequences of investigations or treatments you propose, as well as the consequences of not having treatment. Only if they are able to understand, retain, use and weigh this information, and communicate their decision to others can they consent to that investigation or treatment. That means you must make sure that all relevant information has been provided and thoroughly discussed before deciding whether or not a child or young person has the capacity to consent.”
There are circumstances where the High Court will override the decision of a child who has been assessed as having the ability to make their own choices. This happens rarely. The majority of the cases where the court has stepped in concern children who are choosing to refuse life-saving treatment, often for religious reasons. In those cases, “the duty of the court is to ensure so far as it can that children survive to attain the age of 18 at which an individual is free to do with his life what he wishes”. (In Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64 at 94).
In the context of the Covid vaccines, parents and under 16s should be provided with relevant information to enable them to make an informed choice. The most obvious will be to identify clearly the risks and benefits of having the vaccine for a particular child, so that the child can be given the information she needs to make an informed choice.
The information might be different depending on which vaccine is being offered. The child will also need to know about the risks of not accepting the vaccine, so that the options can be weighed against each other. The long term risks of any of the Covid vaccines are not known for certain, and nor are the long terms implications of having Covid – so those uncertainties will themselves have to be taken into account.
Arguably, children ought to be told that the Joint Committee on Vaccination and Immunisation has concluded that the health benefits from vaccination are marginally greater than the potential known harms, but that the margin of benefit is considered too small to support universal vaccination of healthy 12 to 15 year olds. The advice of the four Chief Medical officers, when they considered the matter from a broader perspective, such as the potential positive impact of vaccination on reducing educational disruption, is that children age 12-15 should be offered one dose of the Pfizer vaccine. The Government has accepted this recommendation.
Under 16s and their parents will need to be informed about relevant non-medical factors, such as the risk of having to miss school if they catch Covid and the risk of passing on Covid to their friends and families. My own under-16 year old was concerned that vaccines should be being sent to those parts of the world where adults who are particularly vulnerable to Covid have not been vaccinated, rather than used by healthy children here.
Even if a child is assessed as not having the ability to make the ultimate decision about the vaccine for themselves, they should still be provided with information about it and their wishes taken into account.
The logistics of carrying out the process of informing children, eliciting their views, and determining whether they have the ability to make their own choice may be complex. It may be that consent will be sought from parents of under 16s in the first instance, with assessments of competence only undertaken if the parents refuse consent, or if the parents give consent but the child refuses to participate. That might be a permissible way forward on the basis that, where parents and children are in agreement, the parent’s right to make decisions for the child can persist even where the child has the ability to make their own choices, if the child effectively abdicates the decision to their parent (see AB v CD & Ors [2021] EWHC 741 (Fam) (26 March 2021)). Healthcare professionals delivering Covid vaccinations to children will need to be aware of and follow the existing guidance around immunisation and consent.
In the House of Commons yesterday, the Minister for Covid Vaccine Deployment said that “whatever decision teenagers and parents take, they must be supported and not stigmatised in any way. We must continue to respect individual choice”. It remains to be seen whether this apparent acknowledgement that saying yes to the vaccine is not the only acceptable choice for under 16s will be reflected on the ground.