Who can give consent?
Anyone who is over the age of 16 can be presumed to be able to have the capacity to consent to their own medical treatment. Anyone under the age of 16 can consent to their own treatment, as long as they are able to show that they can understand the implications of that treatment.
Of course there will be people who are over 16 who will be unable to understand and make decisions just as there will be people under 16 who are unable to consent.
When people are unable to understand enough to make decisions, we have two options:
- We can use aids to help them understand. Present the information in a simpler, better way. Use audio or video. Choose bigger, bolder text or images or different colours. Introduce information leaflets and examples or scenarios.
- We can look to ask someone else to make that decision for them. In this instance we would look at whether there is a legal power of attorney in place, or someone with parental responsibility. In some cases we might need to ask the courts to help with the decision.
In some circumstances the patient may not want treatment but everyone else thinks it is a good idea. Other times, the patient wants it but others disagree. When this is a child and parent, this can be compounded by emotion.
If a child has a broken arm that needs pinning, they may scream and cry and say that they don’t want an operation. But the parent and doctor both know that the best thing to do would be to have the operation, and the child’s wishes are overruled.
There have been legal cases where the young person has needed a blood transfusion but the parent has disagreed for religious reasons. The courts are asked to decide in such emotive cases, to see what is in the best interests of the patient.
Of course there may also be examples when someone with legal powers to consent, such as a parent or someone with power of attorney, but they seem to be making a decision that the doctor does not feel is in the best interests of the patient. In this instance they must make sure that nobody is making a unified decision and instead a decision must be sought from multiple professionals. Alternatively, the consent of the court can be sought.
How does this relate to transgender care?
Transgender care is an emotive subject. The young person may want to take blockers to suspend puberty or to take hormones to induce a puberty in line with their identified gender, but their parents may disagree.
A parent may understand that their child is transgender and support active treatment, but the child is unable to make it clear to the doctor that they understand the treatment and what the implications might be. What if the child is so anxious, distressed, depressed, agitated that they can’t communicate effectively? What if they are also neurodiverse (Autistic Spectrum Disorder) and can’t clearly make the doctor believe they know what is best for them?
In situations such as this, the parent may consent on behalf of the child and if the doctor and the parent agree then they can go ahead and offer the child treatment.
There may also be cases where the child wants one thing and the doctor agrees but the parent disagrees. In these cases if the child can show that they are able to understand all the information, the pros and cons, and that they are not being coerced in any way, then the doctor can go ahead without the consent of the parent.
In tricky cases, where the treatment is medically indicated, but the parent opposes and the child is unable to make a best interests decision for themselves, the doctor should ask the court to help.
In every case it is essential that the patient gets the care they need, at the right time. The best interests of the patient must be the most important factor, overriding all political, social or emotional caveats.
The key questions that need to be addressed are as follows:
Step 1 – is the patient able to give consent?
Step 2 – is there someone in a legal position who can make that decision (and the doctor agrees)?
Step 3 – are difficult decisions being made jointly by a multidisciplinary team?
Step 4 – should the court be asked to assist?
But overriding all, is to do the best thing for the patient.