Consents and Delegated Authority

Poor planning around delegation of authority can delay decision-making and lead to Looked After Children missing out on opportunities that enable them to experience a fulfilled childhood and feel part of the daily life of their children’s home.

Looked After Children report that problems obtaining parents’ and local authorities’ consent to everyday activities makes them feel different from their peers and causes them embarrassment and upset. Failure to delegate appropriately, or to make clear who has the authority to decide what, can also make it more difficult for residential workers to carry out their caring role and form appropriate relationships with the children in their care.

Before a child is placed in a Children's Home or Foster Home, consent should be obtained, usually from the parent, or a person with Parental Responsibility, for the following:

1. Urgent or emergency medical treatment;
2. First aid, healthcare assessments, advice and treatment, including immunisations;
3. Allowing the child to participate in swimming, outdoor or other pursuits which have a risk attached to them;
4. Whether the child can be administered non prescribed medicines (such as Paracetamol) or home remedies.

Such consent is normally given, in writing, when completing a Placement Plan. However, consent does not have to be given in writing. If the person gives consent verbally, it should be noted on the record and countersigned by the person completing the record.

When the parent or person with Parental Responsibility gives consent, it should be understood that children aged 16 years and over, and others under that age of sufficient understanding, may override the consent in some circumstances. This is explained below.

When deciding who should have authority to take particular decisions, the most appropriate exercise of decision-making powers will depend, in part, on the long term plan for the child, as set out in the child’s Permanence Plan.

For example, where the plan is for the child to return home, the child’s parents should expect to continue to have a significant role in decision-making. However where the plan is for long term foster or residential care, then carers should have a significant say in the majority of decisions about the child’s care.

The Placement Plan will set out how, on a day-to-day basis, the child will be cared for and his/her welfare safeguarded and promoted, this will include arrangements for contact, medical care and education/training.

Wherever possible, the most appropriate person to take a decision about the child should have the authority to do so, and the Placement Plan should provide clarity about who has the authority to decide what.

1. Whether or not consent has already been given, all reasonable steps should be taken to consult the parent(s) or others with Parental Responsibility before medical advice or treatment is sought. If this is not possible, they should be informed as soon as practicable thereafter;
2. Whilst consent to examination or treatment should usually be sought from a parent or person with Parental Responsibility before medical examinations or treatment is carried out, this is not always possible where, for example, a child requires urgent attention;
3. For this reason it is necessary to obtain a written consent from a parent or person with parental responsibility upon admission. If consent is given, but not in writing, the record should show who gave the consent together with the name and designation of the person witnessing the consent;
4. If consent is refused or any conditions are placed upon the consent, details of the refusal or conditions should be included. Such refusal may mean that the service is compromised or cannot be provided; in which case, the matter must be fully discussed before proceeding;
5. Whilst consent is normally given by the parent or person with Parental Responsibility in relation to children under the age of sixteen, steps should always be taken to promote decision-making on the part of children and to ensure their views and wishes are obtained, considered and accounted for. Indeed, a doctor may regard a child as capable of giving or refusing to give their own consent, even if under 16. For such consent by a child under sixteen to be valid, it must be informed and freely given;
6. Children who have reached their sixteenth birthday are regarded in law as capable of giving or refusing to give their consent to examination or treatment and any such action without their consent may be held in law to be an assault;
7. In an emergency, when urgent medical treatment is required, but no prior consent has been given and it is impossible to locate parents or a person with parental responsibility, the following may apply:
   1. A child who has reached his/her sixteenth birthday may give consent;
   2. A responsible adult acting in loco parentis, such as a social worker, residential or foster carer, may give consent on the parent's behalf so long as all reasonable steps have been taken to consult the parent(s) or those with Parental Responsibility and such action is not against their expressed wishes;
   3. Dependent on his/her age and level of understanding, a child who has not reached the age of sixteen may be regarded by a doctor as capable of giving consent;
   4. In a 'life or limb' situation, a doctor may decide to proceed without any consent;
   5. Consent should be given in writing, but it is equally valid if given verbally, provided it was informed and freely given. Written consent is preferred where children are in receipt of services away from home and may require urgent medical treatment in an emergency. Where it is only possible to acquire verbal consent, it should be given in the presence of a responsible witness.

Any decision about delegation of authority must consider the views of the child. In some cases a child will be of sufficient age and understanding to make decisions themselves. For example, they may have strong views about their personal appearance, and it may be decided that they should be allowed to make these kinds of decisions themselves

When deciding whether a particular child, on a particular occasion, has sufficient understanding to make a decision, the following questions should be considered:

• Can the child understand the question being asked of them?
• Do they appreciate the options open to them?
• Can they weigh up the pros and cons of each option?
• Can they express a clear personal view on the matter as distinct from repeating what someone else thinks they should do?
• Can they be reasonably consistent in their view on the matter, or are they constantly changing their mind?

Regardless of a child’s competence, some decisions cannot be made until a child reaches a certain age, for example, tattoos are not permitted for a person under age 18 and certain piercings are not permitted until the child reaches age 16.

The legal position concerning consent and refusal of health treatment for those under 18 years old is set out in chapter 3 of the Department of Health and Social Care Reference guide to consent for examination or treatment, second addition 2009.

Steps should always be taken to promote decision-making on the part of children and to ensure their views and wishes are obtained, considered and accounted for. To this end, children should be encouraged to seek advice or treatment (including dental care and contraceptive advice) from medical or other healthcare practitioners after discussing matters of concern with their social worker, those looking after them and, if possible, their parent(s).

However, it is recognised that this may not always be possible; and that children may wish to seek advice or treatment without reference to parent(s) or those responsible for them, or they may decide to limit the information or consultation.

Where such a situation occurs, it should be treated with care and sensitivity; within the overall context of the duty to promote and protect the welfare of the child.

Children who have reached the age of 16 years can seek the advice of a medical practitioner without referral to or the consent of parent(s) or those with Parental Responsibility, and may decide to keep that advice and any subsequent treatment confidential. In such circumstances, they may share certain information with staff - and may request that it is only shared with specified other people. Such requests should be respected, unless to do so would place the young person or others at risk of injury or harm. This must be shared with the manager of the home and the Social Worker to agree where the information is to be recorded.

Children who have yet to reach the age of 16 should be treated in a manner which is consistent with their age and level of understanding. If possible their wishes should be respected, but all reasonable steps should be taken to encourage them to discuss any concerns with their parent(s), a close relative or guardian. They should also be encouraged to consult their social worker or another responsible person, such as a staff member.

However, if children refuse to consult their parents or others and they appear to have made a reasoned decision which is not likely to place them at risk of injury or harm, they should be supported in that decision and any request for information to be kept in confidence should be respected.

Once the arrangements have been made for a child to see a medical practitioner, the child can request that they do so unaccompanied; such a request should be respected.

Whilst it may be unusual for a doctor or other health care professional to provide advice or treatment to a child under 16 without parental knowledge or advice, they can do so if they believe the child is of an age and level of understanding (Gillick Competency) to understand the implications of the decision they are taking.

They may also do so if they are satisfied that to share the information with parent(s) or carers may place the child at risk.

Decisions about whether to provide advice or treatment without consent or consulting parent(s) or carers are for a practitioner's clinical judgement.