9 March 2010

Q. If a patient is under 16, who can consent to their treatment?

Valid consent should normally be obtained before any treatment, including an examination, is provided for a child. Many children attend the dental practice with members of an extended family, child minders or friends. However, many of these adults, although they have the child's best interests in mind, are unable to give valid consent for the child's treatment. If treatment is provided without consent complaints can arise and the clinician can be vulnerable to a charge of assault or battery.

Consent can be given by an individual with parental responsibility for the child. All mothers have automatic parental responsibility. Parental responsibility rests with both parents, provided they are named on the birth certificate and regardless of whether they are married or not, for children whose births were registered from:

  • 15 April 2002 in Northern Ireland
  • 1 December 2003 in England and Wales
  • 4 May 2006 in Scotland.

For children whose births are registered prior to these dates, the father would only have parental responsibility in the following circumstances:

  • if he and the mother were married at the time of the conception, birth or some time after; this responsibility is not lost if the mother and father later divorce
  • if he and the mother were never married but he has a parental responsibility agreement with the mother that is registered with the High Court, or a parental responsibility order from the court.

Other people may be given parental responsibility by court order or by being appointed guardian upon the death of the parents.

If the child is the subject of a care order, the local authority has parental responsibility which is shared with the parents. If the child is in care voluntarily, parental responsibility remains with the parents. The clinician needs to be aware when treating children in care or foster care who has parental responsibility.

Children under 16 will generally be assumed not to be competent to consent to their own treatment. However, on occasions a child under unde16 may be judged to be competent to give consent. Under 16s are considered to be competent to give valid consent to a particular intervention, if they have "sufficient understanding and intelligence to enable him or her to understand fully what is proposed" (sometimes known as "Gillick competence"). However, where the decision will have on-going implications (an extraction for example), it is good practice to encourage the child to inform his or her parents. The responsibility to determine whether the child has that ability to consent rests on the practitioner.

If advice about consent is required either generally or in relation to a specific situation, please contact Dental Protection for further advice.

Dental Protection Limited is registered in England (No. 2374160) and is a wholly owned subsidiary of The Medical Protection Society Limited (MPS) which is registered in England (No.36142). Both companies use Dental Protection as a trading name and have their registered office at 33 Cavendish Square, London W1G 0PS.

Dental Protection Limited serves and supports the dental members of MPS with access to the full range of benefits of membership, which are all discretionary, and set out in MPS’s Memorandum and Articles of Association. MPS is not an insurance company. Dental Protection® is a registered trademark of MPS.

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