When looking at paediatric dentistry, clinical skill is only part of the equation. Understanding the legal and ethical framework around consent is just as critical. As dental professionals, we are entrusted not only with the care of our youngest patients, but also with navigating the responsibilities that come with treating children and adolescents.

Consent in this context can be more nuanced than when dealing with adult patients, so it is important to keep this in mind.

When can a child consent to treatment 

Section 3 of the Children Act 2001 states a child is any person up to the age of 18, which is simple enough. However, elsewhere in the Children Act – and also the Criminal Justice Act – there are provisions which set out that “criminal responsibility” – that is, adult criminal responsibility – will apply from the age of 12 or in some specific instances even the age of 10.

So, although someone may be a child, they are not always treated like a child by the law. In the dental context however, 18 can be considered the definitive line to cross into adulthood.

However, it is not just this simple. There is another piece of legislation that muddies the water a little around consent for 16 - 17-year-olds.

The Non-Fatal Offences Against the Person Act contains a provision that permits a 16-year-old patient to consent to their own treatment. The position is not clear on whether 16-year-olds have the corresponding ‘adult’ right to refuse treatment, but this really has limited practical effect. After all, it would obviously be impossible to force an unwilling 16-year-old to have dental treatment, no matter how much a parent might want them to have it.

Aside from the legal status, in practical terms, when dealing with 16 - 17-year-olds it can be sensible to involve the parents in discussions about treatment – with the appropriate permission from the patient – simply because it is good to keep them on side. It is after all likely to be the parents who will be paying the bill and they are the ones most likely to raise a complaint if they are unhappy with something.

Children under the age of 16  

At present, a child under 16 in Ireland is incapable in law of giving or withholding consent to treatment, irrespective of maturity and understanding. The concept of the ‘Gillick competent’ child, which clinicians familiar with practice in the UK may be aware of, has not been established by the courts in Ireland. So, the short answer is that children under the age of 16 cannot legally consent themselves to treatment.

Who can consent for dental treatment for a patient under 16? 

Under Article 41 of the Constitution, decisions relating to the family rest with the family. The effect of this is that dentists must obtain consent from an adult with ‘parental responsibility’ – otherwise known as ‘guardianship’ – for the child.

It is generally the case that parental responsibility/guardianship is exercised by parents, but not always. If there is any doubt over who can consent for the child, consideration should be given to deferring treatment until the situation is clarified. 

Who holds guardianship? 

To start with, the birth mother will have guardianship by right from the very outset, ie automatically from the birth of the child.

The situation with fathers is subject to more conditions, but the current rules reflect common family arrangements. A father will have guardianship if married to the mother before or after the birth of the child. An unmarried father can be appointed as a ‘joint guardian’ by the court.

Alternatively, under the Children and Family Relationships Act 2015, the situation from January 2016 has been that a father who has lived with the child's mother for 12 consecutive months – including at least 3 months with the mother and child following the birth – will be recognised as having legal guardianship without the need for any formal appointment by a court.

This legislation was enacted to take account of current societal norms and to reflect the reality of many modern families. For both married and unmarried fathers, guardianship, once held, is not extinguished by the subsequent separation or divorce of the parents, unless this is directed by a court order. 

There are of course other family situations. For example, a child may have two mothers or two fathers, there may be co-parenting arrangements involving others who care for the child, or the child may have a ‘stepparent’, who is the partner of a biological parent. There are all sorts of situations and ‘blended’ family arrangements are much more commonly encountered.

In such circumstances, the constant factor is that only the ‘birth mother’ can be taken for granted as holding guardianship and therefore has power to consent. For other parties, it is necessary to establish the basis on which any of the others may have this. For ‘non-parents’, guardianship can come from a court order granting this or by appointment after the death of parents.

It is important to note that adoption results in the adoptive parents assuming all the rights and responsibilities of the biological parents who then lose guardianship. The child is then legally unrelated to the biological parents, who then have no powers in respect of consent.

Considerations for fostered children 

First, it can be helpful to consider the background of foster care. At present there are almost 5,800 children in foster care in Ireland. Placement can arise voluntarily when a family member asks for assistance from Tusla, the Child and Family Agency, or when a court decides it is in the best interests of the child to make a ‘care order’.

Foster care can be short-term for a period of weeks or months before returning to the natural family, or longer-term – perhaps even until adulthood. Whenever possible, children will be placed with a suitable relative. At present approximately one-quarter of children ‘in care’ will be with relatives.

Foster carers (or relatives) who have had care of the child for a continuous period of at least five years can apply for a court order, which will give broadly the same rights as parents have to make decisions about their children (Child Care (Amendment) Act 2007, s.4).

Without such an order, foster parents can consent to urgent treatment and are encouraged to take children for routine health checks, but they do not have guardianship, and consent should be sought from a holder of guardianship for non-urgent treatment. Where the child is the subject of a ‘care order’, the HSE (Child and Family Service Division) can give consent to treatment. 

Case study – A theoretical scenario 

A 10-year-old patient attended a dental practice as an emergency with severe pain after dental trauma while at a friend’s house. The patient was brought in by the friend’s parent, who was not related to them.  

What steps should be taken? 

• You should try to contact their mother or another appropriate guardian if possible.

• The approach should be to provide care to the extent necessary to address the immediate problem safely and ensure, as far as possible, that the patient is out of pain.

• The emphasis should be on taking the least invasive approach to stabilise the situation to keep options open for decisions on more definitive treatment at a later point.

• If possible, share the decision with a colleague or others with an interest in the child’s care.

• If no guardianship, establish if the attending adult has brought the child with the full knowledge and permission of the appropriate consent holder. If in any doubt, take a cautious approach and seek advice.

• Keep good records of the consent process.

It is important, of course, to remember safety. Sometimes, in the light of addressing issues around consent, the all-important need for a current medical history is overlooked. Whether or not the adult accompanying the child can consent, you need to be confident that you can obtain an accurate medical history in order to ensure patient safety.

To summarise, when obtaining consent for a child patient, always clarify the situation and check who you are dealing with. If the child is not with their mother, find out who has brought them, and find out from them if they have guardianship. Fathers, and others, can have guardianship subject to certain conditions. Record any information you are given. 

This article is based on a podcast episode from the authors, which you can listen to here.