Consent to treatment and the Mental Capacity Act

Children under 13

Parents are required to consent to any treatment for a child under the age of 13.

Young people aged 13-16 years old

Children and young people who are between the ages for 13 and 16 are able to consent for themselves for certain aspects of care, if they can be shown to be Gillick Competent. Gillick competency involves ensuring the young person understands the situation, can weigh up the risks and benefits, understands long term implications and their ability to explain the rationale behind their decision.

For more information on Gillick competency click here

Young people and adults aged 16 and over

An individual is presumed to have the capacity (ability) to make their own decisions after the age of 16, unless proven otherwise. If they have capacity, a young person can consent to their care themselves and their parent is no longer able to consent for them or override their decision. Care will also only be discussed with a young person’s parent with the young person’s permission. If an individual has the ability to make a decision we must honour their choice – even if we disagree with it or think it’s unwise! The act puts some restrictions on these choices and this is explained in the code of practice please see link for the code

Some young people with a learning disability for example, may have the capacity to make some simpler decisions e.g what to wear, what to eat but not others e.g whether to have complex surgery and they should be supported to make whatever decisions they can. The act is very clear that mental capacity is time and decision specific.

If it is unclear with an individual has the ability to make a certain decision then a MCA assessment must be carried out and documented. This will be carried out by someone who can fully explain the decision to be made and the individual will be supported to engage in the decision and communicate their wishes, however they are able.

If it is deemed that an individual does not have capacity to make a decision, then a ‘best interest’ decision will be made for them or someone who is a court appointed deputy can consent to treatment for them  ( see below). For more information on the mental capacity and best interest decisions click here 

Lasting power of attorney and Court appointed deputies

If an individual is unable to make their own decisions someone can be legally appointed to make decisions on their behalf (this is often a family member or carer). This can happen in 2 ways:

Lasting power of attorney – this has to be set up by the individual for whom consent will be made, therefore that individual must have the capacity to be able to consent to give their power of attorney in the first place. These are often used by adults to give consent to others to make decisions for them as they become older and perhaps less able to do this themselves. Information on how to do this can be found on www.direct.gov.uk

Court appointed deputies: If an adult does not have capacity to set up lasting power of attorney then the Court of Protection can approve someone (often a family member) to be that person’s deputy and make decisions on their behalf. Applications to the court of protection for Deputyship can be made for young people from the age of 16; if they are unlikely to regain capacity, for example a young person with profound learning disabilities. To become someone’s deputy you need to apply to the Court of Protection and can get the forms from here. For more information on becoming someone’s deputy click here 

For further support and information about the MCA act please contact the Safeguarding Team on 03003032642 or email provide.safeguarding@nullnhs.net