Capacity and Competence to Consent in Under‑18s
This section summarises the legal principles, practical assessment and ED management of consent and refusal of treatment for children and young people.
It emphasises that competence is functional and decision‑specific (Gillick for under‑16s), that the Mental Capacity Act 2005 (MCA) applies to those aged 16-17 in England & Wales, and that careful documentation, appropriate information sharing and prompt escalation are essential when decisions place the child at risk of significant harm.
Guidance is aligned with NICE NG204, the MCA Code of Practice and RCEM consent guidance.
Key legal principles and definitions
- Capacity (MCA): For those aged 16 and over in England & Wales the MCA 2005 test is functional - the person must be able to understand, retain, weigh relevant information and communicate a decision. 16-17‑year‑olds are presumed to have capacity for healthcare decisions unless assessed otherwise (NICE NG204; MCA Code of Practice).
- Gillick competence: Applies to children under 16. A child can consent (or refuse) if they demonstrate sufficient maturity and understanding to appreciate the nature, purpose, risks, benefits and alternatives of the specific decision. Competence is decision‑specific and may fluctuate.
- Best interests: Where a person lacks capacity, decisions must be made in their best interests, taking into account the person’s wishes and feelings, and the views of relevant family and professionals...
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