Health and Welfare Decisions for Young People

Young adulthood is an important transitional phase traditionally carrying weighty expectations of attaining financial independence, developing romantic relationships and becoming productive, responsible members of society.

Transitioning to adult health and social care

Young people with significant physical or cognitive disabilities will transition into adult health and social care systems which may seek to promote their autonomy and independence.  Understandably this can be an anxious time for parents or other care givers, particularly those who have spent many years ensuring that their young person receives the care and support that they need.

The rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and their property and welfare, including the right to make decisions about education and consent to medical treatment, change as a child matures.  Parents retain duties such as providing a home until the child reaches 18 but from the age of 16 young people may start to make many decisions for themselves.

The Care Act 2014 sets out the requirements on local authorities to support effective transition from children’s to adult social care services when young people are approaching, or turn, 18 and are likely to require an assessment for adult care and support.

From age 16, young people will establish rights under GDPR which may make it more difficult for parents or other care givers to receive health and social care information that was previously routinely shared with them.  Once a child is mature enough to understand their rights regarding information held about them, the information belongs to the child and the right to access it is theirs.  It is noteworthy that on occasion information will be withheld from a Subject Access Request made by a child or young person if the authority that holds the data considers that the disclosure of the information might be harmful to them.  The overriding consideration for healthcare professionals must always be the child or young person’s best interests.

It is important that children and young people are able to speak confidentially to doctors and professionals.  Decisions about onward disclosure, even to parents, need to be taken carefully.  Equally sharing information appropriately can be key to providing safe, effective care.

Information can be shared without consent if it is justified in the best interests of the child or young person (and they lack capacity to make a decision about disclosure), in the public interest or required by law. Parents will often argue that it is in the best interests of the child or young person for information to be shared with them.

Gillick competence and young people

For medical purposes even prior to the age of 16 years, where a child is assessed as having sufficient maturity and understanding to consent to a particular course of treatment, they may be considered to be ‘Gillick competent’ in accordance with the principles established in Gillick v West Norfolk and Wisbech AHA [1986] AC 112. This case established the circumstances whereby treating clinicians are able to rely upon the child’s consent without the need to obtain consent from a parent. Post 16, treating clinicians will be able to rely on consent from the young person alone, without consultation or reference to their parent, unless they consider that the young person may lack capacity within the meaning of the Mental Capacity Act 2005 (MCA).

The Mental Capacity Act 2005 (MCA) applies to those over 16 years old living in England and Wales who lack the capacity to make some or all of their own decisions.

The purpose of the MCA is to empower people to make their own decisions wherever possible. Where this is not possible, the MCA outlines how to allow others to make decisions on behalf of someone that lacks capacity whilst protecting their rights and interests.

Where there is disagreement on a care or treatment decision for a young person over 16 who lacks capacity to make their own decision on the issue, a best interest decision making process at local level may lead collaborative resolution.  This should involve consultation with and the involvement of the parents or care givers, although they will not be the decision makers. If local processes do not result in resolution, then it may be necessary for an application to be put before the Court of Protection to make a best interest decision. If the young person is considered to have decision making capacity but is otherwise regarded as vulnerable, then the High Court within its inherent jurisdiction may be the appropriate legal avenue.

Deprivations of liberty and young people

Re D (A Child) [2019] UKSC 42 Supreme Court considered to what extent parents could impose restrictions upon their disabled child’s liberty, directly or through others so as to secure their child’s interests.  The Supreme Court held that where a 16 or 17 year old lacks capacity to give their own consent to circumstances which would satisfy the ‘acid test’ in Cheshire West and Chester Council v P [2014] UKSC 19, namely whether they are under continuous supervision and control and is not free to leave, then if the state either knows or ought to know of the circumstances, the child is to be seen as deprived of their liberty and requires the protections afforded by Article 5 ECHR including review by a court.  This is the case whether or not the child’s parents or caregivers agree or consent to those arrangements.

Deprivations of liberty can arise in any setting: home, college, care home or a hospital.  They fall within a legal framework which seeks to ensure people are not arbitrarily detained.  The justification of any restrictions must be reviewed at regular intervals.  Care arrangements for young people which might mean they are deprived of their liberty need to be authorised by the court.

Which court is to be applied to will depend on the young person’s age.  For children under 16, authorisation will be needed from the family court or the High Court within its inherent jurisdiction.  For young people aged 16 and 17 who lack capacity, the appropriate court is likely to be the Court of Protection.

We have expertise in dealing with all of these issues and providing legal advice, support and representation to parents, care givers and young people.

For expert advice on supporting young people with health and welfare issues, contact our Court of Protection and Community Care Law team on 01273 609911, or email info@ms-solicitors.co.uk.