What happens when separated parents disagree about a child’s medical treatment?

People who have parental responsibility are entitled to provide consent for medical treatment for their children. In most cases, parents make the decision jointly, or they are in agreement regarding the child’s treatment. But sometimes, they disagree. This article deals with the situation when you can’t agree with your ex over your child’s medical care.

What happens when those with parental responsibility disagree about treatment?

The law only requires one parent to agree in order for doctors to provide medical treatment lawfully to a child. Parents can disagree, and this leaves doctors in an unenviable position because they are reluctant to override a parent’s strongly held views. This is particularly true where the benefits and burdens of treatment are finely balanced, and it is unclear what is in the best interest of the child.

Parental disputes over treatment can be difficult for all those involved, and health professionals must ensure they avoid being drawn into family melodrama and martial disputes and only concern themselves with the welfare of the child.

Doctors will always try to reach a consensus with the parents over a child’s treatment, but if all discussion fails, they will ultimately decide whether to go ahead. The onus will then be on the dissenting parent to take steps to reverse the doctor’s decision. If the dispute is over an ‘elective’ procedure, such as male circumcision for religious purposes, doctors cannot proceed without a court order saying they may do so.

In cases concerning older children, if they are considered competent and understand the issues, their consent will be sufficient for treatment to go ahead. Although, with the child’s agreement, doctors will always try to involve parents in any decisions.

When is a child considered competent and does this limit parental responsibility?

It has been mentioned above that a young person may be able to make a decision about their own treatment. Although there is no statutory guidance on this issue for children under the age of 16, the landmark Gillick case held that “parental rights were recognised by the law only as long as they were needed for the protection of the child and such rights yielded to the child’s rights to make their own decisions when he reached a sufficient understanding and intelligence to be capable of making up his own mind”.  That said, subsequent cases have retreated from this position where treatment has revolved around refusal of care.

For medical treatment that is unlikely to have serious consequences, consent from a young person under 16 will be taken into account, providing they can demonstrate they have a level of comprehension that understands the nature, purpose, and possible consequences of the care they are receiving.

Can a relative other than a parent give consent to medical treatment?

Apart from those with parental responsibility, any person who cares for a child, for example, a grandparent or child minder is legally allowed to do “what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare”. Parents can also authorise a third party to take over certain responsibilities. This could be because the parents have arranged for someone else to look after the child while they are away, for example. That said, it is unlikely to be considered “reasonable” under the Children Act, for a non-parent to provide consent if they knew the child’s parents would object.

Are there limits to parental responsibility and medical treatment?

There are limits on what parents can decide in respect of their child’s medical treatment. They are not entitled to inappropriate treatment or to refuse any treatment that is in the child’s best interests. Where doctors believe parental decisions are not in the child’s best interests, they can challenge it in the court. During this time, doctors can only provide emergency treatment essential to preserving life or preventing serious deterioration in the child’s condition.

If you have a family law issue and you require legal advice to understand your options, contact specialist family law solicitor Parvien Akhtar. Parvien is an award-winning lawyer with 25 years of experience as a qualified solicitor, and has a proven track record of providing high-quality advice to her clients.