Hempsons podcast: Consent and Capacity for children and young people

Episode Overview

In this episode of The Hempsons Podcast, Anita Rao and Flora Jago take listeners through a concise but comprehensive tour of the legal framework surrounding consent and capacity for children and young people in healthcare settings. They explore how decision‑making differs between under‑16s, 16–17 year olds, and adults, and why understanding these distinctions is essential for clinicians and providers.

Key Topics Discussed

1. Why children and young people aren’t “small adults”
2. How decision-making in healthcare differs fundamentally and why providers must take a tailored approach.
3. Gillick competence explained
4. Its origins in the landmark Gillick case, how emotional and intellectual maturity factor into decisions, and why autonomy for under‑16s is treatment-specific.
5. The shift at age 16: the Mental Capacity Act
6. Why 16 and 17 year olds are presumed to have capacity unless assessed otherwise, and how this differs from the pre‑16 competence model.
7. Understanding parental responsibility (PR)
8. What PR really means, why not all parents have it, and why checking PR is crucial when seeking consent.
9. Common complexities and risk areas
10. Surrogacy arrangements, uncertainty over PR, involvement of local authorities, and serious medical treatment requiring careful navigation.
11. Managing disagreements
12. What happens when parents, clinicians, or the young person disagree about treatment, and why early escalation and specialist advice can prevent disputes from reaching court.

Takeaway Message

Consent and capacity in children’s healthcare is a nuanced, evolving area of law. Being aware of age thresholds, legal frameworks, PR boundaries, and potential disagreements enables clinicians to support safe, lawful decision‑making and avoid unnecessary conflict.

Additional Resources

For a deeper dive into this topic, Anita and Flora’s full webinar is available on the Hempsons YouTube channel.