Parental responsibility

ESTRANGED parents, foster carers, close family members – the question of who exactly has the right to consent for dental treatment in children is often a complex one that can be difficult to judge. At MDDUS, we have dealt with a number of calls from members seeking advice on this topic.

Before delving into the finer details of each case, remember the basic principle that, generally, only a person with what is known as ‘parental responsibility’ can consent to a child’s dental treatment (assuming the child does not have the capacity to give consent themselves).

Parental responsibility cannot be transferred by those who hold it but they can authorise others to act on their behalf. As in most situations, any emergency treatment can be provided without consent.

Common scenarios we encounter include a child being brought to the practice by a father who does not live with them or by a foster parent or relative and there is uncertainty in determining who holds parental authority to consent.

Sometimes parents still retain responsibility for the child even when they are being cared for by someone else. Indeed, it is often the case that the foster parent or person attending with the child does not know whether or not they have parental responsibility.

It can be a complex area and, if doubts exist, we would advise caution and even withholding non-emergency treatment until written consent is provided by a responsible parent.

While the law is recognised in all UK jurisdictions, there are some subtle differences as to who holds parental responsibilities (PR) between countries. In each nation, a birth mother automatically has PR unless this has been removed by a court. Likewise, an unmarried father can be granted a PR order by a court or can obtain a PR agreement with the child’s mother. But there are differences.

In Scotland, the Children (Scotland) Act 1995 defines who has parental responsibility and the right to consent to a child’s treatment. A father will have PR if he was married to the mother at the time of the child’s conception or after. An unmarried father will have PR if his name appears on the child’s birth certificate and the child was born on or after 4 May 2006. In England and Wales, the law differs slightly in that a father will have PR only if he is married to the mother at the time of the child’s birth. An unmarried father will have PR if his name appears on the child’s birth certificate and the child was born on or after 1 December 2003.

In Northern Ireland, a father will have PR if married to the mother at the time of the child’s birth or after – if living in Northern Ireland at the time of the marriage. An unmarried father will have PR if his name appears on his child’s birth certificate and the child was born on or after 15 April 2002.

In the case of same-sex parents who are civil partners, both have parental responsibility if they were civil partners at the time of the treatment, e.g. donor insemination or fertility treatment. For non-civil partners, the second parent can get PR by either applying for it if a parental agreement was made, or becoming a civil partner of the other parent and making a PR agreement or jointly registering the birth.

There are also legislative differences in the UK that affect children and young people and their rights to consent on their own behalf.

In Scotland, competent patients, even if under 16, can consent in their own right and parents do not simultaneously have a legally valid proxy. A decision by a competent young person under 18 to refuse treatment is likely to be binding and legal advice should be obtained in complex cases. It may be helpful to encourage the young person to discuss the matter with a parent/carer. Be sure to ask the patient’s permission before discussing treatment options with a parent/carer.

Any patient aged over 16 who lacks capacity in Scotland is subject to the Adults with Incapacity (Scotland) Act and all medical treatment must comply with the terms of this act. Someone who “has care” of a child cannot act in a way contrary to the known wishes of the parents – thus if a carer attends with a child and treatment is required, parental wishes should be ascertained.

In Northern Ireland, the situation is similar to England although there is some ambiguity about the status of someone with parental responsibility being able to consent for a competent young person who refuses consent.

On these rare occasions such cases will likely need to be referred to the court. Currently there is no specific legislation regarding young people aged 16-17 who lack capacity and common law principles (those from case law and precedent) must be followed.

Aubrey Craig is head of dental division at MDDUS