Now that covid-19 vaccination of children in the UK is starting, it is essential that the legal basis of consent for a medical intervention in this group are well understood
A Court of Appeal ruling on 17 September 2021 overturned a previous High Court ruling, and decided that parental consent is not needed for children under 16 to take puberty blockers. This reaffirms, again, that the responsibility to consent to treatment depends on the ability of medical staff to decide on the capacity of under 16 year olds to consent to medical treatment.
The timing is auspicious. Just a few days before, the four UK Chief Medical Officers recommended that all healthy children aged 12-15 should be “offered” a single covid-19 vaccine, with a booster likely in the Spring 2022. Until now, the only children in this age group offered a vaccine have been those with certain medical conditions, or those living in a household with a clinically vulnerable adult. With a mass vaccine campaign for children now starting, the issue of consent for vaccines in this group has been headline news.
Reaching the decision about vaccinating 12-15 year olds in the UK has been an interesting process. The Joint Committee on Vaccination and Immunisation (JCVI) have deliberated, awaiting evolving evidence, and have scrutinised the data available purely on a risk benefit basis for the vaccine itself. The chief medical officers looked at wider effects to society, and given that modelling suggests that vaccination of 12-15 year olds can save so many lost days of school, infections and associated transmission, they recommended vaccination to the government, but leaving the final decision to politicians.
Now that covid-19 vaccination of children in the UK is starting, it is essential that the legal basis of consent for a medical intervention in this group are well understood by parents, carers, health professionals—and most importantly by children. Teenagers who are aged 16 or 17 are deemed under English law to be able to give their own consent for vaccination. But what about 12-15 year olds?
Ideally, for children who are aged 12-15, covid-19 vaccination would be given with the approval and support of their parents. This is likely to improve children’s confidence in covid-19 vaccines, and help ensure a high and rapid take-up of vaccination. With the vaccine programme due to start in schools before the end of September, parents are being sent out consent forms, along with NHS information leaflets. Explaining such a finely balanced decision in child friendly terms will be challenging. A survey by the UK Office for National Statistics reported that around 90% of parents were in favour of vaccinating children. Surveys also show good confidence in covid-19 vaccines among children and young adults (but usually at a lower level than among older people).
But despite high overall support for covid-19 vaccination, there will be families where children and parents may have very differing opinions about its risks and benefits. For example, some parents may be strongly opposed to covid-19 vaccination, but their child may have a different view. The opposite situation is also possible whereby the parents are in favour of vaccination but the child is opposed to vaccination.
In such circumstances, the NHS and the responsible clinicians have to decide if the child is competent to make their own decision about covid-19 vaccination. This is known as Gillick competence following a court case in the 1980s between Ms Victoria Gillick and the NHS about consent to treatment for children under 16. The court case eventually made its way to the House of Lords, which ruled that “As a matter of Law, the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.” The ruling is valid in England and Wales.
Whether a child is Gillick competent is assessed using criteria such as the age of the child, their understanding of the treatment (both benefits and risks) and their ability to explain their views about the treatment. If deemed to be Gillick competent, the child can make their own decision about a medical intervention such as covid-19 vaccination.
There may also be situations in which two parents disagree about covid-19 vaccination. If the child is not Gillick competent, then a decision needs to be made about which parent’s views take priority. In a court case in 2020 where two parents disagreed about vaccination for their children, the Judge ruled that vaccination was in the best interests of the child because this is what the scientific evidence suggests. In the court case, the judge (Mr Justice MacDonald) deferred deciding about any future covid-19 vaccination because of the “early stage reached with respect to the covid-19 vaccination programme.” However, now that vaccination has been approved by the UK government and is supported by bodies such as Public Health England, it is highly likely that a court would rule in favour of covid-19 vaccination where two parents had opposing views.
None of these issues are new, and the current HPV vaccination programme has tested many of the issues surrounding vaccination in this age group already. However, the scale and speed of the covid-19 vaccination may be far more contentious—particularly given the finely balanced risk-benefit profile, the small risks of myocarditis, and the vaccine hesitancy already noted in younger people.
It is important that parents, teachers, and healthcare professionals understand the risk and benefits of covid-19 vaccination for children, so that we can support them in reaching an informed decision. We need to respect the ability of our children, whose lives and education have been so greatly affected and disrupted by the pandemic, to reach their own conclusions given the evidence available. Where there is a disagreement between a child and their parents or legal guardians regarding any medical treatment, healthcare professionals must feel confident in judging Gillick Competence and the issues surrounding capacity to give consent.
Azeem Majeed, Professor of Primary Care and Public Health, Imperial College London, London, UK, Twitter @Azeem_Majeed
Simon Hodes, GP Partner, Watford, UK, Twitter @DrSimonHodes
Stephen Marks, Consultant Paediatric Nephrologist, Great Ormond Street Hospital, London, UK
Competing Interests: We have read and understood the BMJ policy on declaration of interests. AM and SH are GPs and have supported the NHS covid-19 vaccination programme. We have no other competing interests.
Acknowledgements: AM is supported by the NIHR Applied Research Collaboration NW London. The views expressed are those of the authors and not necessarily those of the NHS, the NIHR or the Department of Health and Social Care.
This article was first published in BMJ Opinion.