Consent by children: considerations when assessing maturity and mental capacity

Abstract

Health care providers are required to know and apply legal, ethical and professional requirements when obtaining consent from children. Central to obtaining consent from children is the ability to assess and arrive at a clinical judgement about the child’s maturity and mental capacity. Mental capacity or broadly the ability to understand, reflect, conclude and convey a free choice concerning health matters, is a requirement for valid consent. Many circumstances related to children, health care providers, parents and the treatment decision could influence a child’s ability to make decisions. During the assessment of a child’s maturity and mental capacity, circumstances that influence their mental capacity should also be explored and considered.

Keywords:

• children
• consent
• maturity
• mental capacity

Introduction

Health care providers (HCPs) are required to know and apply legal, ethical and professional requirements when obtaining consent from children.¹ Central to obtaining consent from children is the ability to assess and arrive at a clinical judgement about a child’s maturity and mental capacity to give consent.^2,3 These assessments are a great responsibility⁴ that require not only knowledge of the appropriate legislation but also the ability to perform maturity and mental capacity assessments on children of various ages.

Performing such assessments are challenging as they are time-consuming.³ Moreover, HCPs might be uncomfortable with communicating with children or not skilled in assessing their cognitive development or mental health.⁴ Currently there are no clear guidelines in the Children’s Act (2005)⁵ or its regulations to assist HCPs with maturity and mental capacity assessments.³ In addition, many HCPs have not been adequately prepared to perform these assessments.¹ These current limitations might lead to consent laws being implemented inconsistently³ as well as the rights of children to be involved in decision-making being violated. This article outlines the consent requirements and proposes considerations for health care providers to determine whether the child is mature enough and has the mental capacity to consent to health care services.

Consent requirements

Valid consent must be given by a person capable in law to do so, must be informed, unambiguous, comprehensive and voluntary.^6–8 Being capable to consent in legal terms means that the person has reached the age threshold stipulated in the law and has decisional capacity.⁸ The age of full decisional capacity in South Africa is 18 years.⁵ Further specific threshold ages have been stipulated in Sections 129–134 of the Children’s Act⁵ for consent to medical treatment, surgical operations, HIV testing, disclosure of HIV positive status and access to contraceptives.^3,5,8 In addition to the age threshold, evidence of sufficient maturity and mental capacity³ and other conditions are also included (refer to Table 1).

Table 1: Threshold ages and conditions pertaining to children’s consent

Circumstances	Age threshold	Conditions
Medical treatment	12 and older	Sufficient maturity and the mental capacity to understand the benefits, risks, and social and other implications of the treatment.
Surgical operation	12 and older	Sufficient maturity and the mental capacity to understand the benefits, risks, and social and other implications of the surgical operation.
		Assistance of parent/guardian.
HIV test	12 and older	Pre- and post-test counselling.
		Confidentiality of status.
	Younger than 12	Sufficient maturity to understand the benefits, risks and social implications of the test.
		Pre- and post-test counselling.
		Confidentiality of status.
Contraception	12 and older	Proper medical advice.
		Medical examination to determine whether there are any medical reasons why a specific contraceptive should not be provided to the child.
		Confidentiality (subject to reporting obligations in the Act).
Termination of Pregnancy (TOP)	No age limit	Minors must be advised to consult with parent or guardian, family member or friend; however, a TOP should not be denied on the basis of the child’s choice not to consult.
		Reporting obligations in the Act apply.

The Children’s Institute of the University of Cape Town’s 5th edition of the Children’s Act Guide for Health Professionals³ outlines amongst other matters, the consent provisions in the Children’s Act,⁵ National Health Act,⁶ Choice on Termination of Pregnancy Act,^3,8,9 Mental Health Care Act,¹⁰ Prevention of and Treatment for Substance Abuse Act¹¹ and Sterilisation Act.¹² For a complete list and explanatory discussion, this document can be consulted.³ Table 1 outlines some of the threshold ages and other conditions included in the Children’s Act (2005)⁵ and the Choice on Termination of Pregnancy Act (1996).⁹

Maturity and mental capacity

Children’s maturity and mental capacity should be determined in all cases where their consent is obtained and not only when mentioned in the Acts^5,9 (as reflected in italics in Table 1), as capacity is a requirement for valid consent.^3,13,14

Mental capacity is also referred to as decisional capacity.⁸ The Medical Protection Society⁸ describes decisional capacity as the ability to understand relevant information, appreciate the situation and its consequences, and reason about treatment options. Applebaum,¹⁴ as well as Geist and Opler⁴ add a fourth component, namely the ability to communicate a choice as summarised in Table 2. The Canadian Paediatric Society¹⁵ proposes that people have decisional capacity when they “… not only have the simple ability to understand, but must actually grasp the purpose of the intervention, the consequences of consent or refusal, the alternatives, and the magnitude and probabilities of harm and benefit”.

Table 2: Mental capacity requirements

Understand relevant information

Reason about treatment options

Appreciate the situation and consequences

Communicate a choice

It is not clear what the Children’s Act⁵ requires with the additional requirement of “sufficient maturity”.¹³ The National Department of Health’s HIV Counselling and Testing (HCT) Policy guidelines¹⁶ specify that children are considered to be sufficiently mature if they can “demonstrate they understand information on HIV testing and can act in accordance with that appreciation”.¹⁶ This description overlaps with that of the criteria for mental capacity. According to this description, cognitive ability determines maturity; however, it should also be appreciated that maturity includes levels of physical, emotional and moral development.

Most research and clinical studies focus on an “understanding-based approach” to decisional capacity. This approach is rooted in traditional understanding of child development.¹⁷ There has also been a great deal of contradiction in research about the age at which a child is capable of making informed decisions with a more recent perspective that various factors should be considered in addition to age.¹⁸

Assessing mental capacity

Many circumstances influence children’s ability to make decisions.¹⁹ These circumstances relate to the child, health care provider, parents, context and the treatment decision itself.^1,3,18,20,21 This focus on multiple circumstances influencing children’s decisional capacity is supported by the National Department of Health’s current HIV counselling and testing policy guidelines that recommend that a child’s age, knowledge, views and personal circumstances should be taken into account when assessing whether he or she is mature enough to consent to an HIV test.¹⁶ Section 7 of the Children’s Act⁵ indicates that age, maturity and stage of development, gender, background, physical and emotional security, intellectual, emotional and cultural development, disability, chronic illness, need for protection and parents’ attitude and capacity must be taken into account when a child’s best interests is considered. These circumstances should therefore also be considered when acting in children’s interests when obtaining their consent.

Children’s age and personal circumstances and experiences

Age

There has been inconsistency and considerable debate in the field of child development about the cognitive abilities of children of various ages. Piaget’s stages of cognitive development²² has often been proposed as a guideline; however, more recent research has evidenced that Piaget underestimated children’s abilities.^20,23 A widely cited study by Weithorn and Campbell measured the competency of healthy children on treatment decisions based on their responses to hypothetical problems.²⁴ They found that by the age of nine, children were sufficiently able to understand simplified health-related information, and by the age of 14 they developed an adult level of understanding based on their ability.²⁴ In contrast, Halpern-Felsher reports on studies that suggest areas of the human brain responsible for decision-making and impulse control continue to develop until the age of 25.¹⁸ There has been a shift in international thinking about decisional capacity away from age to considering each child’s unique circumstances based on their experience and understanding.²⁰

Personal experience

Children with personal experience such as exposure to surgery, illness and hospitalisation, and health care are likely to have a better understanding of health-related matters.^3,20,25

Concurrently, clinicians working with such children should keep in mind that overall, children have less experience as decision-makers.¹⁸

Personal circumstances and experiences which influence the amount of experience children might have in decision-making and taking responsibility for the outcome of that decision should be considered. Minors who are “emancipated”, such as those who live independently from their parents, have their own children, or are married, may be more experienced decision-makers than their peers of the same age.²⁶ Disability and chronic illness increase children’s vulnerability and need for protection and special care as prescribed in the Children’s Act.⁵ However, Alderson proposes that health care providers also consider the fact that hardships associated with disability and illness may increase not only children’s knowledge but also their skills and courage to deal with these hardships.²⁰ Wellesley and Jenkins further suggest that health care providers should not automatically assume that children with learning difficulties are unable to make decisions.²⁷

Health care provider attitude and competence

HCPs should consider their own influence on a child’s decisional capacity. Their beliefs and attitudes about children’s rights, informing and involving children in treatment-related decision-making,^20,28 their own parenting experiences,²⁹ and their competence in sharing information with children²⁰ influence a child’s ability to consent. HCPs should be aware that these attitudes are potentially influenced by their own sociocultural, demographic and religious characteristics.¹ HCPs require a clear understanding of the relevant information, the ability to explain and clarify misconceptions for the children, and the ability to assist them in making a decision. Central to these abilities is the HCP’s ability to communicate with children of all ages^15,17,19 in their language ^3,26 and appropriately support them in making decisions. Jamieson and Lake state: “The onus lies with the health care professional to support the child, and to build the child’s capacity for health decision-making though a process of dialogue”.³⁰

Parental involvement, attitude and support

Parental involvement, attitude and support influence children’s capacity to consent.³ Children who receive warmth and understanding from their parents are more enabled to participate in health care- and treatment-related decisions, meaning that parental support is an important factor influencing a child’s capacity to participate in treatment decisions.^17,25,28

Ironically, children who are in nurturing relationships with their parents are more capable of making autonomous and informed decisions, although they least need this ability as these parents tend to be more open to their children’s perspectives.¹⁷

The complexity, magnitude and circumstances surrounding the diagnostic test, treatment or procedure

The complexity and magnitude of the diagnostic test, medical treatment or surgical procedure influences the level of maturity required by children.²⁷ Different levels of understanding and responsibility are required for different types of treatments. This implies that varying degrees of maturity and level of understanding are required for consent.²⁹

Greater maturity and capacity to consent is required for treatment with serious and long-term consequences and/or greater risk of harm.^15,26,29

Other circumstances that must be considered when capacity is assessed are whether the child is in pain at that time, is fearful (for example of the pain inflicted by a procedure), is tired, or has received medication that might influence his or her ability to understand and reason about the specific health care procedure.²⁷

Conclusion

In accordance with the requirements of the relevant Acts, HCPs have an obligation to determine a child’s maturity and mental capacity when seeking consent. HCP’s must assess children individually and make a judgment call on their ability to give valid consent using the “best interest of the child” principle to guide them.³ In this way, HCPs can ensure the obtainment of children’s legal consent is performed to the letter and in the ethical spirit of the applicable Acts.

This ability requires that HCPs have a sound working knowledge of the legislation governing health services rendered to children, child development and child assessment methodologies. Additionally, HCPs must be able to communicate effectively with children of all ages. During the assessment process, circumstances that influence children’s mental capacity should be explored and considered. When assessing children’s maturity and mental capacity, a one-size-fits-all, or a rigid approach is not suitable and various contextual factors should be taken into account.

It is essential that HCPs reflect on their personal values and attitudes about involving children in decision-making and their ability to assess adequately a child’s evolving mental capacities.³ Health care providers are required to do holistic assessments of children’s personal and social strengths and vulnerabilities, parental support, and personal circumstances.

Even when maturity and mental capacity is not evident, HCPs should listen to the child’s opinions, sensitively consider them and always discuss with the child the actions that will be taken.³

It is necessary to develop a guideline for children’s consent in consultation with health care providers from various areas of speciality, such as experts in health, ethics, law and education, as well as children’s rights activists.⁷ HCPs should also receive adequate education, training and support on the assessment of a child’s maturity and mental capacity. Clearer guidelines supported by adequate training and support will not only protect HCPs from potential litigation but will ensure that children’s protection, provision and participation rights are respected in the process.^31–33

Competing interest

The authors declare they have no financial or personal relationship(s) that may have inappropriately influenced the writing of this article.

Disclaimer

Any opinion, finding, conclusion or recommendation expressed in this material is that of the authors and the National Research Foundation does not accept any liability in this regard.

Author contributions

Both YH (Tshwane University of Technology) and AMT (University of Johannesburg) conceptualised the manuscript, and prepared and revised the draft manuscript.

Acknowledgements

This work is based on research supported by the National Research Foundation.