Consent and Delegation of Authority

Decisions about delegation of authority must be made within the context of:

• The young person’s Plan; and
• The legal framework for parental responsibility in the Children Act 1989.

Where a particular decision is not delegated to the registered person and rests with the local authority, there should be a clear system in place for ensuring that decisions can be made by the appropriate person in a timely way, with arrangements in place to cover sickness and annual leave, and details of these arrangements should be provided to the Service.

The young person’s parents do not lose Parental Responsibility when the child is Looked After.

There are some decisions where the law prevents authority being delegated to a person without parental responsibility. These include applying for a passport (a child aged 16 or over who has the mental capacity to do so can apply for their own passport). Where there is a Care Order, the child cannot be removed from the UK for more than a month without written consent of everyone with parental responsibility or the leave of the Court. Decisions regarding changes to the young person’s surname or religion would also require the exercise of parental responsibility for any child/young person under the age of 18.

See also Mental Capacity Act

Any decision about delegation of authority must consider the views of the young person and follow the young person’s wishes. A young person may have capacity to make the decision themselves. Young people do have a right to make an unwise decision if the following steps have been followed.

The following questions should be considered

• Can the young person understand the question being asked of them?
• Do they appreciate the options open to them?
• Can they weigh up the pros and cons of each option?
• Can they express a clear personal view on the matter as distinct from repeating what someone else thinks they should do? 
• Can they be reasonably consistent in their view on the matter, or are they constantly changing their mind?
• If there are any doubts about capacity (for a young person over the age of 16) then a Mental Capacity Act assessment should be carried out by the relevant professional.

Please note: regardless of a young person’s competence/capacity, some decisions cannot be made until a child/young person reaches a certain age, for example, tattoos are not permitted for a person under age 18.

Decisions about the care of a Looked After young person are likely to fall into three broad areas:

• Day-to-day decisions, e.g., routine decisions about health/hygiene, education, leisure activities;
• Routine but longer-term decisions, e.g. college choice;
• Significant events, e.g., surgery.

Day-to-day Decisions

All decisions in this category should generally be delegated to the registered person (and/or the young person if they can take any of these decisions themselves). Any exceptions and reasons for this should be set out in the Tailored Support Plan and within their Care/Pathway Plan.

Routine but Longer Term Decisions

This category of decisions will require skilled partnership work to involve the relevant people. The Tailored Support or Care/Pathway Plan will be an important factor in determining who should be involved in the decision.

Significant Events

This category of decisions is likely to be more serious and far reaching. Where the young person is under a Care Order or Emergency Protection Order, decisions may be made by the birth parents or others with parental responsibility, which includes the local authority, depending on the decision and the circumstances. Such decisions should, however, always take account of the wishes of the young person and the young person’s capacity to make this decision themselves.

The Education Act 1996 defines 'parent' as including a person who has care of the young person in question. It is the allocated social worker will fulfil this role.

Young people can sometimes apply in their own right for a place at sixth form or Further Education college. If they are of compulsory school age their application must also be signed by the allocated social worker confirming their approval of the application. Once they are over compulsory school age, they can apply in their own right without the need for parental consent. Young people can also appeal against the refusal of a sixth form place along these lines.

Young people aged 16 or 17 are presumed to be capable of consenting to their own medical treatment, provided the consent is given voluntarily and they are appropriately informed regarding the particular intervention. If the young person is capable of giving valid consent, then it is not legally necessary to obtain consent from a person with parental responsibility. It is, however, good practice to involve the young person's family in the decision-making process unless the young person specifically wishes to exclude them.

Refusal of consent

Where a young person of 16 or 17 who could consent to treatment, refuses treatment, it is possible that such a refusal could be overruled by a court if it would in all probability lead to the death of the child/young person or to severe permanent injury. Legal advice must be sought.

Where necessary, the courts can overrule a refusal to consent by a person with parental responsibility.

For further information, see Department of Health and Social Care Reference guide to consent for examination or treatment, second edition 2009. 

Consent to Life-Ending Withdrawal of Medical Support

The High Court in Herefordshire Council –v- M and F and others (Re YY (Children: Conduct of the Local Authority)) stated that the making of a decision which is likely to result in the death of a Child In Care (such as the withdrawal of life support treatment) comes within a small category of cases where, notwithstanding the local authority's powers to exercise corporate parental responsibility under section 33(3)(b) Children Act 1989, the consequences of the exercise of that particular act of parental responsibility are so profound and have such an impact on the child, and/or the Article 8 rights of other parties who share parental responsibility, that the matter must come before the High Court for its consideration and determination. In such cases, therefore, urgent legal advice must be sought, even if all parties are in agreement that medical treatment should be withdrawn.

Each young person’s Tailored Support Plan must make clear who has the authority to take decisions in key areas of the young person’s day-to-day life, including:

• Medical or dental treatment;
• Education and training;
• Leisure and home life;
• Faith and religious observance;
• Use of social media; and
• Any other areas of decision-making considered relevant with respect to the particular young person.

The person(s) with the authority to take a particular decision or give a particular consent must be clearly named on the Tailored Support Plan and any associated actions (e.g. a requirement for staff to notify the social worker that a particular decision has been made) should be clearly set out in the Tailored Support Plan. Tailored Support Plans are likely to be most effective when drawn up in a Support Planning meeting which involves everyone concerned.

The Tailored Support Plan is reviewed alongside the Care/Pathway Plan 6 months or sooner if there is a change in circumstances.

Good Practice Guidance

• General Medical Council guidance on consent for children; 
• British Medical Association toolkit on consent decisions for children.