THE NEW government has been urged to clarify the legal position on the ability of health professionals to provide medical treatment to teenagers in the absence of parental consent, even though the children may be old enough to consent to treatment.
The call was made by Dr Ursula Kilkelly of the Faculty of Law at UCC who pointed out that some considerable confusion exists because while children can consent to medical treatment at the age of 16, the Constitution confers rights on parents until they reach 18.
According to Dr Kilkelly, while the area of consent specifically to medical treatment remains vague, the issue appears even more fraught for health professionals since a Supreme Court judgment in 2006 in the case of McK vs The Information Commissioner.
The case centred on a decision by the Information Commissioner refusing to make medical records available to the father of a teenage girl, in accordance with the wishes of the girl and her guardian, which the father subsequently appealed to the High Court which ruled in his favour.
The Information Commissioner appealed the case to the Supreme Court which held the Information Commissioner had erred in refusing the father access to the records, effectively conferring rights on the parent to the medical records of his daughter who was not yet 18.
Dr Kilkelly said that while the case relates to medical records rather than medical treatment, it does create uncertainty for health professionals who have obtained the consent of a 16 or 17 year old for medical treatment but do not have the consent of their parents.
“The McK case clearly suggests that parents have rights in respect of medical information with regard to children even though a child over the age of 16 has the autonomy to consent to medical treatment in their own right without reference to anybody,” she said.
“It raises the question whether a health professional can go ahead with a procedure in the absence of parental consent when the child wants it. It would be a brave professional who would go ahead regardless, particularly in a sensitive area like contraception or counselling.”
Dr Kilkelly said the Law Reform Commission had looked at the issue and proposed a model upon which this might be legislated, and suggested that legislation to address the issue might be included as part of any forthcoming referendum on children’s rights.
