Guide to children’s participation in decisions about their health
Relevant domestic law(s) in Council of Europe member states
There are substantial differences across Council of Europe member States in the way children’s right to participate in decisions regarding their health is reflected in law and interpreted.
The right to consent
To start with, the statutory age at which children can provide their consent varies from 12 to 18 years.
Domestic legislations differ as to the way they consider the age criteria:
Age of consent is the same as the age of legal majority
This is the case for instance in France, Italy and the Slovak Republic, where, as a general rule, all interventions on a younger child require the prior authorisation from their legal representatives.
The law may provide for special circumstances where the obligation to obtain the authorisation from legal representatives may be lifted. For example, French law provides that healthcare professionals do not have to obtain the parents’ or guardian’s authorisation when the child expressly refuses their consultation, in circumstances where the concerned treatments are necessary to safeguard the health of the child. In Monaco, health professionals can be exempted from obtaining the authorization of legal representatives if the child refuses their consultation for the medical acts or treatments that can be carried out anonymously according to legal provisions in force.
Children who have not reached the age of legal majority may give their consent from a specific fixed age that is below that of legal majority
In Austria and Latvia, it is assumed that, as a general rule, a child of 14 years is capable of making decisions. Age of consent is 15 in Denmark and Slovenia, 16 in Bulgaria, Ireland, the Netherlands, Norway, and Portugal. Dutch law recognizes that in some circumstances, it is however possible to carry out a procedure on a younger patient (aged 12 to 16) without the authorization of their legal representative, notably in cases where it is necessary to avoid serious harm to the patient.
National laws sometimes provide for exceptions to the general rule of consent. For example, Austrian law provides that, in case a child capable of making decisions gives their consent to a medical treatment which normally induces severe and enduring physical or psychological damage, such medical treatment may only be administered if the legal representative gives his consent as well. Latvian law states that if a patient aged 14-18 refuses to give consent to medical treatment, but the physicians deem that the medical treatment is in the interests of this patient, the consent to the medical treatment shall be given by the lawful representative of the minor patient.
In Ukraine, children from 14 have the right to choose a doctor and treatments according to the doctor’s recommendation. Medical treatment shall be provided upon their written consent as well as the authorisation of their legal representative. Similarly in Poland, a child’s consent is necessary from age 16 but is not sufficient, and the authorization from the legal representative(s) is also required. In the cases of research or transplant, the age of consent is lowered to 13 years. In cases of conflicting opinions, there are various rules that require the authorization of a judge.
Consent is not age dependent
Children who have not reached the age at which they may give their (unconditional) consent can nevertheless provide valid consent if they are deemed mature and competent to do so in relation to the nature of the health issue(s) at hand. In this respect, the notion of children’s “competency” has grown in importance and is reflected in some national legislations – for instance in the UK - where children under the general age of consent (age at which the age to consent is unconditional) can be granted the right to consent if they are found to be “competent”, i.e. mature enough to decide for themselves and not want their parents involved. This requires professionals to assess competency.
The right to receive information and/or to express a view
As stated already, according to the UN Convention, all children have the right to receive appropriate information and to express their views. The Convention makes no distinction based on age.
Again, domestic legislations reflect this differently:
Children of all ages have the right to be informed and to express their view
This is the case in Italy, Belgium, the Czech Republic, Denmark, France, Finland, Germany, Hungary, Monaco, and The Netherlands, where healthcare professionals must provide information to all children and seek their opinion, in a manner that is adapted to the capacities of the children.
This right is sometimes subject to the evaluation of the degree of maturity or of the capacities or of the level of development of the child, but not age.
Children for a certain age have the right to be informed and to express their view
This is the situation in Austria, Bulgaria, Ireland, Norway, Poland, Portugal. The age varies from 7 to 16 years (and the age criteria is sometimes combined with different conditions and legal consequences). In Norway, a child has the right to receive information and give their opinion from 7 years of age, and from a younger age if the child is able to form their own opinion. From age 12, a child has the right to refuse to inform parents about their health under certain circumstances.
The law is not explicit
Some domestic legislations do not refer to the right of children to receive information, and/or to participate in decision-making, in the area of healthcare specifically.
On biomedial research
National legislations of Member States generally reflect the fact that, in research settings, the refusal of a child to participate may not be overruled.