Written answers
Tuesday, 24 January 2012
Department of Health
Medical Consent
9:00 pm
Seán Fleming (Laois-Offaly, Fianna Fail)
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Question 654: To ask the Minister for Health if the consent of both guardians or parents is required when making a medical decision in the case of a child born within a marriage. [3743/12]
James Reilly (Dublin North, Fine Gael)
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The issue of consent for the treatment of children is not governed by specific legislation. What is required in a given situation falls to be determined on the basis of the facts of an individual case. The age of the child is also relevant with this issue being provided for in the Non-Fatal Offences Against the Person Act 1997 for children over 16 years.
The 2006 HSE guidelines (Guidelines in relation to obtaining consent to Clinical Treatment in an Acute Hospital setting) state: "Legally, the consent of only one parent is necessary. The other parent does not have a veto, however best practice suggests the consent from both parents is preferred". In addition, the guidelines state: "If the parents of a child are legally separated, either parent can consent to medical treatment. However, if the Court, in dealing with the legal separation conferred sole custody on one parent, a condition or direction would normally attach with regard to medical treatment for the child."
Comments
Cathal Garvey
Posted on 20 Feb 2012 7:14 pm (Report this comment)
The Minister claims that 'If the parents of a child are legally separated, either parent can consent to medical treatment. However, if the Court, in dealing with the legal separation conferred sole custody on one parent, a condition or direction would normally attach with regard to medical treatment for the child.'
However, in the recent High Court case UV. -v- VU. (http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef30...), Mac Menamin J. stated that "I take the view that very great weight should be attached to the views of the custodial parent, but there can be no actual presumption that the views of that parent should hold sway with a court.
Cathal Garvey
Posted on 31 Jan 2012 2:30 am (Report this comment)
The Minister is wrong in referring to the guidelines from 2006 as they have been superseded by the guidelines issued in 2009 http://www.hse.ie/eng/services/Publications/services/Childre... which state that "Consent of both Guardians is required for treatment/service unless one guardian is not contactable or indicates that they do not wish to be consulted or that they wish the custodial guardian to make any necessary decisions on their behalf".
In fact, "New guidance is being developed and legal advice has been sought by the HSE, following concern over a lack of consistency with regard to the issue of consent from separated parents between national guidelines developed by the HSE and those being operated by individual hospitals at local level.
See http://www.imt.ie/news/latest-news/2011/07/guidance-now-bein...