107158 Part a) The main legal issue here concerns whether consent is required from both parents for a non-Gillick competent minor to undergo a surgical procedure that is not altogether without risk and which will not confer any direct benefit on her health. Beth at 4 years old is not likely to understand the full implications of a bone marrow donation hence by this criteria she is not likely to be “Gillick competent”; and so cannot give valid consent. This issue must be considered here because if she had been Gillick competent then it would be less likely that a refusal by one parent would be effective in negating her consent. The legal age of consent is 18. Below this age a person is classed as a child. However effectively the age of consent is 16 due to the operation of s.8(1) Family Law Reform Act 1969. Beth is therefore classed as an incompetent minor to whom the Children Act 1989 stipulates that a parent with “parental responsibility” can give consent (albeit proxy consent), that is unless that “parental responsibility” has been removed or is restricted; s.33(3) and (4). We are told Caroline has parental responsibility for Beth and we are told that Caroline agrees to the donation. By inference there has been an offer of treatment by the doctor(s). In law consent by a parent with parental responsibility is adequate consent. Generally it is irrelevant, in law, that David withholds his consent. However, in this situation the disputed procedure that Beth is to undergo is not intended to confer any physical advantage to her but may cause her some psychological stress and also carries a minor degree of risk. Clearly the Trust has reservations about going ahead when one parent objects and legal writing confirms that this view is unlikely to be unusual for this procedure. However once consent is given by one person the principle stands that it is not removed by someone else. This refusal of the Trust to allow the procedure might be taken up to see if a court would direct the trust to go ahead. Where there is dispute about whether a procedure should take place and in situations where there is no parent with parental responsibility who will give consent the court may make a decision in one of two ways. Firstly the “wardship jurisdiction” could be used as described by Lord Donaldson MR in Re C. The child is made a ward of court and the court makes the decision in the child’s best interests. The court would take into account all the relevant facts of the case and decide upon them. Decisions vary greatly with the facts of the case. The Court of Appeal refused to follow the parents’ wishes where the parents did not wish conjoined twins to be separated killing one of them in Re M and J.
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