ABSTRACT
Clearly, without such consent, the crime of battery would be committed and any healthcare professional who touched their patient would also be liable in tort for trespass to the person.
Although a child is a person who has been born (as opposed to a fetus in utero), but under the age of 18, consent to treatment of a child aged 16 is as effective as if she or he were an adult, under s 8 of the Family Law Reform Act 1969. ‘Treatment’ includes diagnosis and procedures such as the administration of anaesthetics which are ancillary to treatment (the Gillick case and Gillick statutory provisions in the Children Act 1989: see below). Case law in the mid 1980s and 1990s has established the concept of ‘Gillick competence’: a level of maturity, as ascertained by a court, possessed by a child ‘of sufficient age and understanding’ to make its own decisions. Lord Donaldson MR in Re W mentioned the ‘flak jacket’ of consent to protect healthcare professionals from any liability for assault or battery.
