Covid-19 vaccinations for 12 to 16-year-olds: The law has recognised young people’s competence to consent for 36 years

By David Woolmer, medical negligence solicitor at Irwin Mitchell

On 29 July, the Joint Committee on Vaccination and Immunisation (JCVI) considered the risks and benefits of providing covid-19 vaccinations to 12 to 17-year-olds. It concluded that:

• All 16 to 17-year-olds should be offered a first dose of the Pfizer vaccine.
• All 12 to 15-year-olds with specific underlying health conditions which put them at increased risk of severe infection should be offered two doses of the Pfizer vaccine.
• All young people aged 12 and over who share a household with immunosuppressed persons should be offered two doses of the Pfizer vaccine.
• Further advice on offering vaccines to any other 12 to 15-year-olds would be forthcoming as more data emerges.

In addition, the JCVI stated: "In all instances, the offer of vaccination to children and young people must be accompanied by appropriate information to enable children and young people, and those with parental responsibility, to be adequately appraised of the potential harms and benefits of vaccination as part of informed consent prior to vaccination."

Medical treatment and the law

The law is clear that any medical treatment requires adequate informed consent, absent which it amounts to an assault.  In an emergency – such as treatment required to preserve life or health in an unconscious patient – the general rule provides assumed consent to that which is reasonably required in the patient’s best interests. 

A vaccination programme such as for Covid-19 would not amount to ‘emergency treatment’ and consent must therefore be obtained before a vaccine dose is administered. 

Law recognises young people's competence to make treatment decisions

Whilst many parents will assume that it is their decision on whether their 12 to 15-year-olds have medical treatment, the law has long recognised a young person’s competence to make their own treatment decisions.

It is confirmed by statute that young adults aged 16 to 18 can give valid consent to medical and dental treatment.  And in 1985 the House of Lords handed down the seminal judgment in Gillick v West Norfolk and Wisbech AHA, a case involving a mother seeking to prevent her five daughters, all aged under 16, being prescribed any contraception or abortion treatment without parental consent; one of whom sought and received contraceptive advice from a local doctor.  

The Court held that: "Parental right yields to the child’s right to make [their] own decisions when [the child] reaches a sufficient understanding and intelligence to be capable of making up [their] own mind on the matter requiring decision."

Lord Fraser additionally set out guidelines which will assist clinicians in determining whether consent can be validly given, stating: "The doctor will, in my opinion, be justified in proceeding without the parents' consent or even knowledge provided he is satisfied on the following matters:

1. that the girl (although under 16 years of age) will understand his advice;
2. that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice
3. that she is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment
4. that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;
5. that her best interests require him to give her contraceptive advice, treatment or both without the parental consent.

What the application of Gillick competence means

Whilst Gillick related to contraception, the wide application of ‘Gillick competence’ is clear; should the JCVI and respective Chief Medical Officers recommend vaccination to young people aged 12 to 15, they are perfectly able to consent even where this is expressly against parental wishes, if the relevant tests are met.

The Court additionally have wardship jurisdiction in respect of younger children, those not considered ‘Gillick competent’ and even in authorising treatment against the wishes of a ‘Gillick competent’ child.

Find out more about Irwin Mitchell's expertise in supporting patients at our dedicated medical negligence section.

COVID-19: 12 to 15-year-olds to get 'final say' over COVID jab if disagreement with parent occurs”