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Children’s clinicians regularly observe their patients as they embark on adulthood. It is not uncommon to encounter parents who care for their incapacitated adult child. For children aged 16–17 years who lack capacity to make medical decisions (and who will remain forever incapacitated) their forthcoming majority brings with it, for their parents, the uncertainty of who will make those decisions. So it is not unusual to confront parents’ perplexity when told that their authority as a decision maker for their child, embodied in their parental responsibility, evaporates on the eighteenth birthday.
In most cases, there can be little doubt that the parents have throughout their incapacitated offspring’s life provided the best possible care, allowing him or her to be given every opportunity to blossom and grow. Understandably, parents in this situation may feel best placed to make the most informed decisions for their child both before and after the advent of adulthood. To what extent is enduring parental influence recognised in English law?
The Mental Capacity Act 2005 s5 provides a defence to liability for a person (including a clinician) who conforms to the Act when providing care or treatment in the best interests of the incapacitated patient. This defence is pervaded by the notions of practicability, appropriateness and reasonableness. In terms of care, this ensures that the care-giving parent, while acting lawfully in their adult child’s best interests, is able to proceed in the absence of consent. However, this provides no authority …
Competing interests None declared.
Provenance and peer review Commissioned; internally peer reviewed.