Minors capable of consenting

The capacity to consent is not bound to a minimum age. This is why the doctor has to examine whether or not children and young people are able to give their consent prior to initiating a treatment. According to the German Federal Court of Justice (Bundesgerichtshof, BGH) a minor’s consent is only legally effective if the scope of the operation is within the minor’s grasp due to his or her mental and moral maturity. As a consequence of this a minor can be capable of giving his or her consent before reaching the age of majority. Nevertheless the decision-making right concerning medical treatments is vested in the legal guardians whilst the minor is still under age. Critics argue that there results a conflict of values because the minor is both capable of giving his or her consent and dependent on the parental care at the same time. It is argued in line with the UN Convention on the Rights of the Child (UNCRC) ratified by the German government that children must be given the opportunity to speak their mind and that their opinion must be considered whenever doing so is appropriate. In pediatric, social-pediatric and child psychological research literature authors hence plead for a concept containing the child giving his or her consent or veto. By analogy with the concept of informed consent which has become a standard procedure in clinical practice whenever it comes to treating adults, children and young people should be involved in their treatment decisions.

UN Convention on the Rights of the Child (UNCRC). Online Version

Dörries, A. (2013): Zustimmung und Veto. Aspekte der Selbstbestimmung im Kindesalter. In: Wiesemann, C. / Simon, A. (Hg.): Patientenautonomie. Theoretische Grundlagen, praktische Anwendungen. Münster: mentis, 180–189. (German)

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