Infants and young children

In the case of babies and young children, consent must be given by whoever has parental responsibility- this may be the parent(s), a carer or a local authority. Where there is disagreement on the issue of testing among those who hold parental responsibility, it may be necessary to obtain legal advice.

Older children and young adults

In some instances, a young person may wish to have an HIV test without the knowledge of their parent, for example if they are sexually active or have been injecting drugs. ‘Fraser competence’ is the legal framework which states that children under the age of 16 can consent to treatment without parental consent, provided the doctor believes they understand the nature of the treatment. The Fraser judgement has also been extended to HIV testing.

Fraser competence states that:

• The test is whether the child had sufficient understanding and intelligence to enable him or her to understand fully what is proposed.
• Each child must be assessed separately in relation to each different procedure. It follows that a child may be able to consent to some procedures but not to others.
• There is no specific age at which a child becomes competent to consent. This depends on the particular child and on the seriousness and complexity of whatever treatment or procedure is proposed.
• The Fraser test is about capacity, not about the ability of the child to make a choice that other people might consider wise.
• A person who has reached the age of 16 years should be regarded as competent to give consent unless there is evidence to the contrary, as in the case of adults. Competence should be assessed in the same way as it is in adults.
• It is good practice to involve families of 16 and 17 year-olds in the decision-making process unless the young person specifically requests that this should not happen.
• Attempts should be made to persuade them to confide in their families.
• A request from a child under the age of 16 years that the treatment should be kept confidential should be respected unless, in the opinion of the healthcare professional, there are reasonable grounds to suggest that the child is suffering, or is likely to suffer, significant harm as a result.

A young person who attends clinic with a parent and who has requested testing or might be considered to have sufficient understanding to give informed consent should be fully involved in discussions.

Many parents are not aware of these legal issues and the rights of children in consenting to testing. Some parents, for various reasons, may find it unacceptable for their child to make such decisions or be involved in discussions around HIV.