Mar 10, 2023
In the UK, a parent can generally discharge their child from hospital, but there are some important considerations and limitations to be aware of, so please read to the end.
If a child is under the age of 16 and not competent to make their own medical decisions, parents or legal guardians have the legal authority to make decisions about their child’s medical treatment, including the decision to discharge them from hospital. However, if the child is aged 16-17 and is considered competent to make their own medical decisions, they can overrule their parents’ decision.
Additionally, if a child is under a court order or section of the Mental Health Act, their discharge may require the agreement of the responsible clinician or the court, depending on the circumstances.
Everyone involved with the care of the child has a duty to act in the child’s best interest. Problems arise when parents and medical staff disagree on what exactly this means in paractice. It is always best to come to an agreement if at all possible. If the two sides cannot agree, it can get complicated.
The hospital can, via its lawyers, apply to get a court order overriding the wishes of the parents. More likely than not, the judge will find that going with medical advice is in the best interest of the child. This can happen very quickly, i.e. within a day or two but is obviously not instantaneous. In the meantime the hospital has the right to administer life-saving treatment without consent. Such a right has always existed so that doctors can save the lives of unconscious patients without breaking the law.
This means that, theoretically, they can only keep the child against the parents’ wishes if the child is otherwise likely to die or suffer significant harm. This too, of course, can be in dispute and can be interpreted very differently by doctors and parents, especially when parents feel the treatment is actually doing more harm than good.
The right to treat does not mean the right to detain or at least it shouldn’t. Theoretically, a parent can therefore take the child out of hospital in the meantime but may find that in practice they are prevented from doing so either by hospital staff or because staff have called the police. Whether or not staff are acting lawfully at this point, without court order and before the police are called, is a grey area but there is nothing a parent can realistically do about it.
The police certainly do have powers to prevent the child’s removal although this police protection power is limited to 72 hrs. A court order would have to be obtained before the end of that period.
Parents rights to discharge their child when doctors disagree are therefore limited. The law tries to strike a balance between parental rights and the best interest of the child.
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