By Invitation: Reforming Informed Consent in Paediatric Care
As part of our Medical Law series, Raising the Bar invites Sanjay Roy Kalai from the Raffles Law Society to present his arguments for why paediatric consent in Singapore is in need of reform.
Written by Sanjay Roy Kalai, Raffles Law Society
In this By Invitation Article, find out…
Under what circumstances can parental consent be bypassed in medical law?
Can medical professionals balance parental consent with a minor’s autonomy?
How could Singapore reform its approach towards paediatric consent?
A 15-year-old anxiously waits at a doctor’s office, having decided by himself to proceed with treatment. Even though his doctor agrees that he understands the risks associated with the procedure fully, his parents refuse to consent. Can his decision stand even without their approval? Whose voice matters more — and when is a minor actually given the power to decide for themselves?
What is Informed Consent in Medical Law?
Informed consent is undeniably a crucial part of medical ethics and law today, as it mandates respect for patient autonomy.
According to the Singapore Medical Council’s Ethical Code and Ethical Guidelines (ECEG), “An important part of patient autonomy involves ensuring that patients give their valid consent (if they are able to do so) to any treatment or procedure.”
This clearly affirms that medical decisions should not simply be imposed on patients without their voluntary and informed consent.
The Singapore Medical Council’s ECEG further goes on to instruct doctors to “treat patients with honesty, dignity, respect and consideration, upholding their right to be adequately informed and their right to self-determination.”
Despite the ubiquity of this principle, its application to paediatric patients still remains deeply convoluted and far less straightforward in Singapore. Although it is incontrovertible that all doctors have an ethical duty to act in their patient’s best interests, it is not clear as to what guidelines should be followed should parental consent conflict with the minor's wishes or even if the minor demonstrates the capability to make their own decisions.
When Can Patients Consent For Themselves?
In Singapore, a patient’s ability to give valid consent depends on both their age and capacity. Under Singapore's general legal framework, individuals under 21 are considered minors, although in some specific medical situations, there are exceptions.
For example, the Human Organ Transplant Act, the Medical (Therapy, Education and Research) Act, and the Advance Medical Directive Act allow individuals aged 18 and above to make independent medical decisions in specific contexts.
This shows that in the medical field, the threshold for a paediatric patient to give valid consent may be lower than the age of majority, that is, 21 years old. Additionally, according to the Singapore Medical Council’s ECEG, when dealing with paediatric patients, consent must first be obtained from a parent or legal guardian. This illustrates a legal framework where the right to give valid consent primarily lies with the parent or guardian, and the minor’s role is more or less secondary.
However, section 92 of the Penal Code provides that any person can act without consent if it is done in good faith for the benefit of another, which would include medical emergencies. Although this is not specifically directed at doctors, illustration (c) of section 92 explicitly contemplates medical treatment scenarios, such as performing surgery when the patient is unconscious and unable to give consent.
Is Parental Consent Always Superior to the Child’s Consent?
Section 4.2.2 of the ECEG suggests that the minor’s understanding is not the key factor when it comes to consent, as it is only considered “as far as possible.” Some might argue that this approach is in fact valid because parents should have better awareness and understanding than a minor on what is best for them. However, this also means that even when a minor demonstrates clear understanding and maturity, their wishes can still be overridden by their parents.
Moreover, although the ECEG claims to prioritise ethics regarding patient care, it currently does not contain any clear obligations or regulations to respect a minor’s wishes in non-emergency situations. Instead, the current framework shifts the decision-making process to an adult, whether it be the parent or doctor, with limited to no acknowledgement of the minor’s own wishes. Therefore, for minors aged fourteen to sixteen, there is not really any statutory clarity on their ability to provide valid consent even if they demonstrate the capacity to do so.
What are the Singaporean Courts’ Position on the Priority of Paediatric Consent?
Currently, Singaporean Courts tend to apply the Gillick competence principle, which allows minors to consent if they demonstrate sufficient understanding and maturity. Alternatively, section 89 of the Penal Code may be used, which mandates parents or legal guardians to give consent in place of the minor.
Nevertheless, Justice Choo Han Teck mentions in Re LP [2006] SGHC 13 that, “Where doctors do not have a clear and express consent, [...] their only course is to act in the best interests of the patient.”
This principle is also reinforced by the ECEG, and illustrated in a 2023 Parliamentary reply, where the Ministry of Health stated “if a parent or legal guardian objects to a procedure that is medically necessary, the doctor must act in the best interest of the child and not the parent or legal guardian.”
Case Study: VYG v VYH [2021] SGFC 124
A recent notable local case regarding informed consent in paediatric patients was the Family Court’s decision in VYG v VYH [2021] SGFC 124. This case arose from a dispute between divorced parents on whether their 16-year-old daughter should receive the coronavirus vaccination. While the father supported the administering of the vaccine, the mother objected. Eventually, the Court held that the daughter demonstrated sufficient maturity and understanding and allowed the second dose to proceed, making it the first Singaporean case to legally and officially recognise the Gillick competence principle. To that end, VYG v VYH was unequivocally an important step in recognising that consent should be based not only on age, but also on the minor’s actual capacity and maturity level.
However, the Court’s decision seemed to be influenced not only by the child’s maturity, but also by the presence of one of the parent’s consent, with the Court acknowledging that parental rights remain important. Further, as Hillary Chua’s article in the Singapore Journal of Legal Studies notes, there is still much ambiguity around a minor’s right to refuse treatment, especially those aged 14 to 16. Reform is needed to clarify not only when minors may consent, but also when that consent should be prioritised over parental wishes especially when a minor demonstrates clear, informed, and autonomous understanding.
How Should Medical Professionals Navigate Paediatric Consent?
Balancing the Parents’ Wishes and the Minor’s Capacity
To say the least, this tension puts medical professionals in quite a predicament as they will have to account for both parental authority and the ethical obligation to respect a minor’s rights and own wishes. Additionally, with the Healthcare Services Act 2020 now requiring all medical institutions to have proper consent systems aligned with the ECEG, these professional obligations are not merely ethical but also legal.
Such consent systems refer to medical institutional procedures ensuring that consent is obtained ethically by confirming patient understanding, voluntariness, and capacity, instead of strictly following an inflexible age-based rule.
While these are not the same as the Gillick competence principle, this framework similarly emphasises that consent should be delivered in a way that is appropriate to the patient’s capacity. This delicate balance between acknowledging what parents think is best, and determining what actually is best for the child in terms of welfare, is increasingly recognised in legal reasoning, as exemplified by VYG v VYH.
Legal Precedents for Bypassing Parental Consent
It is also worth noting that in dire emergency medical situations, the current legal system in Singapore already allows for parental consent to be bypassed in limited circumstances. This empowers doctors to act against parental wishes when medically necessary, highlighting that parental consent is not absolute and that the patient’s best interests are more important. This inconsistency in the current law can hence be used to argue for reform in non-emergency situations where the minor is competent and fully understands the situation at hand.
It is quite paradoxical that Singapore’s current legal system hesitates to recognise the wishes of a fully competent and sound minor aside from such dire circumstances. Seeing that the law already allows doctors to override parents’ preferences when a non-competent child’s life is at stake, when a competent minor who can give informed and sound decisions is involved, even in non-urgent situations, their decisions should be considered seriously and to a large extent.
For instance, under the Termination of Pregnancy Act, a pregnant minor can actually legally consent to an abortion without parental approval.
Section 5 of the Act criminalises coercion by others, stating “any person who, by means of coercion or intimidation, compels or induces a pregnant woman against her will to undergo treatment to terminate pregnancy shall be guilty of an offence”.
This implies that the pregnant woman’s consent, regardless of her age, is prioritised and even protected by law. In fact, as Terry Kaan notes in his article At the Beginning of Life, the statutory framework goes even further, stating that parental consent is not only unnecessary but must not even be considered in the decision.
Although the statute does not explicitly state that this applies specifically to minors, it clearly disregards parental involvement and actively protects minors from external interference, suggesting that consent comes solely from the pregnant patient herself. Coupled with the judgement in VYG v VYH, Singaporean Courts may already be moving towards recognising minor autonomy in medical law.
How Could A Paediatric Consent Framework Look Like?
As such, the issue is not just about what circumstances parental consent should be sufficient in, but really about how doctors can follow a legal framework to decide when parental consent can be overridden. Currently, Singapore’s framework only recognises exceptions for minors and those lacking capacity in extreme situations.
Thus, reform should try and solve this apparent legal-ethical gap by codifying the Gillick competence principle. Singapore can consider mandating systematic competence assessments for paediatric patients in situations where the child and legal guardian have contrasting views, with this standard test allowing for the efficient and effective assessment of a minor’s competence. Such an idea has been implemented before — the United Kingdom has a model which allows children under the age of 16 to consent to their own medical treatment if they are found to be competent. This helps ensure that competent minors’ rights are taken into account not just in emergencies, but also in standard medical practice.
Yet, Singapore should not simply abandon the current legal structures defined by the ECEG and the Penal Code. Instead, we should try to incorporate more flexibility within existing legislature. This can be achieved through the creation of an updated ECEG that recognises the “evolving capacity and maturity” of minors, and provides guidelines on when their consent can be considered sufficient over that of their parents. This would help Singaporean law from largely depending on age as a deciding factor.
After all, it is inevitable that not all sixteen-year-olds will be equally mature, and some younger children may even be more mature than expected. Hence, competence should not be based on age alone, but carefully assessed on a case-by-case basis, taking into account both the minor’s ability to fully understand the procedures and risks involved in a treatment, as well as their mental state.
Conclusion
Ultimately, empowering minors does not mean completely undermining parental authority. Rather, it affirms that a minor’s competence, not age alone, should be the legal basis for valid consent. The real challenge now is for Singapore to craft a written legal framework that gives this principle a practical and consistent effect.
Disclaimer: The views expressed in this opinion article are those of the author(s), and do not necessarily reflect the views of any affiliated organisations, including the Singapore Introductory Mooting Programme.