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The minimum age of consent for medical treatments differs across the 28 Member States, depending on the nature of the treatment, the obligations imposed on medical staff regarding the information given to parents, and the need for consent.
In General Comment No. 4, the CRC Committee finds that “every adolescent with a mental disorder has the right to be treated and cared for, as far as possible, in the community in which he or she lives. Where hospitalization or placement in a psychiatric institution is necessary, this decision should be made in accordance with the principle of the best interests of the child. In the event of hospitalization or institutionalization, the patient should be given the maximum possible opportunity to enjoy all his or her rights as recognized under the Convention, including the rights to education and to have access to recreational activities” (para. 25). Concerning placements that entail restriction of movement, the General Comment states that “where appropriate, adolescents should be separated from adults”.
Regarding the minimum age at which a child can be forcibly hospitalised or placed in therapeutic institutions in which they are deprived of their liberty or their movement is restricted, the majority of countries do not establish a minimum age at which a child could be placed in such institutions. Accordingly, such decisions are approached in different ways, depending on the respective roles of the medical personnel, judicial or administrative bodies, as well as the children and their parents.
CRC General Comment No. 4 states that, “In the context of the rights of adolescents to health and development, States parties need to ensure that specific legal provisions are guaranteed under domestic law, including with regard to setting a minimum age for sexual consent, marriage and the possibility of medical treatment without parental consent. These minimum ages should be the same for boys and girls (article 2 of the Convention) and closely reflect the recognition of the status of human beings under 18 years of age as rights holders, in accordance with their evolving capacity, age and maturity”. However, children often face legal, financial and social barriers to access independent and confidential medical advice because of existing minimum age requirements.
The EU Charter of Fundamental Rights protects the right to integrity of all persons, and provides that, in the field of medicine, the free and informed consent of the person concerned is needed (Article 3.2). In its General Comment No. 20, the CRC Committee stressed again that all children who are able to demonstrate sufficient understanding should give voluntary and informed consent for any medical treatment or procedure, whether or not the consent of a parent or guardian is required. It also stresses that even when a legal age requirement is in place, Member States should ensure that “when a younger child can demonstrate capacity to express an informed view on her or his treatment, this view is given due weight” (General Comment No. 12).
In addition, the Council of Europe’s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo Convention) states as a general rule that an intervention in this field “may only be carried out after the person concerned has given free and informed consent to it” (Article 5). Article 6 deals with the protection of persons not able to consent, including children. It provides that, where a child does not have the capacity to consent, an intervention producing a “real and direct benefit” may be carried out with the authorisation of their representative or an authority, person or body provided for by law. It states that, the higher the child’s age and degree of maturity, the more the child’s opinion shall be a determining factor.