• Informed consent
• law
• Spanish law
• minors
• legal medicine

Physicians who care for children are frequently uncertain of the special legal requirements governing the doctor-patient relationship when the patient is a minor.

Society is moving towards a new patient-doctor relationship based on the idea of participation in the medical decision making process. One of a doctor’s obligations is to obtain the patient’s (or legal representative’s) consent before providing treatment. Paternalistic attitudes remain, however, especially in the case of minors. Society increasingly recognises minors as free agents with their own personality and this is also the case with Spanish law concerning the legal right of minors. Situations continually arise in which the doctor must take into consideration the rights of minors to be informed, to be listened to and, perhaps, to offer (or not) their consent. This last consideration, however, provides the greatest problems. The Spanish General Act on Health (art 10) says that: “… prior written consent is necessary before any medical intervention”, although an exception is made when the patient is not mentally capable of taking such decisions, in which case family members or legal representatives must do so. If a patient is not mature enough to consent to medical intervention it is clear that the parents or legal representatives must give permission. However, article 162.1 of the Spanish civil law says that: “Parents who have custody of their children also represent them legally, except in cases referring to the rights of the person, when the child, in accordance with the law and being sufficiently mature, may act for himself”. Therefore, consent, as expressed by the “sufficiently mature” minor, should be legally valid.

Nevertheless, article 155 of Spanish penal law (as opposed to the civil law) specifies: “In so far as bodily harm is concerned … any consent given by a minor or person considered incompetent will not be accepted as valid”. This article could also be applied to medical treatment—for example, surgical intervention which, although considered to be in the patient’s best interest, was given without consent.

It is important to define the concept of minor as understood by the law before determining the validity of consent. Different opinions exist on this point. Most legal experts accept however, in accordance with the Spanish constitution (art 12) and the civil law (art 315) that a minor is a person who has not reached eighteen.

The Spanish Code of Ethics and Deontology for Physicians also fails to clarify the situation. It considers that a minor is not in a condition to give consent although it does state that the opinion of a minor should be taken into account according to age and maturity (arts 7.5, 7.6).

In January 2001, Catalonia, which has regional autonomy, introduced a law on patients’ rights. This law, which is solely applicable to Catalonia and not to the rest of Spain, states that adolescents of sixteen and over must personally give consent (art 7).