THINK OF THE CHILDREN: LIABILITY FOR NON-DISCLOSURE OF INFORMATION POST- MONTGOMERY

In 2015 the Supreme Court in Montgomery v Lanarkshire Health Board handed down a landmark decision on informed consent to medical treatment, heralding a legal shift to a more patient-centred approach. Montgomery, and the extensive commentary that has followed, focuses on ‘adult persons of sound mind’. Cave and Purshouse consider the potential claims that may flow from a failure to adequately inform children. They argue that the relevance of the best interests test blurs the boundaries between negligence and battery. Limitations on children’s rights to make treatment decisions for themselves impact on their potential to claim in negligence for non-disclosure and, conversely, enhance the potential relevance of the tort of battery. In paediatric cases, Montgomery raises expectations that the law is currently ill-equipped to satisfy. Tort law provides a legal incentive to disclose relevant information to children but limits the availability of a remedy.

'informed consent' in the case of children? Despite there being a wealth of academic literature on the law of information non-disclosure as it applies to adults, until now the extent to which this law applies to child patients has not been explored in any depth.
The lack of legal clarity is problematic as it may result in the autonomy of child patients being violated. Autonomy is equated with a person's 'freedom to decide what shall and shall not be done with their body' 7 and, though the weight given to autonomy has sometimes been contested, 8 respecting it is widely considered to be an important ethical principle. There are different definitions to the term autonomy in the literature. The case law tends to support a liberal conception that seeks to give effect not only to an individual's current desires but also their longterm choices and values. 9 It is true that these theories of autonomy can result in different outcomes when determining whether an interference with an individual is morally justified. Whichever of these definitions of autonomy is preferred, 10 though, failing to inform a patient of the risks involved in medical treatment could constitute an interference with autonomy and so it is not necessary for us to take a firm stance on this issue for the purposes of this article.
It could also be argued that negligence focuses on carelessly caused injury and so is arguably ill-suited to protecting autonomy. 11 But following the decision in Chatterton v Gerson 12 to limit the scope of the tort of battery, negligence has become the dominant mechanism for protecting autonomy in medical treatment decisions. In 1999 Jones stated: 7 Ibid., [108] (Lady Hale). 8  The underlying ethical principle of informed consent is that one should respect the patient's autonomy: the capacity to think, decide and act on one's own thoughts and decisions freely and independently. 13 This was confirmed in Montgomery 14 and Chester v Afshar 15 before it, when the courts recognised the relevance of autonomy when developing the doctrine of informed consent. The issues considered in this article will therefore enable us to assess whether tort law is adequately respecting autonomy in paediatric cases.
Furthermore, our argument has important implications for access to justice. A Freedom of Information request submitted by the authors to NHS Resolution indicates that, since Montgomery, paediatric claims related to non-disclosure of information have increased, whilst the number of successful claims has fallen. 16 This suggests that raised expectations of information disclosure following Montgomery extend beyond 'adults of sound mind' and that access to justice in paediatric cases is limited. Indeed, we will present evidence of legal uncertainty as to the mechanisms for protecting information non-disclosure that supports this claim. Clarification here is therefore both timely and important.
We focus on children's interests in receiving information and the tort claims they might bring. Taking the existing law as a starting point, the first part of the article outlines the law so far as it determines when children and proxies can consent to medical treatment. We then set out a number of barriers to a successful claim in negligence for non-disclosure where the treatment 13  involves a child. In particular, we demonstrate that the principle that child patients must be treated in their best interests, combined with the fact that proxies can still consent on their behalf, has potential to thwart claims by children for negligent non-disclosure of information. We then consider the tort of battery. Whereas for adult patients, battery offers only limited protection in cases of non-disclosure of information, we argue that the tort has paradoxical significance in paediatric cases. We conclude that whilst tort law provides a legal incentive to disclose relevant information to children, there are limitations in the availability of a remedy.
The term 'informed consent' is potentially misleading given that it implies an element of validity which in fact is a matter for battery. 17 We will therefore differentiate 'consent' from 'informed consent' to distinguish the laws of battery and negligence, and refer to '(informed) consent' when we seek to capture both torts.

II. LEGAL CAPACITY OF CHILDREN
Before discussing the tort remedies for children who have received insufficient information about medical treatment, it is necessary to outline the law on the legal capacity of children. This will determine whether they can consent to treatment and, by extension, is relevant to claims for negligent non-disclosure of information and battery.
It is well established that children under the age of 18 can provide a valid consent in certain circumstances. The law recognises some children to be of sufficiently 'sound mind' to provide an effective consent, in which case there is good reason to demand that information about the treatment is disclosed to them. In the landmark case of Gillick v  can provide consent to surgical, medical or dental treatment which is 'as effective as it would be if he were of full age'. Most of the provisions of the Mental Capacity Act 2005 (MCA) and accompanying Code, 22 which govern decision-making for adults who lack capacity, also apply to 16-17-year-olds. 23 The Act presumes capacity 24 and sets out a two-stage functional test for incapacity: 25 Is there an impairment of or disturbance in the functioning of a person's mind or brain? If so, is the impairment sufficient that the person lacks capacity to make the relevant decision?
Where a child lacks Gillick capacity, it was established in Re R 26 that proxy consent should be obtained, in which case the HCP must decide what to disclose to the child and proxies respectively. 27 Provided material information is disclosed to the proxy, the incapacitated child's negligence claim for non-disclosure is likely to fail. Where a 16-17-year-old lacks capacity, the MCA sets out a framework for decision-making in the person's best interests, requiring (where practicable) consultation with relevant people, including the patient. 28 Where there is a reasonable belief of incapacity, the HCP who examines or treats the patient in their best interests is protected under section 5. 19 24 Ibid., s 1(2). 25 Ibid., ss 2-3. 26  While this article will at times refer specifically to Gillick capacity and MCA capacity, so as to distinguish the different legal sources of the child's ability to consent to treatment, we will employ the generic term 'capacity' to denote a child's satisfaction of either test.

A. The Status of Children
Should the fact that a patient is a child prevent them from bringing a claim in negligence or battery for non-disclosure? Initially, this does not seem a convincing reason for limiting these rights of action. It is clear that empowering children to understand their condition and treatment improves their health and wellbeing. 29 Furthermore, assuming that one of the purposes of the law of (informed) consent is to protect autonomy, 30 it should apply to children with capacity as, morally speaking, they have autonomy interests that warrant protection. 31 However, capacity does not render a child's status equal to adults'. While children with requisite capacity can consent to treatment, they cannot necessarily refuse it. This stems from ambiguity as to the ratio of Gillick. In the majority, the two leading speeches were given by Lord Fraser and Lord Scarman, with Lord Bridge agreeing with both judgments. Lord Scarman appeared to hold that a child had a right to determine whether or not they could consent to medical treatment once they had capacity. 32 According to this view, once a child has Gillick capacity, their consent would prevent an action in battery. In contrast, Lord Fraser's judgment required that the treatment had to be in the child's best interests before the consent to treatment would be considered valid. 33 The consent of a child with Gillick capacity would not be sufficient to render treatment lawful. This is because the best interests test is not equated with the views or desires of the child. It is possible for treatment to be in a child patient's best interests even if the child does  34 it was held that a 15-year-old girl's refusal to consent to a heart transplant could be overridden as the operation would be in her best interests. The child's views will be an important factor in the balancing exercise used to determine best interests, but they are not decisive. Donaldson asserted that the ratio of Gillick is that while a child with capacity can consent to medical treatment, the court or those with parental responsibility retain a concurrent right to consent. 37 They may override the child's refusal to consent and provide consent on the child's behalf where so doing would be in the child's best interests. This means that, in addition to being insufficient, the consent of a child with Gillick capacity is not necessary for an HCP to avoid a battery action. The same principle applies to young people aged 16-17. 38 With adults, consideration of best interests by the courts only arises if it has been determined that the adult lacks capacity. 39 It has long been established that a person with capacity who has attained the age of 18 may refuse treatment, even if that decision is unwise. 40 As a result, some commentators have argued that it is illogical to say that a child, or any individual, can have the capacity to make a particular decision but is not capable of refusing it. 41 Yet this critique only has force if the aim of the law is to protect children's autonomy. Lord Donaldson's interpretation of Gillick focuses not on its potential to enhance children's autonomy, but to protect their welfare. Children can consent to treatment that is in their best interests if they 34  have sufficient understanding and intelligence, just as they can refuse treatment that is not in their best interests.
Of course, autonomy is a relevant aspect of the child's welfare: this is clear from reference to the child's view in the Children Act 1989 welfare checklist 42 and from the common law. 43 The primary aim of the law, however, is not to protect the autonomy rights of children but to elicit 'what is best for the welfare of the particular child'. 44 According to Re R and Re W, 45 the child, persons with parental responsibility and the court can all provide a valid consent in order to protect an HCP fulfilling that aim. The law therefore allows the child's refusal of treatment to be overridden to protect their best interests. This can impact on information disclosure both in relation to what is relayed to the child and what is shared with proxies.

B. Parental Status vis-à-vis the Capacitous Child
Parental powers are, however, limited in law and practice. In family law, the welfare of the child is the paramount consideration. 46 The definition of parental responsibility in section 3 of the Children Act 1989 balances parental powers and rights with responsibilities. Sir James Munby recently made clear in Re D that Re W remains relevant 47 but also noted that, since Gillick, the ambit of parental responsibility is 'to be ascertained by reference to general community standards in contemporary Britain, the standards of reasonable men and women'. 48 In 1993 this ambit extended to providing consent in the best interests of a capacitous child refusing treatment. It is questionable whether this remains the case. 42 Children Act 1989, s 1(3)(a). 43 Axon (n 20). 44  Post-Re W, professional guidance at first asserted parental rights to veto harmful treatment and recognised a resulting need for persons with parental responsibility to be properly informed. 49 But Re W was decided before the Human Rights Act 1998 came into force. Article 8 of the European Court of Human Rights (ECHR) has been influential in the backlash against medical paternalism. 50 It was relevant in Montgomery 51 and in assertions of children's autonomy rights in Axon. In the latter case Silber J. opined that once a child has capacity to make decisions for herself, persons with parental responsibility lose any right under Article 8 to consent on the child's behalf. 52 Today, professional guidance is more protective of the autonomy rights of children with capacity, urging a court declaration rather than reliance on parental consent where refused treatment would prevent loss of life or grave harm. 53 The court is required to take into consideration the wishes and feelings of the child under the welfare checklist set out in section 1(3) of the Children Act 1989. The Care Quality Commission (CQC) goes further still, advising that: 'Parents cannot override a competent child's refusal to accept treatment.' 54 This is a bold stance that runs contrary to Re R and Re W. It is an approach that places dwindling emphasis on parental powers once the child has capacity, and the restricted power is likely to be matched by a limited right to information about the child's treatment. The case law adopts an approach that encourages HCPs to share information but, does not extend to breaching the child's confidentiality without a strong best interests justification. 55 If the child lacks capacity, HCPs can rely on parental consent. In this regard, the vagueness and high threshold of the Gillick test can result in assessments that effectively focus on outcomes and inadequately protect autonomy. 56 On the other hand, reduced reliance on parental veto means, as we shall see, that HCPs will need to furnish the child with relevant information in order to determine whether the decision is valid and made with capacity. The law is less concerned with a doctor-centred approach protecting HCPs from liability and increasingly sympathetic to a patientcentred approach protecting patient autonomy.
However, the development of respect for children's autonomy only goes so far. In the next section we argue that limitations on their right to decide may impact on their ability to claim in negligence for non-disclosure of material information.

A. Negligent Non-Disclosure of Information 57
The HCP's duty of care includes giving the patient enough information so that they can make a decision whether to accept or reject treatment. 58 Prior to Montgomery, the case of Sidaway v Bethlem Royal Hospital 59 governed the standard of care expected of HCPs in information non-disclosure cases. Marked differences characterised the speeches of their Lordships but the majority were broadly supportive of utilising the Bolam test to determine whether an HCP had breached their duty to advise patients. 60 An HCP would escape liability if he or she could find a responsible body of medical opinion that would have chosen not to inform the patient of a particular risk. 61 In Montgomery it was held that the majority decision in Sidaway was flawed. 62 Echoing Lord Scarman's dissenting judgment in Sidaway, Lady Hale asserted that informed consent is firmly part of UK law. 63 Henceforth, HCPs must disclose information that a reasonable patient would 56 See E Cave, 'Goodbye Gillick? Identifying and Resolving Problems with the Concept of Child Competence' 24 (2014) LS 103. 57 Whilst non-disclosure may also lead to actionable psychiatric harm, this is beyond the scope of this paper. 58 Sidaway v Bethlem Royal Hospital [1985] AC 871 (HL), 893 (Lord Diplock). 59 Ibid. 60 63 Ibid., [107]. consider significant or, where the HCP is or ought reasonably to be aware, that the actual patient finds significant. 64 Reflecting a shift in 'societal attitudes towards the practice of medicine' 65 and developments in other common law countries, 66 the decision puts the patient and their rights centre-stage. 67 Lords Kerr and Reed said: An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. 68

B. Negligence Claims by Children with Capacity
For children, the powers of persons with parental responsibility to overrule their capacitous treatment decisions are, in practice, limited. However, the courts are willing to override a capacitous refusal in sufficiently serious cases, where the treatment is deemed to be in the child's best interests. 69 Best interests is a primary consideration as a 'universal theme of the various national and international instruments', 70 including Article 3 of the United Nations Convention on the Rights of the Child. Whilst the principles of informed consent applicable to adults are shifting inexorably from a transferal of responsibility designed to defend HCPs from tortious liability to a means of protecting patient autonomy, Re W adopted a paternalistic approach whereby a valid and informed consent provides a 'flak jacket' to protect the HCP from liability. 71 The decision-making 64  powers conferred on children by virtue of their capacity are restricted. 72 We will argue that the concept of best interests impacts on consenting children's ability to claim in negligence.
Children can bring claims for negligent diagnosis and treatment. 73 It has long been established that HCPs owe a duty of care to their patients and that, in addition to diagnosis and treatment, this duty encompasses advising the patient. 74 Although sometimes issues may arise about the extent of the HCP's duty to his or her patient, 75 there is, ostensibly, no reason why the HCP would not owe this duty to children with capacity whose consent is relied upon.
The test for breach in information non-disclosure cases, set out in Montgomery, establishes that an HCP is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. 76 As mentioned earlier, these are assessed from the position of the reasonable patient (or the actual patient where the HCP ought reasonably to be aware that the patient would find the risks or alternatives significant). However, as we have seen, capacity does not equate children with adults, and so this extension is not assured. If Montgomery were not to apply, HCPs would not be considered negligent if they were acting in accordance with a responsible body of medical opinion 'merely because there is a body of opinion who would take a contrary view'. 78 The focus would not be on what the reasonable or actual patient would want to know, but on what the reasonable doctor would disclose in the circumstances.
Causation provides a more extensive hurdle. Usually, in order for factual causation to be established, the claimant must show on the balance of probabilities that 'but for' the failure to warn they would have avoided the damage. First, the failure to warn must have caused actionable damage, which means that the risk inherent in the procedure must have eventuated: no claim will succeed where the procedure improves the claimant's health. Second, the patient must demonstrate that they would not have undergone the treatment if they had been properly warned and thus avoided the bad outcome. Where a patient's treatment turns out to be unsuccessful, there is an incentive for them to say that they would not have undergone the operation, otherwise the claim would fail. The court is wary of hindsight bias and will give weight to an objective assessment of whether the reasonable patient would have undergone the procedure if warned (the objective limb). If the reasonable patient would still have gone ahead then it is for the claimant to demonstrate that they would have acted differently to the reasonable patient (the subjective limb). 79 This approach has been confirmed post-Montgomery. 80 Finally, under the exceptional rule in Chester v Afshar, causation may also be established if the patient would have delayed having the treatment and therefore avoided the risk by running it at a different time or in different circumstances. 81 We will consider the Chester exception below.
Prima facie, it appears that an HCP should warn a child who has capacity of the risks of treatment. If a capacitous child has a right to determine their own medical treatment then there would be no barriers, beyond those that adults face, to them bringing a negligence claim. A failure by an HCP to warn the capacitous child of material risks in the treatment, or reasonable alternatives 79  A problem with this analysis is that even if an HCP breaches their duty to disclose information, provided the treatment is required in the child's best interests, the child will have difficulty convincing the court that they would have avoided the risks involved in the procedure. This is because, given alternative consent would have been provided even if the child had refused the treatment, it is more likely than not that they would have undergone the procedure even if they were properly warned.
Let us imagine that an HCP fails to warn a child of a ten per cent risk of paralysis inherent in a procedure and that risk eventuates. The child may be able to demonstrate that if they were warned of the risk then they would not have consented to the operation. But that alone does not mean that they would have avoided the risk. If the case for treatment is compelling on the basis that it is required in the child's best interests, it is more likely than not that the HCP would have been able to obtain alternative consent from a proxy. If so, then it appears that the risk of injury would not have been avoided and the failure to warn would have made no difference to the eventual outcome. 82 A negligence claim would fail.
Chester v Afshar may assist children who have not been informed of the material risks of treatment: they might be able to establish causation if they can convince the court that they would have delayed the procedure if they had been warned. As the case is complicated, it is worth recounting the facts. In breach of duty, the defendant failed to warn the claimant of a 1-2 per cent risk of cauda equina syndrome inherent in back surgery. This risk would exist no matter how expertly the surgery was performed. The claimant underwent the surgery on 21 November 1994.
Although it was carefully performed, the risk eventuated and she became paralysed. In her claim 82 This is assuming that the proxy consent would have been obtained at the same time.
against the defendant, she did not argue that if warned of this risk she would never have undergone the surgery. Had she done so, causation would have been straightforward as she would have avoided the risk altogether. Instead, she argued that she would have sought further advice, with the result that the surgery probably would have taken place at a later date.
By a narrow majority, she was successful in the House of Lords (Lords Bingham and Hoffmann dissenting). In the majority, Lord Steyn said that her 'right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles.' 83 Although the case has spurred a vast academic literature about whether it can be reconciled from ordinary causation principles and, if it cannot, whether such a departure from orthodoxy is justified, 84 we do not need to take a stance on these debates.
Notwithstanding some views to the contrary, 85 the idea that Chester means damages can be awarded for lost autonomy has been resoundingly rejected by the Court of Appeal in England and Wales and by the highest court in Singapore. 86 A child patient must therefore have suffered personal injury as a result of the HCP's negligent non-disclosure in order to claim. Furthermore, while, as Turton notes, subsequent decisions have 'sought to confine the Chester principle narrowly', 87 it allows factual and legal causation to be established if the patient would have delayed the treatment if warned. This may assist a child patient in establishing causation but it is more likely to be successful where the treatment is elective and not mandated in the child's best interests.
In the latter type of case, it may not be possible to delay treatment. Even if the treatment would ultimately be considered by a court to be in the child's best interests, Chester will assist the child if she can show that the process to determine best interestsnamely court authorisationwould have delayed the procedure. Let us imagine during a Monday consultation an HCP failed to warn a child patient of a 10 per cent risk in surgery. The child underwent surgery on a Wednesday and the surgery carried a 10 per cent inherent risk of injury.
As in Chester, the evidence indicates that this unfortunate outcome is liable to strike at random (so 10 patients in every 100 will be injured). If this risk eventuated then, according to Chester, causation would be established if the child claimant could demonstrate that they would have delayed the surgery. If it took place at a later datesay, Fridaythen there would be a 90 per cent chance of avoiding injury. It would be more likely than not that the injury would not have occurred.
Chester therefore offers some hope to child claimants, but it is subject to limitations referred to above regarding criticism of and reluctance to apply the case. Furthermore, it may not be possible to establish delay as there is often a time gap between information disclosure and the procedure. Again, let us imagine an HCP fails to warn the child on Monday of a 10 per cent risk inherent in surgery that is in the child's best interests and the surgery is scheduled to take place on Wednesday. The child would not have consented if warned and the risk eventuates. Provided the consent of the court or a proxy could be obtained before Wednesday and the surgery proceeds as planned, the failure to warn would make no difference. Chester offers only limited assistance and causation represents a stumbling block for children. It will only apply in situations where the child can demonstrate that if they had been properly informed the treatment would have been delayed, no alternative consent would have been obtained and that the risk would have been avoided. The Department of Health has advised that, for adult patients, 'serious detriment' means 'more than that the patient might become upset or decide to refuse treatment.' 92 Given the legal prioritisation of child welfare, might a broader exception be supported in the case of children? If so, an HCP could argue that informing a child patient of risks would have a negative effect on the child's health where it is likely to cause the child to refuse beneficial treatment. 93 The Supreme Court emphasised that this exception was 'limited' and should not be abused, 94 but that related to adult patients. We would argue that a child who would be harmed by the disclosure of material information may lack the information required to make a capacitous decision, in which case proxy consent should be sought. In any event, loss of a chance claims are beyond the scope of this article as the law is equally applicable to adults and raises no issues particular to child patients. 91  In practice, it will be sensible for an HCP to comply with Montgomery and advise children who have capacity of material risks in treatment and reasonable alternatives, particularly because the HCP may be incorrect in their assessment that the treatment is in the child's best interests.
The less compelling the case for treatment, the more likely the child will be able to establish that their views were central to a best interests assessment. Consider, for example, a child who consents to a cosmetic procedure on the basis of inadequate information and can demonstrate that they would have refused consent had they known the risks, such that a court would not have considered the procedure to be in the child's best interests. The child would have been able to avoid the risk in the treatment (as it is likely that a proxy would not have consented to it) and so might succeed in a negligence action.
Negligence therefore offers an incentive to disclose information to children with capacity, but in the event of non-disclosure, the chances of a remedy are slim. Hurdles exist in relation to breach, causation and the HCP's ability to rely on the therapeutic exception.

C. Negligence Claims by Children who Lack Capacity
Additional limitations apply if the child lacks capacity. Children in this position maintain an interest in participating in the decision, and a failure to involve them might result in harmful treatment that would otherwise have been refused in their best interests. Nevertheless, given that a proxy will provide consent (or, in the case of 16-17-year-olds, treatment will be provided in accordance with section 5 of the MCA) it is unlikely that a duty of care to disclose information to the child exists.
Even if it did, Montgomery's relevance is dubious given its explicit restriction to those with capacity.
If Montgomery does not apply to patients lacking capacity, then the Bolam test would continue to govern the standard of care.
A proxy (with parental responsibility) has a right to consent to treatment in an under 16- year-old's best interests and needs relevant information to make an informed and valid decision.
However, a claim by the proxy is unlikely to focus on their loss of autonomy because the function of providing consent is not to protect the autonomy interests of the adult, but to prioritise the child's welfare. 96 The proxy may have a claim in negligent information disclosure on the child's behalf if a failure to inform the proxy led to a decision to treat that would have come within the scope of the proxy's parental responsibility to refuse.

IV. BATTERY
Having outlined the potential difficulties children face in claiming in negligence, we now turn to battery. Our aim is not to provide a single definitive position but to outline a variety of possible arguments that might be raised as to battery's relevance. These arguments demonstrate the paradoxical relevance of battery to children and provide an additional incentive to disclose to children information needed to make a decision.
In Collins v Wilcock, Goff L.J. defined battery as: 'the actual infliction of unlawful force on another person'. 97 As a trespass tort, the touching must be intentional and direct. 98 This tort is actionable per se, meaning that, unlike with negligence, there is no need for the claimant to suffer any loss or damage. Consent provides 'those concerned in the treatment with a defence to…a civil Historically, the prevalent view in the literature was that 'it would be very much against the interests of justice if actions which are really based on a failure by the doctor to perform his duty adequately to inform were pleaded in trespass'. 102 Brazier argued that after Sidaway '[l]iability in trespass for failure to disclose risks appeared to have been stamped on'. 103 She said that bringing an action against a doctor in battery appears to place them on a par with the police officer who beats a suspect. 104 There is, however, evidence that the courts could, and should, consider utilising the tort in paediatric cases. The evidence in question is of a more permissive stance regarding the protection of patient autonomy via the tort of battery. Since Brazier's important article, F v West Berkshire HA 105 confirmed that hostility was not a requirement for battery. There has also been a retreat from medical paternalism 106 and a reduction in deference to healthcare professionals. 107 Tacit reliance on battery is at the heart of the landmark decision in Aintree University Hospitals NHS Trust v James. 108 There, the Supreme Court emphasised the unlawfulness of continued medical treatment that was not justified in the best interests of a patient who lacked capacity. The Court recognised that 'the fundamental question is whether it is lawful to give the treatment, not whether it is lawful to withhold it.' 109 Consider also Ms B v An NHS Hospital Trust, 110 where Butler-Sloss P.
upheld Ms B's refusal of treatment even though it would result in her death. She had capacity to make the decision so continued treatment, absent valid consent, would constitute a battery. 111 An argument that the courts should permit battery claims in paediatric cases flows from the relevance of best interests and evidence of barriers to children claiming in negligence. For adult patients, in order for a valid consent to exist it has to be given by someone with capacity, be voluntary and the individual concerned has to know what they are consenting to, which requires them to be given at least some information about the treatment. All that is required is that they are informed in broad terms about the nature of the treatment. 112 Paradoxically, the tort that offers minimal protection to adult informational autonomy may have extended significance to under 16s for three reasons: firstly, the application of a different test for capacity; secondly, the requirement to demonstrate capacity; and, thirdly, the relevance of the best interests test regardless of capacity. As we have seen, the best interests test is also relevant to young people of 16-17 which suggests that the law of battery may also have special relevance to this age group.

A. Non-Disclosure and the Test for Capacity
Let us take the most tentative reason first. For children found to have Gillick capacity (unlike adults), the tort of battery might be committed where the child is given substandard information because a higher threshold for what constitutes a valid consent may apply. Lord Scarman said it was 'not enough' that the child should 'understand the nature of the advice which is being given '. 113 In order for children to have capacity to consent they need to have 'sufficient maturity and understanding of what is involved.' 114 Lord Scarman said that minors should 'understand fully what is proposed'. 115 This indicates that in order for a child to have capacity they need to have a greater understanding of the consequences of the decision than an adult in a comparable situation, which in turn would impact on the requirements to disclose information. 116 If the child's consent is to be relied upon, disclosure must enable this high level of understanding or risk liability in battery. 112 Chatterton (n 3). 113 Gillick (n 18), 189. 114 Ibid. If this interpretation were adopted, fewer children would be found to have Gillick capacity, but non-disclosure of risks or reasonable alternatives could potentially lead to a claim in battery if the child's consent (as opposed to a proxy's or the doctrine of necessity) was relied upon. It would need to be established that a failure to provide information resulted in denial of the choice of reasonable alternatives (potentially including not having the treatment), so that the child cannot be said to have fully understood the decision. Without this level of understanding their decision cannot be regarded as capacitous, thus rendering their consent invalid. In the absence of harm, damages would be minimal, but battery serves a vindicatory function with respect to the interest in physical integrity, or protection from unwanted physical contact.
However, there is evidence of a softening in the judicial approach to Gillick capacity. Gillick the (adult) MCA approach to Gillick capacity. 120 A test based on 'sufficient' rather than 'full' understanding would enable more children to provide consent. Like adults, capacity would be decision-specific taking into consideration the factual context. 121 Like adults, children would be reliant upon negligence if they wanted to argue that disclosure was sufficient to allow valid consent but insufficient to allow informed consent.
It therefore seems that if the Gillick approach is followed, a consenting child may have a claim in battery if the information was not sufficient to allow full understanding, but if the reasoning in Re S is applied in medical treatment cases, the information required to ensure 'sufficient' understanding would align child and adult cases in this respect.

B. Non-Disclosure and the Requirement to Demonstrate Capacity
A related argument focuses on the requirement to demonstrate capacity. Re S suggests an MCAaligned approach in relation to the test for Gillick capacity but does not alter the fact that for children under the age of 16, capacity is not assumed: 122 the section 1(2) presumption of capacity in the Mental Capacity Act 2005 does not apply. Thus, a child who is incapable of understanding need not be informed, but a child who is so capable and whose consent is relied upon in defence to battery, must be shown to actually understand the relevant information, which in turn requires information disclosure. Because under-16s must be shown to have capacity, it seems an informational component attaches to its assessment.
Ambiguity surrounds the potential liability in trespass of an HCP who misjudges (in)capacity. The pre-MCA case law on adults offers some assistance. In Re T, Straughton L.J. said: Some will say that, when there is doubt whether an apparent refusal of consent is valid in circumstances of urgent necessity, the decision of a doctor acting in good faith 120  ought to be conclusive. … However, I cannot find authority that the decision of a doctor as to the existence or refusal of consent is sufficient protection, if the law subsequently decides otherwise. So the medical profession, in the future as in the past, must bear the responsibility unless it is possible to obtain a decision from the courts. 123 Outside the application of the MCA, mistaken belief as to the validity of consent or refusal will not necessarily justify treatment. A test case might develop a defence based on reasonable belief, as per the MCA. 124 There are good reasons for so doing, 'otherwise, physicians would be encouraged to err on the side of non-treatment if a doubt about the patient's competence arises'. 125 If so, then in order to rely on a child's consent, information disclosure must be sufficient to allow reasonable assessment of capacity (rather than the basic level of information required for validity in the case of adults assumed to have capacity). Failure to inform at this level may give rise to a claim in battery.

C. Non-Disclosure and Best Interests
If information disclosure is required to assess an under 16's capacity, then even if the treatment is in their best interests, disclosure that is insufficient to assess capacity might result in battery unless the defence of necessity applies, or proxy consent is sought.
An alternative argument is that even if basic information is sufficient for children to provide a valid consent, the tort of battery may still have resonance if the correct interpretation of Gillick and subsequent cases of Re R and Re W is that a child must be treated in their best interests. consultation is insufficient to generate a reasonable belief that the treatment is in their best interests and the treatment is shown not to be in their best interests. This argument develops in three stages. First, because best interests are not a purely medical consideration, consultation is required to make a determination that takes into account the particular interests of the child. Second, the HCP must have a reasonable belief that a course of action is in the patient's best interests and the belief will not be reasonable if the HCP failed to adequately consult a child who is capable of contributing to the decision to a level that would determine their best interests. Third, if the child can show that adequate consultation would have led to a different appraisal of their best interests and therefore a different treatment decision and the decision taken was contrary to their interests, they might claim in battery.
An HCP cannot determine the child's best interests on clinical grounds alone. 126 The Supreme Court has recognised that an important part of the best interests determination is to consult the child to ascertain their views. 127 This emanates from Article 12 of the United Nations Convention on the Rights of the Child 128 and is featured in the Children Act 1989 welfare checklist. 129 HCPs who fail to engage with the child can err in their assessment of best interests even if their motives are honourable and a relevant consent is obtained. In the 1976 case of Re D, 130 Dr Gordon, a consultant paediatrician, supported by a consultant gynaecologist made a clinical judgement that an 11-year-old girl with Sotos Syndrome should be sterilised for nontherapeutic purposes with her mother's consent. A consultant psychiatrist challenged the decision and the court held the operation was neither medically indicated nor necessary, that it would an infringement of her rights and was contrary to her best interests. 131 The court lamented Dr Gordon's refusal to consult relevant others. 132 The evidence suggested that Dr Gordon had already performed two similar operations in Sheffield. 133 Had those cases come before a court postoperatively, there would have been strong grounds for a claim in trespass given the finding of the court in Re D that it was, in fact, contrary to D's interests. 134 As for reasonable belief in best interests, we must start with the position relating to 16-17year-olds. If they are reasonably supposed to lack capacity, the MCA provides a defence for an HCP who, taking account of the factors listed in section 4 of the Act, 'reasonably believes that what he does or decides is in the best interests of the person concerned.' 135 This means that the outcome of the treatment does not actually have to be in the best interests of the patient lacking capacity provided that the HCP reasonably believes it to be. Under the MCA, for an HCP's 'reasonable belief' that treatment was in the incapacitous patient's best interests to be a valid defence, certain procedural requirements set out in section 4 must be satisfied. These include, where practicable, consultation with the patient and relevant others. 136 Failure to do so can result in battery 137 and breach of Article 8 ECHR. 138 16-17-year-olds who lack capacity cannot consent, but best interests is no defence to battery if the best interests decision was not reasonable because they or others were not properly consulted.
For consenting 16-17-year-olds with capacity who have been given basic information sufficient to make a valid consent, one might assume that, like adults, they have no claim in battery.
But if it is accepted that Re W requires the decision to be in their best interests, and there is a failure to adequately consult them to determine those best interests, and a court finds that the decision was not in their best interests, they could argue that their consent was invalid.
Re W applies the best interests test regardless of capacity. It does so in the specific context of refusal of life-sustaining treatment and may extend no further, but welfare is the paramount consideration under the Children Act 1989 and cases such as Re W indicate that the age of 16 is not a 'bright-line'. 139 Moreover, attempts to limit Re W focus on allowing young people with capacity to define their own best interests. In non-disclosure cases we are concerned with children who have been denied that opportunity due to inadequate consultation.
If the HCP has a reasonable belief that treatment was in the young person's interests there will be no battery where the child consents, even if consultation was minimal and whether or not it was in fact in their interests. But if the HCP's view that the decision is in their best interests is unreasonable because consultation was minimal and a court finds that the decision was not in fact in the young person's best interests, then the child could argue that the limited consultation was insufficient to protect their best interests and rendered their consent invalid.
The position for under 16-year-olds is less clear. In Re F, Lord Bridge asserted that where treatment is curative, doctors should be 'immune from liability in trespass' where they have 'acted with due skill and care'. 140 Lord Donaldson recognised that the duty to consult will vary according to the complexity of the treatment. Where the course is unclear 'for example, a variety of different treatments are available each involving different potential risks and benefits', greater consultation may be required 'in order for the doctor to satisfy himself, and it may be subsequently a court, that he is performing his duty under the law and so is immune from suit'. 141 Because the principles that influenced the framing of the MCA are also relevant to under-16s, a court is likely to require reasonable belief rather than proof that the outcome was in the child's best interests. Again, it will be difficult for an HCP who has not sufficiently informed a consenting child to demonstrate that their belief of the child's best interests was reasonably held.
As such, subject to evidence that disclosure would cause harm, the HCP will need to inform such 139 Re D (n 21), [126] (Sir James Munby P.) 140  The duty to consult differs according to the procedural requirements with respect to each age group. Under the MCA there must be enough information to facilitate capacity and it is significant that in Re S, Cobb J. opined that the same duty applies to children. 142 But a duty to facilitate capacity does not necessarily require disclosure of material risks, benefits and alternative choices, such as is required in relation to 'adults of sound mind' under Montgomery.

V. CONCLUSION
Montgomery was a landmark decision that has since been extended to apply to other aspects of patient choice. 143  Supreme Court would agree: it refused permission to appeal in that case. 146 In adult cases, claimants have struggled to show that a failure to disclose reasonable alternatives would have changed the outcome. 147 It is for these reasons that many commentators have disputed the ability of the tort system to adequately protect patient autonomy. 148 We suggest that these criticisms have additional force when it comes to children.
There is scope to challenge the paternalistic interpretation of Gillick. As we have seen, one interpretation of Lord Scarman's judgment in Gillick is that the child with capacity can make a determinative treatment decision. Sir James Munby in Re D recognised as a 'fundamental principle' set out in Gillick that 'the exercise of parental responsibility comes to an end not on the attaining of some fixed age but on attaining 'Gillick capacity''. 149 Mostyn J. has stated that it was implicit in Gillick that 'provided the child, under the age of 16, has sufficient understanding and intelligence, she can then be lawfully prescribed with contraception even if the result of that would lead her to take steps which are wholly contrary to her best interests.' 150  For now, an alternative view dominates, based on Lord Fraser's judgment which appears to require that the treatment must be in the child's best interests, and that there are cases where this can be determined by others, even where the child has capacity. The dominance of best interests in decisions about treatment of children limits the relevance of negligence. However, on the basis of procedural requirements to facilitate participation in order to determine capacity and best interests, it enhances the relevance of the tort of battery, which for adults offers only limited protection of their right to information. Like adults, children might claim in battery if no authorisation has been obtained for their treatment. Our focus has been on substandard information disclosure. We have considered three ways in which battery might be relevant in light of the test for Gillick capacity and the role of best interests. Because battery is actionable per se, this offers a powerful incentive to involve children in decisions made about them.
However, it only goes so far. In practice, the courts have shown reluctance to protect patients from battery. 151 Furthermore, where the HCP is satisfied that the decision is in the child's best interests -for example where no reasonable alternatives exist, the child's claim is undermined.
More effective remedies may lie in the development of human rights claims associated with the duty to consult and the right to autonomy. Sir James Munby P. has lamented: our slowness in accepting the … profound implications of the undoubted fact that a child has, quite distinct from and sometimes in conflict with his or her parents, the important procedural rights guaranteed by Article 8 of the European Convention. 152 In Montgomery, the law finally caught up with professional guidance on adult consent. 153 Since 2007, the General Medical Council (GMC) has also set out guidance on information disclosure in relation to children. It establishes that the child's best interests is the guiding principle in all decisions, 154 and emphasises the importance, where appropriate, of good communication between doctor and child. 155 Breach can result in disciplinary action. The GMC also sets out what information should routinely be provided: You should provide information that is easy to understand and appropriate to their age and maturity about: a their conditions b the purpose of investigations and treatments you propose and what that involves, including pain, anaesthetics and stays in hospital c the chances of success and the risks of different treatment options, including not having treatment d who will be mainly responsible for and involved in their care e their right to change their minds or to ask for a second opinion. 156 The GMC advises that this information should only be kept from children if either that is their wish, or if it would cause them serious harm. 157 In this respect, the professional requirements to disclose information to children closely mirror the duties in relation to adults as set out in Montgomery. HCPs are rightly advised to abide by this guidance lest they treat in a manner that conflicts with the child's interests, which extend beyond clinical factors and cannot be accurately ascertained without consultation. From the position of the child, however, the situations in which non-disclosure would give rise to a remedy in tort are limited.
Montgomery reconciled the law on negligent non-disclosure of information in the case of adults with social and legal developments. Is information non-disclosure in the case of children another area where the law is behind the curve? We would argue that insofar as the law limits the rights of children with capacity to make medical treatment decisions contrary to their best interests, the tort of negligence is patently ill-suited to the protection of their autonomy.