Consent and confidentiality for children and teens

Question 1

Explain who can offer consent for a child aged 0-12 years old

Answer 1

Children’s Act 1989, 2004. - Determines who can give consent for medical assessment + treatment of child not yet old / mature enough to consent.

• An individual with “parental responsibility”
• Courts
• People who have “care for a child” (e.g. teacher) - Children Act 1989, section 3(5)
• In an emergency situation, emergency treatment without consent to save life or prevent serious deterioration of child or young person. Parents do not have unfettered rights over their children

Question 2

Explain the legal ramifications of the case of Victoria Gillick

Answer 2

Victoria Gillick rejected the idea that a teenager can go obtain contraception

“…it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.“

“parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.“

Judge Scarman: Gillick v West Norfolk, 1985

Question 3

Consider the term ‘Gillick Competence’ and all its accompanying aspects including the ‘Frazer Guidelines’

Answer 3

0-18 can not refuse life-saving treatment

Lord Fraser stated that a doctor should always encourage a girl aged under 16 to inform her parents or carers that she is seeking contraceptive advice (or allow the doctor to inform the parents or carers on her behalf).

The conditions:

• the young person’s physical or mental health or both are likely to suffer unless they receive the advice or treatment.
• it is in the young person’s best interests to receive the advice, treatment or both without their parents’ or carers’ consent.
• the young person is very likely to continue having sex with or without contraceptive treatment.

What is Gillick Competence?

• when a child has reached sufficient understanding/maturity/intelligence to enable her/him to understand fully what is proposed with regards medical care.
• Therefore a Gillick competent child can consent to medical treatment but can never refuse life saving treatment even if Gillick competent.

In Gillick competent children
refusal of consent to treatment can be
over-ridden by a parent or the court

Question 4

Explain the legal ramifications of the case of Susan Axon

Answer 4

R (on the application of Axon) v. Secretary of State for Health and Anr. [2006]Axon case

• Mrs Susan Axon brought a high court action seeking judicial review of the Dept. of Health (UK) circular on provision of abortion
• She did not wish to prevent her daughters having an abortion but did wish to be informed
• Court confirmed (2005) that competent minors are entitled to confidentiality in the same way as competent adults are so entitled
• However: Operation on under 16yrs preferable to get parental consent.
• The Applicant, Sue Axon, alleged that the Family Planning Association violated the rights of parents under article 8 of the European Convention on Human Rights (ECHR) (right to respect for private and family life).
• The Applicant argued that article 8 of the ECHR required doctors to inform parents of children under 16 in cases where such advice or treatment was given except where doing so might prejudice the child’s physical or mental health.

Ruling

• The Applicant also claimed that the 2004 guidance publication by the Department of Health entitled Best Practice Guidance for Doctors and Other Health Professionals on the Provision of Advice and Treatment to Young People under Sixteen on Contraception, Sexual and Reproductive Health was unlawful and interfered with the article 8 rights of a parent.
• The Secretary of Health opposed the declaration and submitted that the 2004 guidance was lawful.
• The Court confirmed (2005) that competent minors are entitled to confidentiality in the same way as competent adults are so entitled
• Silber J suggested that once a child is Gillick competent, the parent loses any right under the Human Rights Act 1998 to respect for family-life and to make decisions for the child.

Question 5

Understand the main principles of the GMC guidance ‘0-18 years: Guidance for doctors

Answer 5

16 and over = presumed capacity to give consent

• Parental responsibility means the rights and responsibilities that parents have in law for their child, including the right to consent to medical treatment for them, up to the age of 18 in England, Wales and N. Ireland and 16 in Scotland.