Recent DoH guidance clarifies the issue of consent in the under-16s. Dr Gerard Panting explains what this means for GPs giving sexual health advice to this age group
Teenage pregnancy, particularly in the under-16 age group, is a major public health issue. More than a quarter of young people under 16 are sexually active and this group is the least likely to use contraception.1
As part of the Government’s teenage pregnancy strategy, the Department of Health issued revised guidance in July 2004 for health professionals on the provision of contraceptive, sexual and reproductive health services for the under-16s.
The guidance is timely, following as it does recent press furore over the referral of a young teenager for a termination of pregnancy by a nonmedical and allegedly inexperienced school staff member.
Some newspapers took up claims made by the teenager’s mother that she had a right to know and a right to be involved in any decisions to be made, reviving arguments that had periodically surfaced over the past 20 years.
However, since the House of Lords judgment in 1985 (commonly referred to as the ‘Gillick case’),2 English law has been clear that the rights of the patient to consent to treatment and to confidentiality are not age dependent.
The duty of professional confidence owed to patients under 16 is essentially the same as that owed to any other person. Equally, a young person’s ability to consent to contraceptive or other forms of treatment depends upon competence, not age.
Valid consent to treatment depends upon the patient being competent, having sufficient information available to make an informed choice and making that choice voluntarily.
Prior to the 1985 House of Lords case, there was confusion over the position of the under-16s. Section 8 of the Family Law Reform Act 1969 stated that persons aged 16 or over could consent to medical, dental and surgical treatment.
What was less clear at that stage was whether children under the age of 16 could also provide valid consent or whether parental consent was always required in these circumstances.
The House of Lords judgment did not look solely at contraceptive advice and treatment but addressed the broader principle, deciding by a majority that the key issue was understanding the advice provided and its implications. Those with that understanding were competent at any age.
Consequently, competence is not an all or nothing phenomenon. An individual may be competent to provide consent where the issues are straightforward but incompetent where the ramifications of any decision are more far-reaching.
The latest guidance from the Department of Health sets out good practice guidelines for those providing advice on sexual health and contraception to the under-16s. It stresses the need to establish a rapport and give the young person support and time to make an informed choice by discussing:
- The emotional and physical implications of sexual activity, including the risks of pregnancy and sexually transmitted infections.
- Whether the relationship is mutually agreed and whether there may be coercion or abuse.
- The benefits of informing their GP and the case for discussion with a parent or carer. Any refusal should be respected. In the case of abortion, where the young woman is competent to consent but cannot be persuaded to involve a parent, every effort should be made to help her find another adult to provide support, for example another family member or specialist youth worker.
- Any additional counselling or support needs.
The guidance also sets out the Fraser guidelines. Lord Fraser of Tullybelton was one of the Law Lords who delivered the 1985 judgment. He said:
"When applying these conclusions to contraceptive advice and treatment, it has to be borne in mind that there is much that has to be understood by a girl under the age of 16 if she is to have legal capacity to consent to such treatment. It is not enough that she should understand the nature of the advice which is being given; she must also have sufficient maturity to understand what is involved. There are moral and family questions, especially her relationship with her parents; long term problems associated with the emotional impact of pregnancy and its termination; and there are the risks to health of sexual intercourse at her age, risks which contraception may diminish but cannot eliminate.
Lord Fraser’s judgment continued:
"It follows that a doctor will have to satisfy himself that she is able to appraise these factors before he can safely proceed on the basis that she has at law capacity to consent to contraceptive treatment. And it further follows that ordinarily the proper course will be for him as the guidance lays down first to seek to persuade the girl to bring her parents into consultation and if she refuses not to prescribe contraceptive treatment unless he is satisfied that her circumstances are such that he ought to proceed without parental knowledge and consent.”
He went on to lay down the following guidelines:
- The young person understands the health professional’s advice;
- The health professional cannot persuade the young person to inform his or her parents or to allow the doctor to inform the parents that he or she is seeking contraceptive advice;
- The young person is very likely to begin or to continue having intercourse with or without contraceptive treatment;
- Unless he or she receives contraceptive advice or treatment, the young person’s physical or mental health or both are likely to suffer;
- The young person’s best interests require the health professional to give contraceptive advice, treatment or both without parental consent.
Sexual Offences Act 2003
One issue that concerns some professionals is whether providing these services to young people under 16 amounts to aiding and abetting a sexual offence, making the health professional vulnerable to prosecution. The Sexual Offences Act 2003 states that a person is not guilty of aiding, abetting or counselling a sexual offence against a child where they are acting for the purpose of:
- Protecting a child from pregnancy or sexually transmitted infection;
- Protecting the physical safety of a child;
- Promoting a child’s emotional wellbeing by giving advice.
This provision applies not only to health professionals but extends to teachers, youth workers, social care practitioners and parents.
The GMC’s guidance on confidentiality states the following:3
"Patients have a right to expect that information about them will be held in confidence by their doctors. Confidentiality is central to trust between doctors and their patients. Without assurances about confidentiality, patients may be reluctant to give doctors the information they need in order to provide good care.”
Under the heading ‘Children and other patients who may lack competence to give consent’, the GMC says:
"Problems may arise if you consider that a patient lacks capacity to give consent to treatment or disclosure. If such patients ask you not to disclose information about their condition or treatment to a third party, you should try to persuade them to allow an appropriate person to be involved in the consultation. If they refuse and you are convinced that it is essential, in their medical interests, you may disclose relevant information to an appropriate person or authority. In such cases you should tell the patient before disclosing any information, and where appropriate, seek and carefully consider the views of an advocate or carer.”
The guidance from the Department of Health states that all services providing advice and treatment on contraception should produce an explicit confidentiality policy stating that young people under the age of 16 have the same right to confidentiality as adults.
However, as the guidance later acknowledges, the problem here is that the duty of professional confidence is not absolute. Breaching confidence is always a serious issue but where there is a risk to the health, safety or welfare of the patient or others, the patient’s right to privacy may be overridden by the need to take further action. In these circumstances, the locally agreed child protection protocols should be followed.
In large part, the Department’s latest advice simply reinforces the principles outlined in previous guidance but it does also set out required actions. These include requiring PCTs to bring the latest guidance to the attention of all healthcare professionals. It also sets out the need to produce a clear confidentiality policy, stating that under-16s have the same right to confidentiality as adults and also to advertise services for young people under 16 as being confidential.
Breaching confidentiality is always a serious issue and anyone doing so must always be prepared to justify their action.
The guidance says that anyone discovering a breach of confidentiality, however minor, including an inadvertent act, should directly inform the senior member of staff, for example the Caldicott Guardian, who should take appropriate action.
Although it does not say so, that appropriate action will often include disciplinary action and dismissal.
- Wellings K,Nanchahal K,Macdowall W et al. Sexual behaviour in Britain: early heterosexual experience. Lancet 2001; 358: 1843-50.
- Gillick v West Norfolk and Wisbech AHA , 3 ALL ER 402.
- General Medical Council. Confidentiality: Protecting and Providing Information. London: GMC, 2004.