Consent and legislation

Gillick Competency - History

In 1974 DHSS outlined new contraceptive services on the NHS to address the rise in unwanted pregnancies and abortions

Included doctors being able to prescribe contraceptives to under 16s without parental knowledge/consent

In 1980 DHSS revised the advised to say, where possible, a parent should be involved in the conversations

Victoria Gillick challenge this, wanting assurance none of her children could seek this advice or treatment under the age 16

VG took local Health Authority and DHSS to court over the issue

Initially VG complaint was not upheld by the court

VG took this to Court of Appeal who took view of VG

DHSS appealed to House of Lords who reversed above decision, the majority agreed

It is not unlawful that a child under 16, in certain circumstances, can give consent to medical treatment, including contraception and abortion treatment, without parental knowledge

The Lords agreed that there were circumstances when a doctor could properly treat a child under the age of 16 without parental agreement

Consent depended on the age, nature of the treatment and understanding of the situation by the child

Gillick competency - Outcome

It was determined that children under 16 can consent if they have

• sufficient understanding and intelligence to fully understand what is involved in a proposed treatment, including

• its purpose

• Nature

• likely effects and risks

• chances of success

• Availability of other options.

If passes the test, then child Gillick competent to consent to that medical treatment or intervention

BUT

• Must be given voluntarily and not under pressure

• May be able to consent to some treatment and not others

• Capacity to consent may fluctuate (eg with certain mental health conditions)

If does NOT pass the test, then person with parental responsibility (or sometimes the courts) is needed to proceed with treatment

Lord Fraser and the Gillick case

Lord Fraser was one of the Lords in the Gillick case

He addressed the specific issue of giving contraceptive advice and treatment to those under 16 without parent consent

He said that the doctor needed to satisfy themselves of 5 things.

Fraser Guidelines – specifically relate only to contraception and sexual health

1.He/she has sufficient maturity and intelligence to understand the nature and implications of the proposed treatment

2.He/she cannot be persuaded to tell her parents or to allow the doctor to tell them

3.He/she is very likely to begin or continue having sexual intercourse with or without contraceptive treatment

4.His/her physical or mental health is likely to suffer unless he/she received the advice or treatment

5.The advice or treatment is in the young person’s best interests

These also apply to any decision made about treatment of STI’s and termination of pregnancy as well.

Health care professionals should still encourage the young person to inform his or her parents, or get permission to do so on their behalf, but if this permission is not given, the child can still receive the advice and treatment.

If the conditions on Fraser guidelines are not met or there is reason to believe that the child is under pressure to give consent or is being exploited then there would be grounds to break confidentiality.

Competency

“Whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent."

Age of consent – healthcare matters

18th birthday – become an autonomous adult in healthcare

But remember vulnerable or “at risk” adults

Age 16 / 17

• Allowed to make medical decisions independently of parents to a more limited extent

• Presumed to have capacity to consent

• If they refuse treatment, can be overridden by parent/court if refusal of treatment could likely result in death, severe permanent injury, irreversible mental or physical harm

Younger children can participate in healthcare decisions to provide independent consent depending on their competence.

There is no lower age limit to Gillick competence or Fraser guidelines

But rarely safe or appropriate for child under 13 to consent without parent involvement

Under 13s are not legally able to consent to any sexual activity – so any info on sexual activity would need to be acted on, even if Gillick competent

Under 16: Safeguarding considerations

If a child under 16 presents to health care professional and discloses history with safeguarding concerns:

If the child is not deemed to be Gillick competent, you must raise the issue as a safeguarding concern and refer to the local authority.

If the child is deemed to be Gillick competent, it may still be necessary to raise a safeguarding concern if to protect them from harm or if in public interest

In both cases, the health professional should inform the young person of this action, unless doing so could pose significant additional risk for their safe care

Child Sexual Exploitation (CSE)

Sexual Offences Act 2003

Aim of the law is to protect safety and rights of young people and make it easier to prosecute people who pressurize others into having sex

Forcing someone to have sex is a crime

In England/Wales, legal age to consent to sex is 16

Although age of consent is 16, law would not be used to prosecute mutually agreed sexual activity between 2 young people (13-16) of similar age (unless abuse/exploitation)

Still have the right to confidential advice on contraception, pregnancy, abortion, even under 16

A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity

Under the act sexual activity with a child under the age of 13 is sexual assault and rape

You must apply safeguarding considerations and refer on to the local authorities and the police

Whilst Gillick competence may be applied by a Healthcare Professional treating them, it is unlikely to be demonstrated by someone under the age 13

Record keeping, sharing information and GDPR

The Data Protection Act 1998 and GDPR are there to ensure that personal data is stored and shared appropriately

The PGDs have a template to record client assessment and any supply in App 2.

This should be completed and stored securely in line with local and national record keeping policies.

It must be kept confidential unless valid reason

It is essential to store information confidentially but there may be occasions where information needs to be disclosed

Where the person has consented

Has to disclose by law

Should do so in the public interest

Must do so in the vital interests of a person receiving treatment or care, eg immediate medical attention

There is nothing currently in law that prevents disclosure, which is justified if an individual has particular concerns about the welfare of a child

Those giving information should be made aware that any information provided may be used in civil or criminal proceedings