Rights and Interests of Children
General Medical Council (UK) guidance:-
"You should involve children and young people as much as possible in discussions about their case, even if they are not able to make decisions."
"A young person's ability to make decisions depends more on their ability to understand and weigh up options, than on their age."

There are three main legal areas that govern the legal rights of children and protect their interests. These include:

  • The Children Act 1989
  • Family Reform Act 1969
  • Common Law: Gillick vs.West Norfolk and Wisbech Area Health Authority

(Scotland has different Acts)

The Children Act 1989
This Act outlines that the Child's welfare is of utmost importance and their views must be respected in the appropriate circumstances. It is a list of general principles that one should keep in mind when dealing with cases involving children so as to maximally promote and protect their general welfare and to guide actions that are in their best interest.

Although aimed at court decisions, is useful for medical practice, in particular:-

  • "A court shall regard in particular to the ascertainable wishes and feelings of the child concerned"
  • "His physical, emotional and educational needs."
  • "The likely effect on him of any change in his circumstances"
  • "Any harm which he has suffered or is at risk of suffering"
  • "How capable parents and other people are in meeting the needs of the children"
  • "The age, sex and background, and any characteristics which the court considers relevant."

It also outlines exactly who has parental responsibility or guardianship.

The Act allows anyone with parental responsibility to act alone (the consent of 1 parent is necessary)

Family Law Reform Act 1969
Those who are 16 years old or above has the same legal ability to consent to any medical, surgical or dental treatment as anyone above 18, without the consent from his parent or guardian.

This does NOT mean that they have a right to refuse treatment (see below).

Right to Refuse Treatment
  • Those who are under 18 years old who has capacity and refuses therapeutic treatment, as long as there is one consenting parent or guardian (even if the other refuses), the medical staff can proceed.
  • This is because it is done with the best interest of the child in mind.
  • However if the intervention is non-therapeutic (i.e. male circumcision on religious grounds) and both parents disagree, then a court ruling should be sought
  • If the treatment/investigation is non-urgent but still in the best interests of the child the clinician can request a "specific issue order" under the Children's Act 1989.
  • Once a minor is made ward of the court, then no major treatment can be given without permission of the court.
Common Law: Gillick V West Norfolk AND Wisbech Area Health Authority 1984-5
  • "Gillick Competence" - any child who is under the age of 16 can consent, if he or she "reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision".
  • This however, does not mean they have a right to refuse treatment.
  • Also, what is deemed 'sufficient' for understanding and intelligence?
"Gillick And Fraser are not interchangeable"
Gillick competence refers to the assessment that doctors could make in regards to whether a child under 16 has the capacity to consent to treatment without parental or guardian consent. Fraser guidelines is in reference to Lord Fraser's involvement with the Gillick case. He commented on the responsibility of doctors to ensure adequate capacity of children specifically on receiving contraceptive prescription and advice. It makes no comment on the capacity of children for any other treatments or procedure.

Also, shedding light on the rumours being spread around the medical profession recently, Wheeler 2006 mentions that Victoria Gillick "has never suggested to anyone, publicly or privately, that [she] disliked being associated with the term 'Gillick competent' ".

  • The Fraser Guidelines:
  • The young person understands the advice being given.
  • The young person cannot be convinced to involve parents/carers or allow the medical practitioner to do so on their behalf.
  • It is likely that the young person will begin or continue having intercourse with or without treatment/contraception.
  • Unless he or she receives treatment/contraception their physical or mental health (or both) is likely to suffer.
  • The young person's best interests require contraceptive advice, treatment or supplies to be given without parental consent.
Underage Sex & Sexual Offences Act 2003
Much has been written regarding capacity and consent and ways to approach it. In the case of anyone under 18, contraceptive advice and prescription are backed by Gillick competence and Fraser guidelines. But the legality of a minor engaging in sexual intercourse is a major area. Should the doctor prescribe if he knows that the child under 16 may engage in sexual intercourse?

  • Legal aspects covered by Sexual Offences Act 2003
  • The partner involved is committing an offence under section 9 for Sexual activity with a child.
  • Similar to adults convicted under section 9, the same rules apply for offenders under 18, although the maximum imprisonment sentence drops from 14 years to 5 years.
  • However, if the person involved reasonably believes that the child between ages 13 and 16 is 16 years old or over, he or she would not be committing an offence.
  • Under no circumstances would it be legal for someone to engage in sexual activity with a child under 13.
  • A comment by Lord Parker C J in 1965 on Regina V Howard reiterates how the court views this, even when the child aged under 16 consents to intercourse
    "...the law has provided no such consent affords no defence to a man on a charge of carnal knowledge of a girl under sixteen".

  • With regards to doctor's liability to providing contraception and advice
    • A doctor is not liable according to the Act even if he believes the offence would take place, but that the doctor does not intend the person to do so.
    • The doctor is seen as acting to protect the child according to the Act, by preventing STIs, preventing child from becoming pregnant, and promoting the child's well-being by giving advice.

However, one must understand that although it is an offence if such an act takes place, for a child who comes and seeks advice and contraception, that act has yet to take place.

Provided by latest GMC guidelines on confidentiality (published 2004, in 2009 pack):-
  • Can be shared with others providing care, but if the patient refuses, it should be upheld unless death or serious harm the patient is at risk of.
  • "You must not disclose personal information to a third party such as a solicitor, police officer or officer of a court with the patient's express consent", except In these circumstances:-
    • The patient or others is at risk of death or serious harm
    • "Where a disclosure may assist in the prevention, detection, or prosecution of a serious crime, especially crimes against the person, such as abuse of children."

Whether to breach confidentiality or not is on the judgement of the doctor whether or not without disclosure, the child is at risk of serious harm.

Generally speaking, disclosure is seen as acceptable if the child is under 13, or the partner involved is 18 or above. A grey area would be those involved who are between 14 and 17 and are Gillick competent, and refuses to disclose to their parents or for the doctor to disclose this information. In these cases, one should assess whether serious harm is involved, and whether a breach in confidentiality will affect the doctor-patient relationship.

Protection Orders

If you assess a child and believe that they might be at significant harm, then there are various protection orders present. These enable the local authority to take over the care of the child and give that authority parental responsibility. The doctor is obliged to report any suspicion of child abuse to social services at the local authority.

Emergency Protection Order EPO) if there is time:

  • Lasts 8 days (renewable for a further 7 days)
  • Applied to the Magistrates Court by anyone who then gains parental responsibility (usually local authority)
  • To prevent significant harm and/allow investigation, including medical and psychiatric examination

Police (PPO) if this is urgent:

  • 72 hours (not renewable)
  • Police officer makes decision as EPO's function

Child Assessment Order (CAO) if child is not at immediate risk:

  • Lasts 7 days (not renewable)
  • Applied to Magistrates Court (by Local Authority or NSPCC)
  • Non-urgent medical, social or other investigation. Mostly used when there is suspicion of harm but lack of evidence.
  • Wheeler R.(2006) Gillick or Fraser? A plea for consistency over competence in children: Gillick and Fraser are not interchangeable. British Medical Journal , 332 (8 April): 807.
  • Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7 (17 October 1985) from the British and Irish Legal Information Institute (BAILII) website.
  • Regina v howard (1965) Lord parker C.J.
  • Sexual Offences Act 2003