Patient Confidentiality - Judging teenagers' competency

Treating under-16s can be a dilemma for GPs worried about consent, says Dr John Holden of the MDU.

Queries to the MDU relating to consent and teenagers, particularly regarding contraceptive advice, are common and include how to judge if a patient aged under 16 is mature enough to give consent.

The legal age of consent for medical treatment in the UK is 16. However, under-16s may also be able to give consent if they understand the nature, purpose and hazards of a treatment.

Giving advice and treatment to under 16-year-olds without their parents' knowledge can be a dilemma. While doctors owe competent teenagers a duty of confidentiality, they may consider it is in the child's best interests to involve the parents.

Gillick competence

The question of the rights of children under 16 years of age to consent to treatment on their own behalf was considered by the House of Lords in 1985, in the case of Gillick v West Norfolk and Wisbech Area Health Authority and Another. The judgment related to decisions about contraceptive treatment, but the principles may be applied to more general medical treatment. Doctors had been concerned that by giving girls under 16 contraception they could be aiding and abetting unlawful sexual intercourse. The House of Lords ruled that doctors should have the discretion to act according to their view of what is in the best interests of the patient. While the case applied to England and Wales, the law is similar in Scotland and Northern Ireland allowing all GPs to approach the issue in the same way.

Parental consent is not needed if the teenager understands the doctor's advice; the doctor cannot persuade the teenager to inform her parents or allow the doctor to inform her parents that she is seeking contraceptive advice; the teenager is likely to begin or continue to have sex with or without contraceptive treatment; the teenager's physical or mental health or both would suffer without contraceptive advice; or it is in the teenager's best interests to receive advice, treatment, or both, without parental consent.

Current guidelines

The Gillick competence is enshrined in the GMC's advice which applies to all UK doctors. DoH guidelines (July 2004) on contraception stress a doctor's duty of confidentiality when treating teenagers. The guidelines were recently subject to a judicial review, after a mother argued that parents had the right to know about a teenager seeking a termination.

This was rejected by the High Court.

In Seeking Patient's Consent; the Ethical Considerations, the GMC says that GPs must assess a child's capacity to give or refuse consent before providing treatment. A competent child will be able to understand the nature of the proposed investigation or treatment, as well as the consequences of non-treatment.

It is important that competent teenagers feel able to consult their doctor about contraception, abortion, or any other aspect of their health in confidence. GPs need to decide whether the child is mature enough to consent to treatment on their own behalf. The doctor should discuss with them the issue of involving their parents. Children under 16 can truly consent to treatment only if they understand its nature, purpose and hazards.

That ability will vary with age, the child and the nature of the treatment.

If in doubt, it is advisable to seek advice from your medical defence organisation before proceeding.

CASE STUDY

A GP registrar was consulted by a 15-year-old girl with an ectopic pregnancy.

She had been prescribed the contraceptive pill by the local family planning clinic for over 12 months. The girl asked the doctor not to tell her parents about the pregnancy or the treatment.

The MDU advised that a child under 16 can consent to treatment without parental agreement if the child has the intelligence and maturity to understand the nature, purpose, benefits and risks of the treatment, as well as the risk of going untreated and any alternatives. If so, her consent alone may be valid.

If the child has capacity to consent, she has the capacity to give or withhold consent to disclosure of confidential information. The registrar was advised to take reasonable steps to persuade her to involve her parents.

If she refused, the registrar was advised to accept her consent as valid.

If the patient wants to involve her parents, you can give them a full explanation. If she does not give an indication either way, you must ask her permission before disclosing any information.

- Dr Holden is a medico-legal adviser with the MDU

- The case mentioned is fictitious, but based on cases from the MDU's files. Doctors with specific concerns are advised to contact their medical defence organisation for advice.

AGE OF CONSENT

England and Wales:

- Family Law Reform Act, 1969.

Scotland:

- Age of Legal Capacity (Scotland) Act 1991.

Northern Ireland:

- Age of Majority Act (Northern Ireland) 1969.

LEARNING POINTS

What GPs need to know about teenagers and contraception

- The legal age for consent for medical treatment is 16.

For those aged under 16, GPs must assess a child's capacity to give or refuse consent before providing treatment.

In 1985, the House of Lords ruled that doctors should have the discretion to act according to their view of what is in the best interest of the patient.

A competent child will be able to understand the nature, purpose and possible consequences of the proposed investigation or treatment, as well as the consequences of non-treatment.

If in doubt, it is advisable to seek advice from your medical defence organisation.

REFERENCES

Best Practice Guidance for Doctors and Other Health Professionals in the Provision of Advice and Treatment to Young People Under 16 on Contraception, Sexual and Reproductive Health. Department of Health, July 2004. http://www.dh.gov.uk/assetRoot/04/08/69/14/04086914.pdf

Queens Bench Division of the High Court Regina (Axon) v Secretary of State for Health before Mr Justice Silber.

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