Doctors have to strike a balance between allowing a young person to make autonomous choices about their sexual health and ensuring that their best interests are protected.
This can be challenging as the following scenario shows.
On a busy Monday morning, Dr Smith agrees to see a young patient, Sarah Jones, urgently. She is 15 and the daughter of one of the practice receptionists.
Sarah tearfully tells him that she thinks she is three months pregnant but has not told her 16-year-old boyfriend as she is worried he will want her to keep the baby. She has thought things over and requests a termination.
Sarah tells Dr Smith that she has come to see him because she can trust him. She begs him not to tell her parents.
For consent to treatment to be valid, the patient should have the capacity to consent, they should be informed of their choices, and should give consent freely.
In England, Wales and Northern Ireland, a child is legally a minor until the age of 18, although at the age of 16 they can consent to treatment.
Except in Scotland, the right of children under 16 to consent to treatment in the UK is based on case law, or 'Gillick' competency, rather than statute. This relates to the 1984 Gillick judgment that parental authority 'yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence ...'
In Scotland, legal adulthood is age 16, but children under 16 have legal capacity to consent to treatment if they understand the nature and consequences.
See the box for factors the doctor needs to consider when offering treatment to under-16s without parental knowledge or permission.
One of the most difficult challenges is making an initial assessment of capacity. Under the Mental Capacity Act 2005 (England and Wales), a person cannot make a decision for themselves if they are unable to: understand the information relevant to the decision; retain that information; use or weigh that information as part of the process of making the decision, or communicate that decision.
Capacity depends on what is being proposed. You should take time to allow for full explanations and for proper assessment of capacity, particularly if a patient is distressed.
In a busy surgery this may be difficult. Dr Smith has to balance the decision to invite the young patient, Sarah, back when the surgery is quieter, against the risk that she may not return.
Under-16s are the age group least likely to use contraception, and their concern about confidentiality can be a deterrent to seeking advice.
Young patients have the same right of confidentiality as any other patient - and this should be respected unless there is a good reason. Seeking a termination of pregnancy in itself is no reason to go against the patient's request for confidentiality. In this instance if deemed competent, the patient should be reassured of confidentiality.
You should encourage the patient to confide in a parent or other responsible adult, who may help them cope with any adverse effects or emotional upset following the procedure.
Depending on the patient's age, it is a matter of judgment when it might be in the patient's interests to involve their parents or another agency. Wherever possible explain this to the patient in advance so that they understand why it is necessary.
In some circumstances, it may be a person with parental responsibility who withholds consent to information sharing. If you believe the child's welfare is at stake then it is possible to override the parent's refusal in these circumstances.
All primary care organisations should have a locally agreed child protection protocol. A practitioner's guide to information sharing is produced by Every Child Matters (www.everychildmatters.gov.uk).
Consent and confidentiality issues are exactly the same for termination of pregnancy as for any other treatment or procedure. Recent case law has confirmed this and established that the parent of a competent child has no right to know if their child is being advised on abortion.
Young people should be involved in making choices about their healthcare. Any consultation should be focused on the patient's needs, taking into account their age and capacity for understanding. Involving parents or other third parties should be tackled with the patient's best interests in mind.
There are pros and cons to knowing the family or patient well. Dr Smith should remember his duty of confidentiality is to the patient and he may need to take steps to protect information about the patient from inappropriate access by the parent.
Perhaps the biggest challenge with teenage pregnancy is to give young people the confidence they need to seek contraceptive advice in the first instance.
- Dr Su Jones is a senior medico-legal adviser at the Medical Protection Society, www.medicalprotection.org
|Consent and the Under-16s|
When offering contraceptive services or other treatment without parental knowledge or permission, you should consider if: