15.2.1.1 Introduction

Good medical practice states that doctors must safeguard and protect the health and well-being of children and young people. Well-being includes treating them as individuals and respecting their views, as well as considering their physical and emotional welfare [1]. Respecting their views implies imparting information to involve them in decision-making.

15.2.1.2 Sexual Activity, Consent and the Law

In law, any competent young person in the United Kingdom can consent to medical treatment, including contraception. Young people aged 16 years of age and older, including those with a disability/impairment, are presumed to be competent to give consent to medical treatment unless otherwise demonstrated. For young people under the age of 16 years, however, competence to consent has to be demonstrated [2].

The age of consent to sexual activity in the United Kingdom is 16 years [2]. Although unlawful, mutually agreed sexual activity between under-16-year-olds of similar age would not generally lead to prosecution unless there was evidence of abuse or exploitation. Under the Sexual Offences Act 2003, a girl under 13 years of age is not considered capable of giving her consent to sexual intercourse [3]. According to the Sexual Offences Act of 2009, sexual activity with a male or female aged under 13 years will be ‘rape of a young child’ [2].

15.2.1.3 Assessing Competence

Competence is demonstrated if the young person is able to

1. 
   

   1. Understand the treatment, its purpose and nature and why it is being proposed

   
   
2. 
   

   2. Understand its benefits, risks and alternatives

   
   
3. 
   

   3. Understand in broader terms what the consequences of the treatment will be

   
   
4. 
   

   4. Retain the information for long enough to use it and weigh up in order to arrive at a decision [2]

Children under the age of 16 can consent to their own treatment if they’re believed to have enough intelligence, competence and understanding to fully appreciate what is involved in their treatment. This is known as being Gillick competent.

15.2.1.4 Capacity to Consent

The working test for assessing capacity in young people is the same as that for adults. Only if the young person is able to understand, retain, use and weigh the information, and communicate their decision to others can they consent to the treatment [1]. The assessment of a young person’s capacity to make a decision about contraception or medical treatment is a matter of clinical judgement guided by professional practice and legal requirements. Assumptions should not be made about an individual’s capacity to consent based on age alone or on disability [2].

15.2.1.5 Fraser Guidelines

It is considered good practice to follow the Fraser guidelines in providing contraceptive advice to young people under the age of 16 years without parental consent [2]. The Fraser criteria include the following:

1. 
   

   1. The young person understands the professional’s advice.

   
   
2. 
   

   2. The young person cannot be persuaded to inform their parents.

   
   
3. 
   

   3. The young person is likely to begin, or continue having, sexual intercourse with or without contraceptive treatment.

   
   
4. 
   

   4. The young person’s physical or mental health, or both, is likely to suffer unless the young person receives contraceptive advice and/or treatment.

   
   
5. 
   

   5. The young person’s best interests require them to receive contraceptive advice and/or treatment with or without parental consent.

15.2.1.6 Young People with Capacity: Refusal of Treatment

By virtue of the Family Reform Act 1969, people aged 16–17 years are presumed to be capable of consenting to their own medical treatment and any ancillary procedures, including anaesthesia. However, unlike the case with adults, the refusal of a competent person aged 16–17 years may, in certain circumstances, be overridden by a person with parental responsibility or by a court [3].

It should be noted that ‘parents cannot override the competent consent of a young person to treatment that is considered to be in the best interest of the young person’. In England, Wales and Northern Ireland, the law on parents overriding young people’s competent refusal is complex [1]. Resort to the courts is advised.

15.2.1.7 Young People without Capacity

Where a child lacks the capacity to consent, only a holder of ‘parental responsibility’ or the court can give consent to treatment on behalf of a minor [3]. It is usually sufficient to have consent from one parent. If parents cannot agree and disputes cannot be resolved informally, legal advice should be sought [1].

The legal framework for the treatment of young people aged 16–17 years who lack capacity to consent differs across the United Kingdom. Refer to the GMC guidance for further details [1].

15.2.2.1 Significance

A confidential sexual health service is essential for the welfare of children and young people. Concern about confidentiality is the biggest deterrent to young people asking for sexual health advice. The same duties of confidentiality apply when using, sharing or disclosing information about children and young people as about adults [1].

15.2.2.2 Disclosure

However, this duty of confidentiality is not absolute. Disclosure of relevant information with appropriate people or agencies is usually necessary under the following conditions:

1. 
   

   1. Where sexual activity involves children under 13, who are considered in law unable to consent

   
   
2. 
   

   2. If the child or young person is involved in abusive or seriously harmful sexual activity, including that which involves

   
   
   
   
   • 
     

     A young person too immature to understand or consent

     
     
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     Big differences in age, maturity or power between sexual partners

     
     
   • 
     

     A young person’s sexual partner having a position of trust

     
     
   • 
     

     Force or the threat of force, emotional or psychological pressure, bribery or payment, either to engage in sexual activity or to keep it secret

     
     
   • 
     

     Drugs or alcohol used to influence a young person to engage in sexual activity when they otherwise would not

     
     
   • 
     

     A person known to the police or child protection agencies as having had abusive relationships with children or young people [1]

   
   

15.2.2.3 Disclosure without Consent

Consent of the young person must be sought in the first instance if they have the capacity to consent, unless it is deemed inappropriate or impractical to ask for consent. Inform the child or young person the reason for the disclosure, the information that will be shared and with whom, and ask for consent for the disclosure. However, consent is not essential

1. 
   

   1. If there is an overriding public interest in the disclosure

   
   
2. 
   

   2. When the disclosure is required by law

   
   
3. 
   

   3. When the disclosure is in the best interests of the child [1]

If the child or the young person refuses consent, or if it is not practical or appropriate to ask for consent, disclosure may still be necessary to protect the child or young person, or someone else, from risk of death or serious harm. Such cases may arise, for example, if

1. 
   

   1. A child or young person is at risk of neglect or of sexual, physical or emotional abuse

   
   
2. 
   

   2. The information would help in the prevention, detection or prosecution of serious crime, usually crime against the person

   
   
3. 
   

   3. A child or young person is involved in behaviour that might put them or others at risk of serious harm, such as serious addiction, self-harm or joyriding [1]

15.2.2.4 Caldicott Principles

Patient information is generally held under legal and ethical obligations of confidentiality [4]. The Caldicott principles include the following:

1. 
   

   1. Justify the purpose of using, sharing or disclosing patient-identifiable information (PII).

   
   
2. 
   

   2. Don’t use PII unless it is absolutely necessary.

   
   
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   3. Use the minimum necessary PII.

   
   
4. 
   

   4. Access to PII should be on a strict need-to-know basis.

   
   
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   5. All staff should be aware of their responsibilities.

   
   
6. 
   

   6. All staff should understand and comply with the law.

   
   
7. 
   

   7. The duty to share information can be as important as the duty to protect confidentiality [4].

15.3.2.1 Child Maltreatment

15.3.2.2 Children

Anyone who has not yet reached their eighteenth birthday is a child. The fact that a child has reached 16 years of age, is living independently or is in further education, is a member of the armed forces, is in hospital or is in custody in the secure estate does not change their entitlements to services or protection [Reference Her Majesty’s Government6].