Patients under sixteen right to medical confidentiality


Last months news reported Mr Justice Silber ’s dismissal of a claim concerning patients under sixteen right to confidentiality when seeking advice and treatment on contraceptives, sparking much controversy over potential infringement of parental rights.
The Claimant, a parent, was refused judicial review by way of declarations that:

Doctors should be obliged to disclose such advice and treatment to parents of under sixteen in relation to contraception, abortion and sexually transmitted diseases and so not provide such advice or treatment without parental knowledge.

Literature published in June 2004 by the Secretary of Sate for Health, which provided a guideline for Doctors and health professionals on advising and treating patients under sixteen about contraception, Sexual and Reproductive Health should be declared unlawful.

The application was dismissed and raised significant debate as to whether providing confidential advice and treatment to under sixteen’s interferes with parents right in accordance with Article 8 of the European Convention of the Human Rights.
To what extent does this confidentiality affect parental responsibility for their children’s mental and moral well being? Alternatively should there be a higher degree of confidentiality so as to not deter under sixteen’s from seeking advice and treatment? Would more confidentiality result in an increase in protection of health in society from sexually transmitted disease, child pregnancies, and further increase the use of contraceptives?
Legal Position
The case of Gillick V West Norfolk and Wisbech Health Authority provides the guidelines that have to be complied with when a Doctor or Health Care Professional is providing advice and treatment. Patients under 16 can be provided with such treatment and advice if they are deemed to be ‘competent’.
The standard of competence is dependent on the patient’s ability to fully understand what is being proposed, the choices available to them, the consequences of such choices and its implications.
Guidelines as to judging who qualifies as being ‘competent’ have been set out for Doctors and Health Care Professionals to comply with:

The patient must understand all the risks and benefits of the treatment.
Parental support must be encouraged, or alternatively informing another adult in the Child’s life.
When advising or treating for contraceptives the Doctor/ healthcare Professional should consider whether the patient’s psychical or mental health is likely to suffer as a result of not receiving or receiving contraception.
Priority should be given to the patient’s best interest.
The concern raised by parents of the above is whether these guidelines gave Doctors/Health Care Professionals approval to disregard parental rights and responsibilities and additionally how it is possible to determine whether a child is ‘sufficiently mature’ to be ‘competent’? How competent are children in making their own decisions?
European Convention on Human Rights
Article 8 (1) of the Human Rights Act states ’Everyone has the right to respect for his private and family life’ and further the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.
There is the view that as a child gets older they are able to make decisions on their own accord and understand the consequence of their own actions therefore parental rights to a family life naturally reduce. If a child is ‘competent ‘ enough to understand the medical advice and treatment being given should they be prevented from receiving this just so that parents can retain parental rights in accordance with this Act?

The United Nations Convention on the Rights of the Child 1989 (UNCRC)
The rights of children have considerably increased through Human Rights laws.

Article 3 (1) : the best interest of the child should be a primary consideration in all actions concerning children
Article 5: requires that children’s rights should be exercised in accordance with their evolving capacities.
Article 12: requires that in all decisions effecting children due weight should be attached to their views.
Summary
Recent developments in both case law and human rights laws have held a crucial impact over patients under sixteen’s right to confidentiality. The difficulty is in distinguishing between the rights, responsibilities and entitlement of parents against under sixteen-year olds entitlement to advice and treatment as a personal and private choice.
[1986] 1 AC 112