Government re-arranges Gillick / Axon competence

[Nigel Heffernan]

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Well spotted! This looks like a redefinition of the law of consent and priv=
acy for children; I'm not sure whether it's an improvement or a curtailment=
, but I'm prepared to bet that it'll be misused creatively.=20

I'll expand on this, as I understand the current state of the law:

In layman's terms, the law does not recognise 'consent' when referring to c=
hildren, in the sense that if you are not legally recognised as an adult, s=
omeone else makes the decisions for you and can overrule you: a parent, gua=
rdian, a professional person like a doctor or a social worker.=20

However:

The overriding principle is that the interests of the child are paramount.A=
 secondary principle is that the wishes of the child must be taken into con=
sideration.
The first of those principles trumps everything in all cases where the law =
impinges on a decision involving a child. The second principle is fairly re=
cent - it comes from 'Rights of the Child' declarations and directives, and=
 it is still being worked into English Law. But is does seem to have been m=
odified, or replaced by some kind of 'qualified consent' by these Informati=
on Sharing guidelines.=20

The complicating factor is that the Scarman Test (the basis of Gillick comp=
etence) applies in a very specific circumstance:

"As a matter of Law the parental right to determine whether or not
their minor child below the age of sixteen will have medical treatment
terminates if and when the child achieves sufficient understanding and
intelligence to understand fully what is proposed."
=20
Note that this is about the role of the parents: medical professionals are =
still empowered to make the treatment decisions - applying the two principl=
es above - which means that we're not really talking about 'consent' in the=
 legal sense of an adult making a binding decision.

Note, also, that this is a separate issue from the assessment of 'sufficien=
t understanding and
intelligence''. You can be sure that there will be attempts to confuse and =
conflate the two and any situation where it's the same person making both t=
he decision and the assessment-of-competence will be messy.

Looking at the the first issue - the role of the medical professional in ma=
king the decisions when treating a child - I find myself wondering who will=
 take the role of the professional in privacy decisions. If it's a social w=
orker, well and good: but the phrase 'Practitioners and Managers' suggests =
that it could be any person nominated by the Secretary of State.

I think we need an expert opinion here.

Nile


"Ian Batten" <igb@batten.eu.org> wrote:


http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90420w0004.=
htm#09042043002184


This is the official statement of Ross et al's concerns that Gillick compet=
ence is being mis-applied to drive the age of consent for information shari=
ng down to 12, or even below.  On what basis are children aged 12 presumed =
to be able to consent to information sharing?  It's not at all clear...

ian


Asked by Baroness Miller of Chilthorne Domer

To ask Her Majesty's Government at what age they deem a child able to conse=
nt to information sharing; and whether parents are normally involved in chi=
ldren's decisions about whether to consent to data sharing, such as that pl=
anned for ContactPoint. [HL2684]

The Parliamentary Under-Secretary of State, Department for Children, School=
s and Families (Baroness Morgan of Drefelin): The law provides that a child=
 or young person who has the capacity to understand and make their own deci=
sions may give (or refuse) consent to information sharing. This is presumed=
 for young people to be aged 16 years and older unless there is evidence to=
 the contrary. However, children aged 12 years or over may generally be exp=
ected to have sufficient understanding. Children under 12 years old may als=
o be considered to have sufficient understanding. Where a practitioner has =
judged that a child does not have sufficient understanding to give or refus=
e consent, a person with parental responsibility should be asked to consent=
 on behalf of the child. Practitioners use their professional judgment to d=
etermine whose consent should be sought. Information Sharing: Guidance for =
Practitioners and Managers sets out clearly the considerations that
 should be made when determining whose consent should be sought.



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<table cellspacing=3D"0" cellpadding=3D"0" border=3D"0" ><tr><td valign=3D"=
top" style=3D"font: inherit;"><br>Well spotted! This looks like a redefinit=
ion of the law of consent and privacy for children; I'm not sure whether it=
's an improvement or a curtailment, but I'm prepared to bet that it'll be m=
isused creatively. <br><br>I'll expand on this, as I understand the current=
 state of the law:<br><br>In layman's terms, the law does not recognise 'co=
nsent' when referring to children, in the sense that if you are not legally=
 recognised as an adult, someone else makes the decisions for you and can o=
verrule you: a parent, guardian, a professional person like a doctor or a s=
ocial worker. <br><br>However:<br><br><ul><li>The overriding principle is t=
hat the interests of the child are paramount.</li><li>A secondary principle=
 is that the wishes of the child must be taken into consideration.</li></ul=
><br>The first of those principles trumps everything in all cases where the
 law impinges on a decision involving a child. The second principle is fair=
ly recent - it comes from 'Rights of the Child' declarations and directives=
, and it is still being worked into English Law. But is does seem to have b=
een modified, or replaced by some kind of 'qualified consent' by these Info=
rmation Sharing guidelines. <br><br>The complicating factor is that the Sca=
rman Test (the basis of Gillick competence) applies in a very specific circ=
umstance:<br><br><div style=3D"margin-left: 40px;"><i>"As a matter of Law t=
he parental right to determine whether or not
their minor child below the age of sixteen will have medical treatment
terminates if and when the child achieves sufficient understanding and
intelligence to understand fully what is proposed."</i><br></div> <br>Note =
that this is about the role of the parents: medical professionals are still=
 empowered to make the treatment decisions - applying the two principles ab=
ove - which means that we're not really talking about 'consent' in the lega=
l sense of an adult making a binding decision.<br><br>Note, also, that this=
 is a separate issue from the assessment of '<i>sufficient understanding an=
d
intelligence''. </i>You can be sure that there will be attempts to confuse =
and conflate the two and any situation where it's the same person making bo=
th the decision and the assessment-of-competence will be messy.<br><br>Look=
ing at the the first issue - the role of the medical professional in making=
 the decisions when treating a child - I find myself wondering who will tak=
e the role of the professional in privacy decisions. If it's a social worke=
r, well and good: but the phrase 'Practitioners and Managers' suggests that=
 it could be any person nominated by the Secretary of State.<br><br>I think=
 we need an expert opinion here.<br><br>Nile<br><br><br><div style=3D"margi=
n-left: 40px;">"Ian Batten" &lt;igb@batten.eu.org&gt; wrote:<br><br><br>htt=
p://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90420w0004.htm=
#09042043002184<br><br><br>This is the official statement of Ross et al's c=
oncerns that Gillick competence is being mis-applied to drive the age
 of consent for information sharing down to 12, or even below.  On what bas=
is are children aged 12 presumed to be able to consent to information shari=
ng?  It's not at all clear...<br><br>ian<br></div><br><br><div style=3D"mar=
gin-left: 80px;"><div style=3D"text-align: center;"><span style=3D"font-wei=
ght: bold;">Asked by Baroness Miller of Chilthorne Domer</span><br></div><b=
r>To ask Her Majesty's Government at what age they deem a child able to con=
sent to information sharing; and whether parents are normally involved in c=
hildren's decisions about whether to consent to data sharing, such as that =
planned for ContactPoint. [HL2684]<br><br>The Parliamentary Under-Secretary=
 of State, Department for Children, Schools and Families (Baroness Morgan o=
f Drefelin): The law provides that a child or young person who has the capa=
city to understand and make their own decisions may give (or refuse) consen=
t to information sharing. This is presumed for young people to be aged 16
 years and older unless there is evidence to the contrary. However, childre=
n aged 12 years or over may generally be expected to have sufficient unders=
tanding. Children under 12 years old may also be considered to have suffici=
ent understanding. Where a practitioner has judged that a child does not ha=
ve sufficient understanding to give or refuse consent, a person with parent=
al responsibility should be asked to consent on behalf of the child. Practi=
tioners use their professional judgment to determine whose consent should b=
e sought. Information Sharing: Guidance for Practitioners and Managers sets=
 out clearly the considerations that should be made when determining whose =
consent should be sought.<br></div><br><br><br></td></tr></table><br>=0A=0A=
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