Government re-arranges Gillick / Axon competence

[Roger Hayter]

In message <522078.72427.qm@web54505.mail.re2.yahoo.com>, Nigel 
Heffernan <heffernann@yahoo.com> writes
>
>Well spotted! This looks like a redefinition 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 misused creatively.
>
>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 children, in the sense that if you are not legally recognised as an 
>adult, someone else makes the decisions for you and can overrule you: a 
>parent, guardian, a professional person like a doctor or a social worker.
>
>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 consideration.
>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 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 been modified, or replaced by some kind of 'qualified 
>consent' by these Information Sharing guidelines.
>
>The complicating factor is that the Scarman Test (the basis of Gillick 
>competence) 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."
>
>Note that this is about the role of the parents: medical professionals 
>are still empowered to make the treatment decisions - applying the two 
>principles 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 
>'sufficient 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 the decision and the assessment-of-competence will be messy.
>
>Looking 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 take the role of the professional in privacy decisions. If 
>it's a social worker, 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/90420w00
>04.htm#09042043002184
>
>
>This is the official statement of Ross et al's concerns that Gillick 
>competence is being mis-applied to drive the age of consent for 
>information sharing 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 
>consent to information sharing; and whether parents are normally 
>involved in children's decisions about whether to consent to data 
>sharing, such as that planned for ContactPoint. [HL2684]
>
>The Parliamentary Under-Secretary of State, Department for Children, 
>Schools 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 decisions 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 expected to have sufficient 
>understanding. Children under 12 years old may also be considered to 
>have sufficient understanding. Where a practitioner has judged that a 
>child does not have sufficient understanding to give or refuse consent, 
>a person with parental responsibility should be asked to consent on 
>behalf of the child. Practitioners use their professional judgment to 
>determine 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.
>

For the sake of completeness, case law since Gillick says that while 
competent children under 16 can consent to have treatments, they cannot 
necessarily refuse treatments that parents (or certain other adults) 
feel are in their interests, even if competent to do so.  I fail to 
understand the legal basis of the distinction, let alone the mapping of 
it to consent to data sharing.  But the distinction certainly seems to 
exist as a matter of law.

-- 
Roger Hayter