Government re-arranges Gillick / Axon competence

[Nigel Heffernan]

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Roger Hayter's asked a rather subtle question:

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

--=20

The legal distinction is actually very simple: the parents and professional=
s can't just overrule the child's agreement or refusal for whatever reasons=
 they 'feel' are in their interests. To do so breaks the law, unless a very=
 clear case is made - and recorded - that documents exactly why the child's=
 best interests are served by acting against the child's expressed wishes.

I'll expand on that:=20

In this context, 'Consent' refers to situations where a competent adult has=
 the legal right to make their own binding decision and take on - or
refuse - a risk or cost or obligation, such that proceeding without that ad=
ult's consent would be a criminal offence (or, failing that, a civil tort).=
=20

You cannot overrule someone's consent, or refusal of consent, without break=
ing the law. Either it's a matter in which there is no right of refusal (fo=
r example, you don't 'consent' to go to prison) or the legal status of that=
 person is that they are not competent to give consent; in which case, the =
people who are empowered=A0 to give consent on their behalf are legally-obl=
iged to act on the basis of 'best interests'.=20

Where the law (case law or statute) specifically mentions an obligation to =
take the child's (or minor or incompetent person's) wishes into account - a=
nd sometimes the word 'consent' is used, although I argue that this is conf=
using because someone else makes the binding decision, so it's their consen=
t, not the child's=A0 -=A0 there are advocacy groups, interested parties (a=
nd, in the case of the mentally-ill and children in Local Authority care, o=
fficials with a duty to review such cases) who *will* refer the matter to t=
he CPS, or take legal action on the child's behalf if the 'best interests' =
arguments and evidence don't stack up.

I don't think these checks and balances exist for privacy issues, and there=
 is a pressing need for them now that the data systems impinging on childre=
n have become so pervasive and powerful. It will only emerge in a long mess=
 of legal actions, and people will get hurt along the way; I guess it's too=
 much to hope that the government would've done the necessary work in draft=
ing the law, in the policy decisions, and in actually doing the forward-pla=
nning to administer all this at local level. That would be *government*, ra=
ther than 'a government' pretending to govern by passing a lot of ill-thoug=
ht-out laws.

And, as IT professionals, we know full well that holes in the strategy and =
the day-to-day management always mean holes in the security and integrity o=
f the data systems.

Nile

...With apologies for a rather longwinded=A0 comment


=0A=0A=0A      
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<table cellspacing=3D"0" cellpadding=3D"0" border=3D"0" ><tr><td valign=3D"=
top" style=3D"font: inherit;">Roger Hayter's asked a rather subtle question=
:<br><br><div style=3D"margin-left: 40px;">For the sake of completeness, ca=
se law since Gillick says that while competent children under 16 can consen=
t to have treatments, they cannot necessarily refuse treatments that parent=
s (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 alo=
ne the mapping of it to consent to data sharing.  But the distinction certa=
inly seems to exist as a matter of law.<br><br>-- </div><br><br>The legal d=
istinction is actually very simple: the parents and professionals can't jus=
t overrule the child's agreement or refusal for whatever reasons they 'feel=
' are in their interests. To do so breaks the law, unless a very clear case=
 is made - and recorded - that documents <span style=3D"font-style:
 italic;">exactly </span>why the child's best interests are served by actin=
g against the child's expressed wishes.<br><br>I'll expand on that: <br><br=
>In this context, 'Consent' refers to situations where a competent adult ha=
s the legal right to make their own binding decision and take on - or
refuse - a risk or cost or obligation, such that proceeding without that ad=
ult's consent would be a criminal offence (or, failing that, a civil tort).=
 <br><br>You cannot overrule someone's consent, or refusal of consent, with=
out breaking the law. Either it's a matter in which there is no right of re=
fusal (for example, you don't 'consent' to go to prison) or the legal statu=
s of that person is that they are not competent to give consent; in which c=
ase, the people who are empowered&nbsp; to give consent on their behalf are=
 legally-obliged to act on the basis of 'best interests'. <br><br>Where the=
 law (case law or statute) specifically mentions an obligation to take the =
child's (or minor or incompetent person's) wishes into account - and someti=
mes the word 'consent' is used, although I argue that this is confusing bec=
ause someone else makes the binding decision, so it's their consent, not th=
e child's&nbsp; -&nbsp; there are advocacy groups, interested
 parties (and, in the case of the mentally-ill and children in Local Author=
ity care, officials with a duty to review such cases) who *will* refer the =
matter to the CPS, or take legal action on the child's behalf if the 'best =
interests' arguments and evidence don't stack up.<br><br>I don't think thes=
e checks and balances exist for privacy issues, and there is a pressing nee=
d for them now that the data systems impinging on children have become so p=
ervasive and powerful. It will only emerge in a long mess of legal actions,=
 and people will get hurt along the way; I guess it's too much to hope that=
 the government would've done the necessary work in drafting the law, in th=
e policy decisions, and in actually doing the forward-planning to administe=
r all this at local level. That would be *government*, rather than 'a gover=
nment' pretending to govern by passing a lot of ill-thought-out laws.<br><b=
r>And, as IT professionals, we know full well that holes in the
 strategy and the day-to-day management always mean holes in the security a=
nd integrity of the data systems.<br><br>Nile<br><br>...With apologies for =
a rather longwinded&nbsp; comment<br><br><br></td></tr></table><br>=0A=0A=
=0A=0A      
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