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9. INFORMED CONSENT It is important to consider how – and from whom - consent is gained, and
the situation in which it is sought. ‘Informed consent’ means that the
person giving it fully understands what they are agreeing to, and feels
under no pressure to give a particular response. As mentioned above, Connexions asks for
‘blanket’ consent to allow information to be put on to a database and allow
agencies to access it over a period of time. Is that reasonable? Someone of
14 - and their parents - might be perfectly willing to have information
about, say, the young person's dyslexia stored and shared, but if a year
later that same young person is going to need help with a drug problem, or
become pregnant, how is anyone to foresee the problems that sharing such
information may cause? What about sharing information about others? The practitioner guidance to
the CAF advises that information should be put in context (eg ‘Michael said
he thinks his dad is an alcoholic’) but unless there are genuine concerns
about possible abuse, should that information be recorded at all without the
consent of Michael’s dad? It seems to have become accepted practice that any teenager can be
approached directly for consent without the knowledge of their parents, so
long as the agency thinks they are ‘Gillick competent’ to give such consent.
This notion comes from a House of Lords judgment in a 1985 case, where Mrs
Gillick sought to prevent her Area Health Authority from giving her
under-age daughters contraceptive advice. The Law Lords ruled that, if a doctor or other NHS worker believed the
young person was capable of understanding the advice given to her and could
not be persuaded to involve her parents, then it was lawful for the doctor
to offer treatment without parental knowledge. This judgment was recently
reinforced by a similar case, where a Ms Axon sought to prevent doctors
offering abortion to her underage daughters without her knowledge. The important point about the Gillick case is that it provided an
exception to the common law principle that parents have responsibility for
their underage children. It should also be remembered that the House of
Lords judgment repeatedly stressed the importance of seeking to persuade the
young person at least to allow her parents to be informed, and warned that
it would be a disciplinary offence for a doctor to view the judgment as a
licence to disregard parents’ views altogether. Whether the Gillick judgment can be expanded to cover situations other
than a medical setting has not been tested in the courts. It should also be
borne in mind that offering a service to a young person where s/he flatly
refuses parental involvement is substantially different from making a
presumption in favour of excluding parents from the decision-making process. While it is undoubtedly important that a child or young person can seek help and advice in confidence, and may be perfectly capable of consenting to counselling or medical treatment, this is not the same as being competent to understand the full implications of complex and/or ongoing acts of data-sharing. It is also important to consider the circumstances in which consent is
sought. · Where a family is facing a crisis, both child and parents may be too distressed to give calm consideration to the issue of consent. · They may fear that they will be unable to access the services that they need, or worry that they will appear un-cooperative. · If consent is sought from a young person when s/he is at school - an
environment in which pupils are generally expected to obey adults, - s/he
may find it difficult to articulate objections when faced with an adult who
appears to be in a position of power. All of these difficulties are likely to be amplified if the child has
been the subject of a referral because of disciplinary infractions, or
problems such as substance abuse. At a time when parents are increasingly being held responsible for their
children’s behaviour through the use of Parenting Orders, fines and even
imprisonment, it appears anomalous that a parent can be so readily excluded
from discussions about events in their child’s life, and from decisions
about sharing information that may have serious consequences for everyone
concerned - moreover, information that may directly concern the parents or
other family members. |
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