Legal Opinion

LEGAL OPINION

Press Release 14/12/05

SEXUAL HEALTH ADVICE RULES MAY BREACH HUMAN RIGHTS ACT

Rules requiring professionals to breach confidentiality and inform the police about young people believed to be in sexual relationships are likely to breach the right to respect for private life under Article 8 of the European Convention on Human Rights, says a leading human rights lawyer.

For several months professionals have been protesting about Protocols from the Sheffield and Pan-London Area Child Protection Committees that say they must carry out full personal assessments on anyone under 18 who is in a relationship, share information about the young person with other professionals, and carry out police checks. In October, more than twenty organisations released a joint statement criticising the Protocols and expressing concern that the Government may adopt them as national policy.

Stephen Grosz, a partner in London solicitors Bindmans says that it is: “little short of astonishing” that the Protocols were drafted without a single reference to the Human Rights Act.

Government and professional guidance make it clear that the confidentiality of sexual health services should only be breached where a young person is at risk of harm. Stephen Grosz believes that it is “difficult to justify” automatic referral to the police, and that the Protocols: “…do not set out clearly that police checks, referral and assessment take place only in cases where intervention may be necessary to prevent significant harm. Moreover, there appears to have been little or no attempt to set out the factors which might be taken into account in striking the necessary balance.”

The Protocols: “do not set out with any precision the safeguards which are to apply to the recording, exchange and dissemination of information held by the relevant agencies. In particular it is not clear who will have access to the data which will be held by the police, and under what conditions”.

Stephen Grosz believes that requiring routine assessment on all under-18s involves a disproportionate interference with their right to respect for their private life.

“To the extent that the Protocols require routine assessment, including information sharing and police checks, they appear to leave little or no scope for the exercise of professional judgment in order to strike a balance based on an assessment of the circumstances of the individual case. … It is particularly hard to see what justification there can be for routine assessment – if that is what is intended – in the case of those in the 16-18 year age group, where the prevention of crime will normally afford no justification at all”.

Criticising the Protocols as “poorly-written” and lacking clear definition, Stephen Grosz warns that they create a potentially over-broad power of intervention. The Sexual Offences Act 2003 made all consensual sexual activity between young people – including kissing – a criminal offence. Stephen Grosz says that the use of such a broad definition, combined with “vague and confusing indications” in the Protocols, makes it difficult for professionals to know when action should be taken.

“In my opinion, a Convention-compatible Protocol should lay down clear definitions of the activity which is to trigger interference…the definition of such activity should be limited to the identification of significant harm”.

NOTES FOR EDITORS:

Electronic copies of the full legal opinion can be obtained by e-mailing

terri@arch-ed.org

The Joint Statement on Confidentiality of Adolescent Sexual Health Services can be seen at: http://www.arch-ed.org/issues/shs/js231005.htm

CONTACT DETAILS

The following can be contacted for more information:

Stephen Grosz

s.grosz@bindmans.com

020 7833 4433

Action on Rights for Children (ARCH)

Terri Dowty