Gillick competence + GDPR = Parental rights overturned
Background: From April 2015 patients registered with a GP in England have had the right to have online access to their medical records. Up until May this year, an individual having parental responsibility for a child under 16, wishing to see the child’s medical record, could apply to a health professional for information and, barring sound reason for refusal, they had to provide it. Similarly, if the parent wished to see their child’s GP or other medical practitioner in order to discuss matters relating to the child’s heath, then the doctor was obliged to see them.
Contraceptive provision: As exception to the above, since the House of Lords 1985 decision in the Gillick case, children under 16 have been deemed capable of giving consent to contraceptive provision and certain sexual health conditions requiring treatment, without either their parents’ knowledge or approval. As stated by Lord Scarman, all that was required was that they had sufficient understanding and intelligence to fully understand what was involved in the proposed treatment, including its purpose, nature, likely effects and risks, chances of success and the availability of other options (Gillick v West Norfolk Area Health Authority  AC 112 House of Lords).
The Fraser guidelines, so called because delivered as part of Lord Fraser’s judgment in the same case, apply specifically to contraception and sexual health and elaborate this principle. As well as having sufficient maturity and intelligence to understand the proposed treatment, Lord Fraser said, treatment was justified if it was known that the child was likely to have or continue to have sexual intercourse, as result of which, without contraceptive provision, their physical or mental health might suffer.
Since that time, Gillick competency and the Fraser guidelines have been the yardstick for treatment of adolescents in contraceptive provision and sexual health matters, and have been invoked as justification for a wide variety to questionable ‘treatments’, ranging from giving contraceptive implants to twelve year olds, who ‘might’ foreseeably become sexual active in the near future; to arranging abortions for underage girls without their parents’ knowledge; to doling out the Morning After pill like smarties to girls who, despite all the teaching, regularly fail to take precautions when having sex.
But, post GDPR, the current BMA guidance on confidentiality and the disclosure of health records in relation to children goes far beyond this, entirely removing the parent’s right to any and all knowledge of their child’s medical history and treatment without explicit permission of the child.
‘So what?’ a lot of people say. ‘This is only consolidating what’s already happening! What’s all the fuss about?’
With respect, this is not just wrong, but potentially dangerous. First, this extension of data protection regulation to children’s medical records in their entirety is an unwarrantable extension of case law. The guidance is being imposed without public consultation or legal sanction – neither GDPR nor the enabling Data Protection Act 2018 provide for this. Yet it now appears to be NHS policy! Second, any such policy raises serious safeguarding concerns, not just in relation to an increased risk to children of sexual exploitation and abuse by unscrupulous predators, but also more generally in relation to matters of sexual health and child welfare. For example, infection rates for STIs amongst young people are already at epidemic level – if all possibility of parental oversight is removed, this can only get worse. Similarly, we still have the highest teenage pregnancy rate in Western Europe, and 1 in 20 children in the UK have been sexually abused. How will so-called child confidentiality help address any of these problems? Indeed, abusers and sex groomers must think they’ve been given amnesty!
VfJUK asks: what is behind this policy?
As a society, we have up to now taken measures to protect children from hazards that, emotionally and intellectually, they are not mature enough to be able to assess for themselves and that could, therefore, endanger their future wellbeing and safety. For instance, we prohibit the purchase of tobacco and alcohol below the age of 18. We ban all use of drugs. The age of consent for sexual intercourse is still 16, and we don’t permit driving before 17.
Yet, in the name of data protection and the right to privacy, we are now proposing that children assume sole responsibility for any and all treatment they might have, apparently regardless of risk. They are too young to bear such a burden. The effect of any such policy can only play into the hands of sexual and gender libertarians, in one fell swoop removing the safeguards that up to now, however inadequately, have acted to keep young people safe.
To spell it out, giving children absolute responsibility to make permanent, life-changing, and potentially life-shortening decisions that, when older, they may bitterly regret is not the act of a caring and responsible society. Rather, it is evidence of an ideological struggle to undermine the influence and rights of parents, which can only further erode the influence and protection of family and facilitate conditions for absolute control by the State.
This is abuse. We call on the Government to acknowledge parents as bearing primary responsibility for their children’s welfare and to scrap this NHS guidance, which can only serve the ideological agenda of secular and sexual libertarianism – and will not protect children.
Please sign our petition to the Prime Minister, calling for parents to be given full access to their child’s online medical records until at least age 16.