Age of consent

A 14-year-old girl named Mary has made an emergency appointment at the GP surgery for a “bad cough”. She turns up for the consultation with her 17-year-old sister but does not appear unwell when her name is called in the waiting room.

Inside the consulting room you ask her what seems to be the problem and Mary bursts into tears. “She’s pregnant,” her sister blurts out. In a few minutes Mary calms down enough to explain that the father is a 15-year-old boy at her school with whom she had consensual sex. He does not know she is pregnant and Mary has no plans to tell him or her parents. Her sister adds: “Our Dad would go mental if he found out.”

Mary is adamant she wants you to arrange for an abortion. The family has been with the practice for many years and you suggest that she makes an appointment to discuss the matter with her regular GP in the practice but Mary insists that you deal with the issue. “I just couldn’t face Dr Jones,” she says.

SUCH scenarios occur more often than you might imagine as our advice call records at MDDUS will attest. Making decisions on issues of consent in children and adolescents can be complicated – especially when the patient is at an age where their maturity and competence to make decisions about serious medical interventions could possibly be in question.

Old enough to choose

Young people are presumed to be competent to make decisions regarding their own medical care at the age of 16 years in the UK. In children under 16 both case and statute law in England and Wales support the broad principle that a child can give consent if able to demonstrate sufficient understanding and intelligence to comprehend what is proposed and the attendant risks. In Scotland, statute law makes similar provision for children under age 16. It is for the doctor to use clinical judgment to decide whether the child possesses a sufficient level of understanding and intelligence.

Younger and ‘non-competent’ children under age 16 normally require consent from any one person with parental responsibility (e.g. natural mother or father, court-appointed guardian or a carer) prior to any intervention. The courts can also grant consent. In an emergency situation, treatment can proceed without consent provided this is deemed in the best interest of the child.

The GMC offers very specific advice on issues of consent in children in its document 0-18 years: guidance for all doctors, which is available on the GMC website. Among ‘first principles’ expressed in the guidance is the recognition that children and young people are “individuals with rights that should be respected”. It also states: “When treating children and young people, doctors must also consider parents and others close to them; but their patient must be the doctor’s first concern.”

In dealing with a patient in Mary’s situation the advice from the GMC and MDDUS is to encourage the young person to involve her parents or others in the decision-making process unless there is some reason to suspect this might not be in the patient’s best interests. In judging the competence to consent in a child under 16 the GMC states:

“You must decide whether a young person is able to understand the nature, purpose and possible consequences of investigations or treatments you propose, as well as the consequences of not having treatment. Only if they are able to understand, retain, use and weigh this information, and communicate their decision to others can they consent to that investigation or treatment.”

In the guidance the GMC also makes specific reference to the provision of contraceptive, abortion and STI advice and treatment to under-16s without parental knowledge or consent. This is permitted provided that the young patient:

• understands all aspects of the advice and its Implications cannot be persuaded to tell their parents or to allow you to tell them
• in relation to contraception and STIs, is very likely to have sex with or without such treatment
• is likely to suffer physical or mental health problems unless they receive such advice or treatment.

Consultations involving sexual activity in minors should always raise certain questions in your mind even if a patient is judged to be competent to consent. The GMC advises that if a “child or young person is involved in abusive or seriously harmful sexual activity, you must protect them by sharing relevant information with appropriate people or agencies, such as the police or social services, quickly and professionally”. You should usually share information about sexual activity where a patient is under the age of 13. Some patients may refuse to name the sexual partner and that in itself may be a cause for concern.

The MDDUS is frequently asked about the fact that sexual activity under the age of 16 is illegal. We advise that the full circumstances of each individual case need to be considered. In general there is no automatic requirement to involve other agencies and due regard must be paid to the young person’s capacity, the ages of those involved and the circumstances of the relationship. In any complex case you should seek advice from a suitable colleague, such as an adviser at MDDUS.

What’s best for Mary?

In Mary’s case we would advise the GP to carefully check through the relevant clinical aspects, for example the duration of the pregnancy, how the pregnancy was confirmed and the patient’s general health. Clearly, Mary would also need to be advised about the medical aspects of her request for a termination of pregnancy.

She is obviously very young at 14 and whilst she has a supportive older sister, it would be helpful if Mary could discuss matters with her mother. Her sister has indicated that their father would be very angry but it should be explained to the patient that there are advantages of informing at least one of her parents. In cases where the family is known to a practice it can be helpful to have prior knowledge of how parents might react in these circumstances. Mary has also indicated that she “could not face Dr Jones”, but she should be made aware that it is essential that relevant information about the consultation is shared and available in her records.

It is essential that during the consultation the doctor forms a clear view about the patient’s capacity. If there is any doubt that she is not sufficiently mature and lacks capacity, this will have to be explored with the patient and further steps taken to liaise with a parent. The involvement of the 17-year-old sister is helpful, but she would not be a valid proxy in circumstances where the 14-year-old lacked the capacity to make decisions on her own behalf. If the 14-year-old is deemed capable of making her own decisions the sister can certainly provide valuable support.

In circumstances where the patient is deemed competent and is insistent on referral for termination of pregnancy, having been fully advised of the likely procedures and their risks, an appropriate referral should be made. In view of the patient’s young age it would be helpful to speak to one of the local gynaecologists/family planning doctors directly to be aware of their own procedures and protocols and the patient advised accordingly.

A range of practical aspects will also need to be considered such as transportation to and from hospital, time away from the family, etc. Quite often young patients do not fully appreciate that it can be difficult to attend other facilities without the knowledge of at least one parent.

Seek further advice

Situations such as these are complex and unique, and each case has to be assessed very carefully on its individual features. It is important to remember that your decisions may be called into question by subsequent events and complaints and you must be prepared to justify your actions. In all cases where there is any difficulty we advise members to discuss a case with colleagues and to seek our input for detailed advice.

Dr Gail Gilmartin, medico-legal adviser, with Jim Killgore, editor MDDUS Summons