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Legal Frameworks relating to working with CYP

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Legal Frameworks relating to working with CYP

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The General medical Council (GMC) offers guidance for working with CYP. This covers issues such as confidentiality, managing communication and involving the CYP in shared decisions. There are other guidelines which can be consulted for legal and professional issues.
You may wish to read through some of the information covered in this guidance and assess the crossover into your work as a practitioner.

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This piece of guidance will help you make decisions that are ethical, lawful and for the good of children and young people from birth to their 18 th birthday.

Acting in the best interests of the child or young person should be the guiding principle in your decision making. But identifying their best interests can be challenging. This guidance sets out ways to explore what's important to the young person and how to involve their family and others close to them in sensitive and complex decisions. It also gives advice on approaches to communicating effectively across the team and with the child and their family or carers to make sure you gather relevant information.

This guidance will help you decide what to do if parents want to access their child's medical records or where there's a disagreement about treatment options. And it gives details of when you can provide contraceptive, abortion and STI advice and treatment, without parental knowledge or consent, to young people under 16.

There's also a section dedicated to helping you assess a young person's capacity to consent, and what to do if a young person refuses treatment. The section on confidentiality stresses how important it is that children and young people are able to access care in confidence. But it also recognises there may be times when you have to share information, particularly if the welfare of a child or young person is at risk.

This guidance was updated on 8 April 2018. We amended paragraph 56 and removed paragraphs 57-63 which refer to child protection, as this is covered in our guidance Protecting children and young people: the responsibilities of all doctors. The remaining paragraphs have been re-numbered.

This guidance was updated on 25 May 2018 to reflect the requirements of the General Data Protection Regulation and Data Protection Act 2018.

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This piece of guidance will help you make decisions that are ethical, lawful and for the good of children and young people from birth to their 18 th birthday. Acting in the best interests of the child or young person should be the guiding principle in your decision making.

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The Legal Aspects of the Care and Treatment of Children and Young People with Mental Disorder: A Guide for Professionals 2009

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The Legal Aspects of the Care and Treatment of Children and Young People with Mental Disorder: A Guide for Professionals 2009

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Annex 1 (page 87 onwards) is particularly helpful in giving concise overview of each  key legislation and its guiding principles.

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Legislation is available in different versions:

Latest Available (revised): The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the 'Changes to Legislation' area.

Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

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An Act to amend the Mental Health Act 1983, the Domestic Violence, Crime and Victims Act 2004 and the Mental Capacity Act 2005 in relation to mentally disordered persons; to amend section 40 of the Mental Capacity Act 2005; and for connected purposes.

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An Act to consolidate the law relating to mentally disordered persons.

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The Mental Capacity Act (MCA) is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment. It applies to people aged 16 and over.

It covers decisions about day-to-day things like what to wear or what to buy for the weekly shop, or serious life-changing decisions like whether to move into a care home or have major surgery.

Examples of people who may lack capacity include those with:

But just because a person has one of these health conditions does not necessarily mean they lack the capacity to make a specific decision.

Someone can lack capacity to make some decisions (for example, to decide on complex financial issues) but still have the capacity to make other decisions (for example, to decide what items to buy at the local shop).

The MCA says:

assume a person has the capacity to make a decision themselves, unless it's proved otherwise

wherever possible, help people to make their own decisions

do not treat a person as lacking the capacity to make a decision just because they make an unwise decision

if you make a decision for someone who does not have capacity, it must be in their best interests

treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms

The MCA also allows people to express their preferences for care and treatment, and to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.

People should also be provided with an independent advocate, who will support them to make decisions in certain situations, such as serious treatment or where the individual might have significant restrictions placed on their freedom and rights in their best interests.

How is mental capacity assessed?

The MCA sets out a 2-stage test of capacity:

1) Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use?

2) Does the impairment mean the person is unable to make a specific decision when they need to? People can lack capacity to make some decisions, but have capacity to make others. Mental capacity can also fluctuate with time - someone may lack capacity at one point in time, but may be able to make the same decision at a later point in time.

Where appropriate, people should be allowed the time to make a decision themselves.

The MCA says a person is unable to make a decision if they cannot:

understand the information relevant to the decision

retain that information

use or weigh up that information as part of the process of making the decision

Helping people make their own decisions

Before deciding a person lacks capacity, it's important to take steps to enable them to try to make the decision themselves.

For example:

does the person have all the relevant information they need?

have they been given information on any alternatives?

could information be explained or presented in a way that's easier for them to understand (for example, by using simple language or visual aids)?

have different methods of communication been explored, such as non-verbal communication?

could anyone else help with communication, such as a family member, carer or advocate?

are there particular times of day when the person's understanding is better?

are there particular locations where the person may feel more at ease?

could the decision be delayed until they might be better able to make the decision?

Is the decision in their best interests?

If someone lacks the capacity to make a decision and the decision needs to be made for them, the MCA states the decision must be made in their best interests.

The MCA sets out a checklist to consider when deciding what's in a person's best interests.

It says you should:

encourage participation - do whatever's possible to permit or encourage the person to take part

identify all relevant circumstances - try to identify the things the individual lacking capacity would take into account if they were making the decision themselves

find out the person's views - including their past and present wishes and feelings, and any beliefs or values

avoid discrimination - do not make assumptions on the basis of age, appearance, condition or behaviour

assess whether the person might regain capacity - if they might, could the decision be postponed?

It's vital to consult with others for their views about the person's best interests.

In particular, try to consult:

anyone previously named by the individual

anyone engaged in caring for them

close relatives and friends

any attorney appointed under a Lasting Power of Attorney or Enduring Power of Attorney

any deputy appointed by the Court of Protection to make decisions for the person

Finding the least restrictive option

Before you make a decision or act on behalf of someone who lacks capacity, always question if you can do something else that would interfere less with their basic rights and freedoms.

This is called finding the "least restrictive alternative". It includes considering whether there's a need to act or make a decision at all.

Where there's more than one option, it's important to explore ways that would be less restrictive or allow the most freedom for a person who lacks capacity.

But the final decision must always allow the original purpose of the decision or act to be achieved.

Any decision or action must still be in the best interests of the person who lacks capacity.

So sometimes it may be necessary to choose an option that is not the least restrictive alternative if that option is in the person's best interests.

Deprivation of liberty

In certain cases, the restrictions placed upon a person who lacks capacity may amount to "deprivation of liberty". This must be judged on a case-by-case basis.

Where it appears a deprivation of liberty might happen, the provider of care (usually a hospital or a care home) has to apply to their local authority.

They'll then arrange an assessment of the person's care and treatment to decide if the deprivation of liberty is in the best interests of the individual concerned.

If it is, the local authority will grant a legal authorisation. If it is not, the care and treatment package must be changed - otherwise, an unlawful deprivation of liberty will occur. This system is known as the Deprivation of Liberty Safeguards.

If you suspect a deprivation of liberty may happen, talk to the care provider and then possibly the local authority.

Advance statements and decisions

An advance statement is a written statement that sets down a person's preferences, wishes, beliefs and values regarding their future care. It's not legally binding.

The aim is to provide a guide for anyone who might have to make decisions in a person's best interests if that person has lost the capacity to make decisions or communicate their decision.

An advance statement can cover any aspect of a person's future health or social care.

This could include:

how they want any religious or spiritual beliefs they hold to be reflected in their care

where they would like to be cared for - for example, at home or in a hospital, nursing home or hospice

how they like to do things - for example, if they prefer a shower instead of a bath, or like to sleep with the light on

concerns about practical issues - for example, who will look after their pet if they become ill

Find out more about making advance statements
An advance decision (sometimes known as an advance decision to refuse treatment, an ADRT, or a living will) is a legally binding decision that allows someone aged 18 or over, while still capable, to refuse specified medical treatment for a time in the future when they may lack capacity to consent to or refuse that treatment.

An advance decision must be valid and applicable to current circumstances. If it is, it has the same effect as a decision made by a person with capacity - healthcare professionals must follow the decision.

If the advance decision refuses life-sustaining treatment, it must:

be in writing, signed and witnessed

state clearly that the decision applies even if life is at risk

People who make an advance decision may wish to consider letting their family, friends and carers know about it.
Find out more about advance decisions
Lasting Powers of Attorney

You can grant a Lasting Power of Attorney (LPA) to another person (or people) to enable them to make decisions about your health and welfare, or decisions about your property and financial affairs.

Separate legal documents are made for each of these decisions, appointing one or more attorneys for each.

An Enduring Power of Attorney (EPA) under the previous law was restricted to making decisions over property and affairs, which includes financial affairs and accessing the person's information.

An EPA made before the Mental Capacity Act came into force on 1 October 2007 remains valid.

Powers of attorney can be made at any time when the person making it has the mental capacity to do so, provided they're 18 or over.

Both an EPA and LPA must be registered. An LPA can be registered at any time, but a personal welfare LPA will only be effective once the person has lost the capacity to make their own decisions.

When acting under an LPA, an attorney (the appointed person) must:

make sure the MCA's statutory principles are followed

check whether the person has the capacity to make that particular decision for themselves - if they do, a personal welfare LPA cannot be used and the person must make the decision

In addition, the Court of Protection will be able to appoint deputies who can also take decisions on health and welfare and financial matters if the person concerned lacks the capacity to make a decision.

They'll come into action when the court needs to delegate an ongoing series of decisions rather than one decision.

If the person concerned already has an LPA appointed, they will not normally need a deputy as well.

The Office of the Public Guardian registers LPAs and EPAs, and supervises court-appointed deputies.

It provides evidence to the Court of Protection and information and guidance to the public.

The Public Guardian works with a range of agencies, such as the financial sector, police and social services, to investigate concerns.

The Court of Protection

The Court of Protection oversees the operation of the Mental Capacity Act and deals with all issues, including financial and serious healthcare matters, concerning people who lack the mental capacity to make their own decisions.

The court also tries to resolve all disputes when the person's carer, healthcare worker or social worker disagree about what's in the person's best interests, or when the views of the attorneys conflict in relation to property and welfare.

The court hears important cases, such as whether the NHS should withdraw treatment, whether a serious medical treatment decision is in a person's best interests, or whether it's in a person's best interests to be deprived of their liberty.

Cases can be brought to the court by family members, as well as advocates and professionals involved in decisions.

Professionals' duties under the Mental Capacity Act

The Mental Capacity Act applies to all professions - doctors, nurses, social workers, occupational therapists, healthcare assistants, and support staff.

These staff and their employers have a duty to ensure they know how to use it.

Most trusts and local authorities will have a Mental Capacity Act lead who provides specialist advice on how the Act works.

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Mental Capacity Act - Social care and support guide

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What is the Mental Capacity Act and what does it mean for you?

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United Nations Convention on the Rights of the Child (UNCRC)

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United Nations Convention on the Rights of the Child (UNCRC)

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Gillick competency and Fraser Guidelines Factsheet.

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Gillick competency and Fraser Guidelines Factsheet.

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The issue of consent will feature heavily in your role as a practitioner and is a key competency. A case related to consent and CYP competence which has influenced the Law has resulted in 'Gillick competency' and 'Fraser Guidelines'.

You may wish to have a read through the following fact sheet and consider the implications of this (particularly Gillick competency) with your role and the young people you work with.

You may also wish to consider any experiences from previous roles related to competence and consent (adhering to confidentiality, of course!). Think about these experiences and how you overcame these in your role and services.

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Introduction

Gillick competency and Fraser guidelines help people who work with children to balance the need to listen to children's wishes with the responsibility to keep them safe.

When practitioners are trying to decide whether a child is mature enough to make decisions about things that affect them, they often talk about whether the child is 'Gillick competent' or whether they meet the 'Fraser guidelines'.

Although the two terms are frequently used together and originate from the same legal case, there are distinct differences between them.

Both Gillick competency and Fraser guidelines refer to a legal case from the 1980s which looked at whether doctors should be able to give contraceptive advice or treatment to young people under 16-years-old without parental consent.

Applying Gillick competence and Fraser guidelines

The Fraser guidelines still apply to advice and treatment relating to contraception and sexual health. But Gillick competency is often used in a wider context to help assess whether a child has the maturity to make their own decisions and to understand the implications of those decisions.

You should always encourage a child to tell their parents or carers about the decisions they are making. If they don't want to do this, you should explore why and, if appropriate, discuss ways you could help them inform their parents or carers. For example, you could talk to the young person's parents or carers on their behalf.

If the young person still wants to go ahead without their parents' or carers' knowledge or consent, you should consider the Gillick and Fraser guidelines. The following information looks at how this can be applied in practice.

Gillick competence

Gillick competence

Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. For example, if a child or young person:

would like to have therapeutic support but doesn't want their parents or carers to know about it

is seeking confidential support for substance misuse

has strong wishes about their future living arrangements which may conflict with their parents' or carers' views.

Medical professionals need to consider Gillick competency if a young person under the age of 16 wishes to receive treatment without their parents' or carers' consent or, in some cases, knowledge.

If the young person has informed their parents of the treatment they wish to receive but their parents do not agree with their decision, treatment can still proceed if the child has been assessed as Gillick competent.

There is specific guidance for medical professionals on using Gillick competence - see case history and legislation.

Assessing Gillick competence

There is no set of defined questions to assess Gillick competency. Professionals need to consider several things when assessing a child's capacity to consent, including:

the child's age, maturity and mental capacity

their understanding of the issue and what it involves - including advantages, disadvantages and potential long-term impact

their understanding of the risks, implications and consequences that may arise from their decision

how well they understand any advice or information they have been given

their understanding of any alternative options, if available

their ability to explain a rationale around their reasoning and decision making.

Remember that consent is not valid if a young person is being pressured or influenced by someone else.

Children's capacity to consent may be affected by different factors, for example stress, mental health conditions and the complexities of the decision they are making. The same child may be considered Gillick competent to make one decision but not competent to make a different decision.

If you don't think a child is Gillick competent or there are inconsistencies in their understanding, you should seek consent from their parents or carers before proceeding.

In complex medical cases, such as those involving disagreements about treatment, you may wish to seek the opinion of a colleague about a child's capacity to consent (Care Quality Commission, 2019).

Young people also have the right to seek a second opinion from another medical professional (General Medical Council, 2020).

Refusal of medical treatment

Gillick competency can be used when young people wish to refuse medical treatment.

However, if a young person refuses treatment which may lead to their death or severe permanent harm, their decision can be overruled. More information about this is available in the guidance for medical professionals in each UK nation - see case history and legislation.

Child protection concerns

The child's safety and wellbeing is paramount.

When you are assessing Gillick competency if you have any concerns about the safety of the young person you should check whether previous child protection concerns have been raised, and explore any factors that could put them at risk of abuse.

You must always share child protection concerns with the relevant agencies, even if this goes against a child's wishes.
> Find out more about recognising and responding to abuse

Fraser guidelines

Fraser guidelines

The Fraser guidelines apply specifically to advice and treatment about contraception and sexual health. They may be used by a range of healthcare professionals working with under 16-year-olds, including doctors and nurse practitioners.

Following a legal ruling in 2006, Fraser guidelines can also be applied to advice and treatment for sexually transmitted infections and the termination of pregnancy (Axton v The Secretary of State for Health, 2006).

Using the Fraser guidelines

Practitioners using the Fraser guidelines should be satisfied of the following:

the young person cannot be persuaded to inform their parents or carers that they are seeking this advice or treatment (or to allow the practitioner to inform their parents or carers).

the young person understands the advice being given.

the young person's physical or mental health or both are likely to suffer unless they receive the advice or treatment.

it is in the young person's best interests to receive the advice, treatment or both without their parents' or carers' consent.

the young person is very likely to continue having sex with or without contraceptive treatment.

(Gillick v West Norfolk, 1985)

Child protection concerns

When using Fraser guidelines for issues relating to sexual health, you should always consider any potential child protection concerns:

Underage sexual activity is a possible indicator of child sexual exploitation and children who have been groomed may not realise they are being abused.

Sexual activity with a child under 13 should always result in a child protection referral.

If a young person presents repeatedly about sexually transmitted infections or the termination of pregnancy this may be an indicator of child sexual abuse or exploitation.

You should always consider any previous concerns that may have been raised about the young person and explore whether there are any factors that may present a risk to their safety and wellbeing.

You must always share child protection concerns with the relevant agencies, even if a child or young person asks you not to.

> Find out more about recognising and responding to abuse

Case history, legislation and guidance

Gillick v West Norfolk and Wisbech Area Health Authority 1986

In 1982 Victoria Gillick took her local health authority (West Norfolk and Wisbech Area Health Authority) and the Department of Health and Social Security to court in an attempt to stop doctors from giving contraceptive advice or treatment to under 16-year-olds without parental consent.

The case went to the High Court in 1984 where Mr Justice Woolf dismissed Mrs Gillick's claims. The Court of Appeal reversed this decision, but in 1985 it went to the House of Lords and the Law Lords (Lord Scarman, Lord Fraser and Lord Bridge) ruled in favour of the original judgment delivered by Mr Justice Woolf:

"...whether or not a child is capable of giving the necessary consent will depend on the child's maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent" (Gillick v West Norfolk, 1984).

What are the Fraser guidelines?

The Fraser guidelines refer to the guidelines set out by Lord Fraser in his judgment of the Gillick case in the House of Lords (Gillick v West Norfolk, 1985), which apply specifically to contraceptive advice.

Lord Fraser stated that a doctor should always encourage a girl aged under 16 to inform her parents or carers that she is seeking contraceptive advice (or allow the doctor to inform the parents or carers on her behalf). But if she cannot be persuaded to do so they can proceed to give contraceptive advice and treatment as long as certain conditions are met. This includes making sure it's in the girl's best interests for advice to be given and that she understands the advice.
> Find out more about using the Fraser guidelines
What is Gillick competence?

Lord Scarman's comments in his judgment of the Gillick case in the House of Lords (Gillick v West Norfolk, 1985) are often referred to as the test of "Gillick competency". He said:

"...it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved."

He also commented more generally on parents' versus children's rights:

"parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision."
> Find out more about assessing Gillick competency
Legislation and guidance

Gillick v West Norfolk and Wisbech Area Health Authority went to the House of Lords and is often used as a legal precedent across the UK.

In Scotland, the Age of Legal Capacity (Scotland) Act 1991 sets out when children have the legal capacity to make decisions. Section 2 sets out when a child under the age of 16 can consent to medical treatment or procedures.

Medical guidance

In England, the Department of Health and Social Care provides guidance for medical professionals on the legal framework they need to consider when obtaining valid consent to examination, treatment or care (Department of Health and Social Care, 2009).

In Northern Ireland the Department of Health provides consent guides for healthcare professionals (Department of Health, 2003).

In Scotland the NHS has provided a good practice guide on consent for health professionals (PDF) (Scottish Executive Health Department, 2006).

References and resources

References and resources

Axton v The Secretary of State for Health (The Family Planning Association: intervening) (2006) EWHC 37. As cited in Family Law Week.

Care Quality Commission (2019). Brief guide: capacity and competence to consent in under 18s (PDF). Care Quality Commission.

Department of Health (2003). Consent guides for healthcare professionals. [Accessed 02/02/2020].

Department of Health and Social Care (2009) Reference guide to consent for examination or treatment (second edition). London: Department of Health and Social Care.

Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1984] Q.B. 581. As cited in Children's Legal Centre (1985) Landmark decision for children's rights. Childright, 22: 11-18.

Gillick v West Norfolk & Wisbech Area Health Authority, UKHL 7 (17 October 1985) Available via (BAILII) in The law reports (appeal cases) [1986] AC 112.

Scottish Executive Health Department (2006). A good practice guide on consent for health professionals in NHS Scotland (PDF). Edinburgh: Scottish Executive

Childline

If a child or young person needs confidential help and advice direct them to Childline. Calls to 0800 1111 are free and children can also contact Childline online or read about children's rights on the Childline website.

You can also download or order Childline posters and wallet cards.

Elearning

Our online and face-to-face training courses can help develop your understanding of how to protect children from abuse and safely recruit staff and volunteers to work with children:

Further reading

For further reading about Gillick competency and Fraser guidelines, search the NSPCC Library catalogue using the keywords "Gillick competency" and "Fraser guidelines".
> Find out more about the Library and Information Service

Introduction

Gillick competency and Fraser guidelines help people who work with children to balance the need to listen to children's wishes with the responsibility to keep them safe.

When practitioners are trying to decide whether a child is mature enough to make decisions about things that affect them, they often talk about whether the child is 'Gillick competent' or whether they meet the 'Fraser guidelines'.

Although the two terms are frequently used together and originate from the same legal case, there are distinct differences between them.

Both Gillick competency and Fraser guidelines refer to a legal case from the 1980s which looked at whether doctors should be able to give contraceptive advice or treatment to young people under 16-years-old without parental consent.

Applying Gillick competence and Fraser guidelines

The Fraser guidelines still apply to advice and treatment relating to contraception and sexual health. But Gillick competency is often used in a wider context to help assess whether a child has the maturity to make their own decisions and to understand the implications of those decisions.

You should always encourage a child to tell their parents or carers about the decisions they are making. If they don't want to do this, you should explore why and, if appropriate, discuss ways you could help them inform their parents or carers. For example, you could talk to the young person's parents or carers on their behalf.

If the young person still wants to go ahead without their parents' or carers' knowledge or consent, you should consider the Gillick and Fraser guidelines. The following information looks at how this can be applied in practice.

Gillick competence

Gillick competence

Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. For example, if a child or young person:

would like to have therapeutic support but doesn't want their parents or carers to know about it

is seeking confidential support for substance misuse

has strong wishes about their future living arrangements which may conflict with their parents' or carers' views.

Medical professionals need to consider Gillick competency if a young person under the age of 16 wishes to receive treatment without their parents' or carers' consent or, in some cases, knowledge.

If the young person has informed their parents of the treatment they wish to receive but their parents do not agree with their decision, treatment can still proceed if the child has been assessed as Gillick competent.

There is specific guidance for medical professionals on using Gillick competence - see case history and legislation.

Assessing Gillick competence

There is no set of defined questions to assess Gillick competency. Professionals need to consider several things when assessing a child's capacity to consent, including:

the child's age, maturity and mental capacity

their understanding of the issue and what it involves - including advantages, disadvantages and potential long-term impact

their understanding of the risks, implications and consequences that may arise from their decision

how well they understand any advice or information they have been given

their understanding of any alternative options, if available

their ability to explain a rationale around their reasoning and decision making.

Remember that consent is not valid if a young person is being pressured or influenced by someone else.

Children's capacity to consent may be affected by different factors, for example stress, mental health conditions and the complexities of the decision they are making. The same child may be considered Gillick competent to make one decision but not competent to make a different decision.

If you don't think a child is Gillick competent or there are inconsistencies in their understanding, you should seek consent from their parents or carers before proceeding.

In complex medical cases, such as those involving disagreements about treatment, you may wish to seek the opinion of a colleague about a child's capacity to consent (Care Quality Commission, 2019).

Young people also have the right to seek a second opinion from another medical professional (General Medical Council, 2020).

Refusal of medical treatment

Gillick competency can be used when young people wish to refuse medical treatment.

However, if a young person refuses treatment which may lead to their death or severe permanent harm, their decision can be overruled. More information about this is available in the guidance for medical professionals in each UK nation - see case history and legislation.

Child protection concerns

The child's safety and wellbeing is paramount.

When you are assessing Gillick competency if you have any concerns about the safety of the young person you should check whether previous child protection concerns have been raised, and explore any factors that could put them at risk of abuse.

You must always share child protection concerns with the relevant agencies, even if this goes against a child's wishes.
> Find out more about recognising and responding to abuse

Fraser guidelines

Fraser guidelines

The Fraser guidelines apply specifically to advice and treatment about contraception and sexual health. They may be used by a range of healthcare professionals working with under 16-year-olds, including doctors and nurse practitioners.

Following a legal ruling in 2006, Fraser guidelines can also be applied to advice and treatment for sexually transmitted infections and the termination of pregnancy (Axton v The Secretary of State for Health, 2006).

Using the Fraser guidelines

Practitioners using the Fraser guidelines should be satisfied of the following:

the young person cannot be persuaded to inform their parents or carers that they are seeking this advice or treatment (or to allow the practitioner to inform their parents or carers).

the young person understands the advice being given.

the young person's physical or mental health or both are likely to suffer unless they receive the advice or treatment.

it is in the young person's best interests to receive the advice, treatment or both without their parents' or carers' consent.

the young person is very likely to continue having sex with or without contraceptive treatment.

(Gillick v West Norfolk, 1985)

Child protection concerns

When using Fraser guidelines for issues relating to sexual health, you should always consider any potential child protection concerns:

Underage sexual activity is a possible indicator of child sexual exploitation and children who have been groomed may not realise they are being abused.

Sexual activity with a child under 13 should always result in a child protection referral.

If a young person presents repeatedly about sexually transmitted infections or the termination of pregnancy this may be an indicator of child sexual abuse or exploitation.

You should always consider any previous concerns that may have been raised about the young person and explore whether there are any factors that may present a risk to their safety and wellbeing.

You must always share child protection concerns with the relevant agencies, even if a child or young person asks you not to.

> Find out more about recognising and responding to abuse

Case history, legislation and guidance

Gillick v West Norfolk and Wisbech Area Health Authority 1986

In 1982 Victoria Gillick took her local health authority (West Norfolk and Wisbech Area Health Authority) and the Department of Health and Social Security to court in an attempt to stop doctors from giving contraceptive advice or treatment to under 16-year-olds without parental consent.

The case went to the High Court in 1984 where Mr Justice Woolf dismissed Mrs Gillick's claims. The Court of Appeal reversed this decision, but in 1985 it went to the House of Lords and the Law Lords (Lord Scarman, Lord Fraser and Lord Bridge) ruled in favour of the original judgment delivered by Mr Justice Woolf:

"...whether or not a child is capable of giving the necessary consent will depend on the child's maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent" (Gillick v West Norfolk, 1984).

What are the Fraser guidelines?

The Fraser guidelines refer to the guidelines set out by Lord Fraser in his judgment of the Gillick case in the House of Lords (Gillick v West Norfolk, 1985), which apply specifically to contraceptive advice.

Lord Fraser stated that a doctor should always encourage a girl aged under 16 to inform her parents or carers that she is seeking contraceptive advice (or allow the doctor to inform the parents or carers on her behalf). But if she cannot be persuaded to do so they can proceed to give contraceptive advice and treatment as long as certain conditions are met. This includes making sure it's in the girl's best interests for advice to be given and that she understands the advice.
> Find out more about using the Fraser guidelines
What is Gillick competence?

Lord Scarman's comments in his judgment of the Gillick case in the House of Lords (Gillick v West Norfolk, 1985) are often referred to as the test of "Gillick competency". He said:

"...it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved."

He also commented more generally on parents' versus children's rights:

"parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision."
> Find out more about assessing Gillick competency
Legislation and guidance

Gillick v West Norfolk and Wisbech Area Health Authority went to the House of Lords and is often used as a legal precedent across the UK.

In Scotland, the Age of Legal Capacity (Scotland) Act 1991 sets out when children have the legal capacity to make decisions. Section 2 sets out when a child under the age of 16 can consent to medical treatment or procedures.

Medical guidance

In England, the Department of Health and Social Care provides guidance for medical professionals on the legal framework they need to consider when obtaining valid consent to examination, treatment or care (Department of Health and Social Care, 2009).

In Northern Ireland the Department of Health provides consent guides for healthcare professionals (Department of Health, 2003).

In Scotland the NHS has provided a good practice guide on consent for health professionals (PDF) (Scottish Executive Health Department, 2006).

References and resources

References and resources

Axton v The Secretary of State for Health (The Family Planning Association: intervening) (2006) EWHC 37. As cited in Family Law Week.

Care Quality Commission (2019). Brief guide: capacity and competence to consent in under 18s (PDF). Care Quality Commission.

Department of Health (2003). Consent guides for healthcare professionals. [Accessed 02/02/2020].

Department of Health and Social Care (2009) Reference guide to consent for examination or treatment (second edition). London: Department of Health and Social Care.

Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1984] Q.B. 581. As cited in Children's Legal Centre (1985) Landmark decision for children's rights. Childright, 22: 11-18.

Gillick v West Norfolk & Wisbech Area Health Authority, UKHL 7 (17 October 1985) Available via (BAILII) in The law reports (appeal cases) [1986] AC 112.

Scottish Executive Health Department (2006). A good practice guide on consent for health professionals in NHS Scotland (PDF). Edinburgh: Scottish Executive

Childline

If a child or young person needs confidential help and advice direct them to Childline. Calls to 0800 1111 are free and children can also contact Childline online or read about children's rights on the Childline website.

You can also download or order Childline posters and wallet cards.

Elearning

Our online and face-to-face training courses can help develop your understanding of how to protect children from abuse and safely recruit staff and volunteers to work with children:

Further reading

For further reading about Gillick competency and Fraser guidelines, search the NSPCC Library catalogue using the keywords "Gillick competency" and "Fraser guidelines".
> Find out more about the Library and Information Service

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Gillick competence and Fraser guidelines | NSPCC Learning

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Gillick competency is often used to assess whether a child is mature enough to consent to treatment. Fraser guidelines are used for issues relating to sexual health.

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The Act has three main effects:

1. You can seek justice in a British court

It incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law. This means that if your human rights have been breached, you can take your case to a British court rather than having to seek justice from the European Court of Human Rights in Strasbourg, France.

2. Public bodies must respect your rights

It requires all public bodies (like courts, police, local authorities, hospitals and publicly funded schools) and other bodies carrying out public functions to respect and protect your human rights.

3. New laws are compatible with Convention rights

In practice it means that Parliament will nearly always make sure that new laws are compatible with the rights set out in the European Convention on Human Rights (although ultimately Parliament is sovereign and can pass laws which are incompatible). The courts will also, where possible, interpret laws in a way which is compatible with Convention rights.

Find out more about human rights and how they play a part in our everyday lives: what are human rights?

Download a full copy of the Human Rights Act.

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The Human Rights Act allows you to defend your rights in UK courts and ensures that public organisations respect and protect your human rights.

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An Act to reform the law relating to children; to provide for local authority services for children in need and others; to amend the law with respect to children’s homes, community homes, voluntary homes and voluntary organisations; to make provision with respect to fostering, child minding and day…

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This is a free MindEd e-learning session.  It is aimed at a universal audience and introduces the key concepts in legal and ethical discussion on good practice in mental health work with children and young people including:

Ethical frameworks

Capacity

Consent

Confidentiality

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Please see the following boxes to the right and below for some helpful resources and further reading

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In your breakout groups please read through the scenarios in the next padlet and reflect on the main issues that arise and how you might overcome them as a practitioner within your service/setting.

Please follow the link to the next Padlet: EMHP07: Practice Based Learning Scenarios (padlet.com)

When we come back together it would be great to share you thoughts in a  wider group discussion

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Consider the following questions, before providing your thoughts in the comments below:

•Why is collaboration important?

•Which agencies do you think you will need to/will be likely to collaborate with?

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Please leave your answers in the comments below:

•Consider what values you hold as important? How do they fit with being a low-intensity EMHP?

•Reflect on the values that are predominant in your role? How congruent are they with your values?

•What would you do if you felt that working in your client’s best interests conflicted with your agency’s policies? How would you resolve this? What are your responsibilities in this situation?

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Please leave your answers in the comments below:

•What is your understanding of ethical practice?

•What does it mean to be ‘professional’?

•If you were a service user (CYP/caregiver) what standards would you expect in relation to ethical and professional practice?

•As a professional, what would you expect? What standards would you expect of yourself, your colleagues, and other professionals/agencies in a wider context?

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Useful Documents: BABCP Standards of Conduct, Performance and Ethics

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Useful Documents: BABCP Standards of Conduct, Performance and Ethics

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Please comment your name under this box to register your attendance.

Please note: This is the only way attendance is recorded during ONLINE teaching days so please do add your name to the box below to avoid being marked as absent.

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Hello all! Welcome to today's teaching on legal, ethical and professional issues that may arise as part of your role as an EMHP.

If you have any questions during the morning session please contact me at a.gilbert3@exeter.ac.uk.

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Zoom is the leader in modern enterprise video communications, with an easy, reliable cloud platform for video and audio conferencing, chat, and webinars across mobile, desktop, and room systems. Zoom Rooms is the original software-based conference room solution used around the world in board, confer…