Confidentiality guidance is lawful, confirms judge

Sue Axon, of Baguley, Manchester, in January lost her court battle for a parent’s ‘right to know’ if girls are being advised or treated on abortion, contraception or sexual health.

Ms Axon, 51, a divorced mother-of-five whose 16-year-old daughter is expecting a baby in March, wanted the law changed to prevent girls under 16 getting confidential advice. Mrs Axon said she regretted having an abortion 20 years ago that caused her ‘guilt, shame and depression’. Mrs Axon also wanted parents to be told of advice or treatment in respect of sexually transmitted infections. But on 23 January, the judge, Mr Justice Silber rejected her calls for a review of the official guidance.

Ms Axon was challenging the lawfulness of the 2004 Department of Health (DH) document, entitled Best Practice Guidance for Doctors and Other Health Professionals on the Provision of Advice and Treatment to Young People under Sixteen on Contraception, Sexual and Reproductive Health.  In his ruling, Mr Justice Silber argued that the application raises a tension between two important principles. The first is that ‘a competent young person under sixteen years of age (who is able to understand all aspects of any advice, including its consequences) is an autonomous person, who first should be allowed to make decisions about his or her own health and second is entitled to confidentiality about such decisions even vis-à-vis his or her parents’. The second is that ‘a parent of a young person has a responsibility for that young person’s health and moral welfare with the consequence that he or she should be informed if a medical professional is considering providing advice and treatment on sexual matters to that young person so that the parent could then advise and assist the young person’.

The judge added that there is also ‘a significant public policy dimension’, because ‘there is evidence that without the guarantee of confidentiality, some of these young people might not seek advice or treatment from medical professionals on sexual matters with potentially disturbing consequences’. 

In rejecting Ms Axon’s claim, Mr Justice Silber reaffirmed the House of Lords 1986 ruling in Gillick v West Norfolk and Wisbech Health Authority, which ‘provides much guidance on the circumstances in which medical advice and treatment can be given without parental knowledge or consent on contraception, on sexually transmissible diseases and on abortion’. He concluded that ‘the medical professional is entitled to provide medical advice and treatment on sexual matters without the parent’s knowledge or consent’, provided he or she is satisfied:

(1) that the young person although under 16 years of age understands all aspects of the advice;

2) that the medical professional cannot persuade the young person to inform his or her parents or to allow the medical professional to inform the parents that their child is seeking advice and/or treatment on sexual matters;

(3) that (in any case in which the issue is whether the medical professional should advise on or treat in respect of contraception and sexually transmissible illnesses) the young person is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment or treatment for a sexually transmissible illness;

(4) that unless the young person receives advice and treatment on the relevant sexual matters, his or her physical or mental health or both are likely to suffer; and

(5) that the best interests of the young person require him or her to receive advice and treatment on sexual matters without parental consent or notification.

The judge insisted that ‘There is nothing in this judgment which is intended to encourage young people to seek or to obtain advice or treatment on any sexual matters without first informing their parents and without discussing matters with them’.

Ms Axon said she was ‘disappointed’ by the judgement, but that she had no regrets about bringing the proceedings and would not be seeking leave to appeal. ‘I hope these proceedings will help parents and children to recognise the trauma of abortion and to talk openly about sexual matters,’ she said. Anti-abortion groups also criticised the ruling.

Others welcomed Mr Justice Silber’s findings. Public Health Minister Caroline Flint said that is the ruling confirmed the Department of Health’s guidelines were in line with the law. She added: ‘the guidance also stresses that confidentiality is not absolute. Where a health professional believes that there is a risk to the health, safety or welfare of a young person which is so serious as to outweigh the young person’s right to privacy, the case should be referred through local child protection procedures for appropriate action to be taken.’ She said further guidance on how to handle cases of potential abuse and other risks of sexual activity causing ‘significant harm’ would be published shortly.

Dr Beverly Malone, General Secretary of the Royal College of Nursing, said the judgement would give confidence to nurses and other healthcare professionals in providing confidential sexual health advice to young girls. Ann Furedi, Chief Executive of bpas, said: ‘We welcome the results from the court reiterating that young people have the right to confidentiality when seeking abortion or contraception. In our experience, young girls almost always involve their parents or another close adult when they have an unwanted pregnancy. Doctors and counsellors already work hard to persuade young people to involve their parents – because obviously it’s better for young people to have parental support. They don’t need more laws and regulations to compel them to do this, and sometimes there are circumstances where involving parents isn’t the best thing.’

Mother loses ‘right to know’ case BBC, 23 January 2006; Approved Judgment, 23 January 2006