Dr James Lucas, Medico-legal Consultant at Medical Protection, explains various key pieces of legislation and national guidance that relate to the welfare of children and youths
Dilemma 1
The parents of my patient, a 12-month-old girl, are in the process of divorce. The girl’s father, Mr A, has written to the practice explaining that his views about childhood immunisation have changed. He has also indicated that the practice does not have his consent to administer vaccines to his daughter in the future.
As the patient’s GP, I have contacted her mother, Mrs A, who has voiced her strong support for childhood immunisation. Mrs A has made clear that she plans to take her daughter for appropriate vaccinations, regardless of her estranged husband’s objections, in the best interests of her daughter and in accordance with her rights as a mother.
How should I manage this delicate situation?
As both parents are the legal guardians of the child, they both have the right to be involved in decisions about their daughter’s health. Where the patient is under 16 years old, a parent or legal guardian will usually be responsible for making decisions regarding consent for medical treatment on the patient’s behalf.
HSE National Consent Policy states that the consent of one parent or legal guardian will normally provide sufficient authority in respect of any health or social care intervention in relation to a child. However, there are exceptions to this general rule, including those circumstances where a parent/legal guardian refuses medical treatment on behalf of a child.
The National Consent Policy also has a guideline about the provision of healthcare to a child where both parents disagree between themselves.
In such a case, the doctor or practice should advise the parents that they have a responsibility to discuss the matter and reach an agreement between themselves as quickly as possible, with the assistance of the HSE advocacy services and a third-party mediator if required.
If agreement is not reached, the service should generally not be provided unless it is deemed by the healthcare professional to be necessary to safeguard the child’s best interests. In such circumstances, legal advice should be sought as to whether an application to court is required.
As a preliminary step, the GP may wish to consider inviting the child’s father to meet the clinical team at the practice, so that he can share his concerns about childhood immunisation and ensure his views are based on accurate and up-to-date information about the benefits/risks of vaccination.
Dilemma 2
Mr L, a widower, has telephoned the surgery to make an appointment for his 15-year-old daughter. Mr L explains that he needs a GP to provide a prescription for contraception for his daughter, Ms L, as she has a 16-year-old boyfriend.
At the consultation with Miss L, she tells me that she has been in a relationship with her boyfriend for six months and they have been having sexual intercourse for about one month. Her boyfriend goes to her school and they are very happy together.
I am concerned about the potential consequences of providing contraceptive treatment to his daughter, who is under 16 years of age. What should I do?
How to approach the issue of consent.
According to the Non-Fatal Offences Against the Person Act 1997 Section 23(1), a child becomes an adult for the purposes of consenting to medical, dental or surgical treatment at the age of 16 years. Under the Act, a child under 16 cannot consent to medical treatment.
However, the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners 2016 says that when the patient is under 16, the parent(s) or guardian(s) will usually be asked to give their consent to medical treatment on the patient’s behalf.
In this instance, Ms L allows the doctor to discuss the prescription with her father and he consents to the treatment.
The Medical Council’s guidance outlines the approach to take in cases where the young person cannot be persuaded to involve a parent or guardian.
Reporting requirements
As Ms L is just 15 years old, does her GP have a duty to report knowledge of the sexual relationship to the gardaí or TUSLA? As outlined in the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 (the ‘2012 Act’), there are mandatory reporting requirements to the gardaí with respect to knowledge of crimes committed against children. A person is guilty of an offence if they know or believe that certain crimes have been committed against a child and have information that would be helpful to the gardaí, but fail without reasonable excuse to disclose that information, as soon as is practical, to the gardaí. But there are three defences available to a GP:
Section 2(1) — A GP would only be guilty if they failed “without reasonable excuse” to disclose such information.
Section 4(1)(a) — If the child makes known that they do not wish for the matter to be disclosed to the gardaí. However, there is a rebuttable presumption that a child who is under 14 years old does not have the capacity to form their own view. In this case, Ms L can form her own view regarding disclosure.
Section 4(8) — If it is the view of a GP who is providing or has provided services to the child in question that the information should not be disclosed. However, this can only be relied on if the GP is able to prove that the decision not to disclose was reached in a manner that “continues to apply the standards of practice and care” that “can be reasonably expected” of a person working in such a position.
There are further requirements outlined in the Children First Act 2015 (the ‘2015 Act’) and Children First: National Guidance for the Protection and Welfare of Children (2017).
In section 14(1) and (2) of the 2015 Act, it states that “a mandated person”, such as a GP, is required to make a report to TUSLA where they know, believe or have reasonable grounds to suspect, on the basis of information that they have received, acquired or become aware of in the course of their employment that a child has been, is being or is at risk of being harmed. This also applies where the child believes that they have been, are being, or are at risk of being harmed, and disclose this belief to the GP.
Section 14(3) of this Act states that a mandated person, such as a GP, shall not be required to make a report to TUSLA where:
The GP knows or believes that a child, who is aged 15 years or more but less than 17 years, is engaged in sexual activity, and the other party to the sexual activity concerned is not more than two years older than the child concerned.
The GP knows or believes that there is no material difference in capacity or maturity between the parties engaged in the sexual activity concerned, and the relationship between the parties engaged in the sexual activity concerned is not intimidatory or exploitative of either party.
The GP is satisfied that the child has not been harmed, is being harmed or is at risk of being harmed.
The child concerned has made known to the GP that their view of the activity, or information relating to it, should not be disclosed to the Agency and the GP relied upon that view.
TUSLA guidance
TUSLA’s Children First Guidance focuses on the legal obligations placed on mandated persons, including GPs, under the Children First Act 2015. GPs are required to report any knowledge, belief or reasonable suspicion that a child has been harmed, is being harmed, or is at risk of being harmed. The 2015 Act defines harm as assault, ill-treatment, neglect or sexual abuse, and covers single and multiple instances.
The guidelines state that if GPs are in doubt about whether their concern reaches the legal definition of harm for making a mandated report, TUSLA can provide advice. Where a GP’s concern does not reach the threshold for mandated reporting, but they have a “reasonable concern” about the welfare or protection of a child, they should report it to TUSLA.
Recommendation
Ms L is between 15-to-17 years old and her boyfriend is of a similar age with no indication of a material difference of capacity or maturity or an exploitative relationship. Provided that the GP is aware that Ms L is not being harmed, and that she also indicates that the information should not be disclosed to anybody, then the GP is under no obligation to report to TUSLA, as per section 14(3) of the 2015 Act.
In relation to the 2012 Act, the doctor needs to consider whether any of the defences apply. If the defences do not apply, then the doctor should report the matter to the gardaí.
For further advice, please do not hesitate to contact your medical defence organisation.
References available on request