RSS Feed

Tag Archives: gillick

Something something oranges something part 2

Posted on May 16, 2016 by suesspiciousminds

 

You may recall the recent Holman J case in which a 16 year old subject of care proceedings had told the social worker and Guardian something personal which he did not want his parents to know, and the social worker and Guardian were divided as to whether this was something which could legitimately be kept from the parents

 

https://suesspiciousminds.com/2016/04/21/something-something-oranges-something/

The application, this time with the parents represented, was decided by Mrs Justice Roberts.

Local Authority X v HI and Others 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1123.html

It raises some interesting questions.

The Court was aware of what the information was, as were the social worker and the Guardian. The mother and father did not know what it was. All of the barristers knew the information, having agreed (upon instructions from their clients) that they would know it but not share it with them.  It is almost impossible to fathom what the parents counsel were supposed to do if the parents were making guesses as to what it might be – save for just being plummy and saying “I can’t indulge in speculation”

The parents, who were the only people in the room who didn’t know what their son’s personal information was,  really then had to work on the basis of Holman J’s categorisation of the information

  1. As to the substance of the information which I has shared, it was described by Holman J in an earlier judgment[1] in this way:-
    1. “Relatively recently, the child concerned imparted some information to a social worker, which he has repeated also to the guardian. I stress that the information does not relate or pertain at all to either of his parents or his stepmother, but relates and pertains essentially to himself. Nothing in the information is in any way critical of anything done or not done, or said or not said, by either of his parents or his stepmother. The child himself has said very strongly that he does not wish either of his parents or his stepmother to know the information in question. The guardian considers that that confidentiality should be respected and that the information should not be disclosed or revealed to either of the parents or the stepmother. The local authority are very mindful and respectful of the confidentiality of a 15-year old child who is in their care, They do not consider that, realistically and objectively, the information could or should affect any issue at the forthcoming final hearing of the care proceedings. But they do consider that if one or other or both parents did know the information, one or other or both of them might wish to seek to deploy it in some way as part of their case in the care proceedings.” (The emphasis is mine.)

The argument came into these two camps

A) The Guardian arguing that just as a doctor has a duty of confidentiality to a young person who has capacity (see Gillick) so do a social worker and Guardian have a similar duty if a young capacitous person tells them something and says that they want it to go no further.  (also relying on the  PD v SD, JD and X County Council [2015] EWHC 4103 (Fam).  which was the young person who wanted to undergo gender reassignment and did not want his adoptive parents to have any detailed information)

Thus, on the Guardian’s case as advanced by Dr Bainham, the duty of confidentiality which was found to exist as between a Gillick competent child and a doctor or other medical professional advising on, or offering, medical treatment would necessarily be extended so as to cover social workers and other professionals engaged with the young person concerned.

B) The Local Authority and the parents arguing that that was correct IF the case was not in Court, but once there were Court proceedings, the Article 6 right to fair trail would outweigh such a right to confidentiality, unless there were compelling circumstances.

  1. Specific guidance in relation to the obligations on a local authority in care proceedings was provided by Lord Mustill in the leading case of Re D (Minors)(Adoption Reports: Confidentiality) [1996] AC 593. At page 615 D to H, his Lordship set out five principles with which the members of the full court were in agreement.
    1. “1. It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party. This principle applies with particular force to proceedings designed to lead to an order for adoption, since the consequences of such an order are so lasting and far-reaching.

2. When deciding whether to direct that notwithstanding rule 53(2) of the Adoption Rules 1984 a party referred to in a confidential report supplied by an adoption agency, a local authority, a reporting officer or a guardian ad litem shall not be entitled to inspect the part of the report which refers to him or her, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

3. If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

4. If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

5. Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”

 

Obviously an important issue to resolve – young people do tell social workers and Guardians things, and sometimes they would prefer that their parents did not know. If the Guardian is right here that the approach should be in line with Gillick, then the decision would be made by the individual social worker and Guardian, and if not, the decision would be made by the Court, with non-disclosure being the exception and not the rule.

 

In the context of the present application, it is important to state that the information in respect of which I seeks to maintain privacy is not information which will have a bearing on any evaluation undertaken by the court in relation to the issue of whether or not the care which the second and fourth respondents have given, or may give in future, to I is likely to cause him to suffer significant harm such as to justify the making of a final care order. In my judgment, it will have no bearing whatsoever on any judicial investigation into the quality of the care they have provided in the past or the care they are likely to offer to I in the future in terms of the sort of care it would be reasonable to expect a parent to provide. Further, the local authority accepts that the information has not, and will not, affect or influence their decision-making for I in terms of the final care plan which is now before the court.

 

It would be very difficult to withhold from the parents information which went to whether a particular allegation in the case was true or false, or where the child was expressing a view about where his future home should be, but in this case, the Court was saying that the information was personal and not something that would have any bearing on the outcome of the case.

Father’s counsel disagreed,

  1. In his written skeleton (para 117), Mr Day on behalf of I’s father says that his client wishes to utilise the material at the forthcoming final hearing. He raises concerns that I “will become involved [in] gang culture and criminality and that corporate care will not be in his best interests. The sensitive information very much supports and grounds that contention and is required for there to be a fair trial.”
  4. With respect to Mr Day (who knows the nature of the confidential information), I can see no correlation at all between the information which I has imparted and the likelihood of his becoming involved in gang culture or the sort of criminality which is sometimes associated with such involvement or membership. The link between the two is not even tenuous in my judgment. Furthermore, the statement of intent to use the information at the forthcoming trial is made in an evidential vacuum. As matters stand, I’s father does not know anything about the information and he will not know unless and until the court authorises its disclosure. Mr Day seeks to widen the ambit of his assault on confidentiality by asserting that the material is relevant to that part of his client’s case which relates to an allegation that the local authority will not provide appropriate care for I if a final order is made. It seems to me that this is a matter for the trial judge who will be responsible for scrutinising with the utmost care the final plan advanced by the local authority.

 

What was the right test? And was the information relevant?  The Judge decided this

 

Analysis and Discussion

  1. The local authority was absolutely right to make this application. In my judgment, Holman J was also absolutely right to rule that the matter must come back to be dealt with on notice to the respondents.
  4. In terms of the correct approach to the issue of disclosure, I do not accept that I can consider issues flowing from I’s ‘personal autonomy’ in a vacuum. In my judgment, Mr Day is correct on this point. Gillick and Axon were both cases which did not involve any consideration of the engagement of Article 6 rights. In each, the applicant was seeking declaratory relief but no more. In this case, both Article 6 and Article 8 rights are engaged and accordingly the Re D test must form a part of the overall balancing exercise which I have to perform. However, it seems to me that the principles to emerge from Gillick and Axon become relevant at the stage of the balancing exercise where judicial focus is on the welfare of the child or young person. Respect for his or her views and the consequences of overriding those views where they are genuinely and strongly held must, in my judgment, form part of those welfare considerations.
  7. Dr Bainham makes the valid point on behalf of the Guardian that if Gillick principles are not accorded priority, any ‘looked after’ child in these circumstances would be at a disadvantage since his views would be accorded less respect because of the fact that he is at the centre of contested care proceedings. Whilst I can see the force of that submission, it does not in my judgment mean that I can disregard the equally important considerations which flow from the engagement of the respondents’ Article 6 rights. I’s views are important. They are entitled to considerable respect but they are one aspect of the overall balance which has to be achieved in this case. In my judgment, they are not determinative of outcome. Further, the fact that neither of his parents is currently exercising day to day parental care for I does not dilute the parental responsibility which they currently share with the local authority.
  10. The first question which must be addressed is that of relevance. Nothing which was said by I impinges upon, or affects in any way, the local authority’s case in relation to the respondents’ allegedly deficient parenting. On behalf of the local authority, Mr Krumins submits that it is important to distinguish in this context between the relevance of the information and the weight which can properly be attached to it. In relation to relevance, he contends that the threshold is low. Nevertheless, he concedes that the information is unlikely to assist the trial judge and will ultimately make no difference to outcome. I bear in mind the observation of Thorpe LJ in Re M (Disclosure) that if there is anything within the local authority’s care plan which gives rise to concerns, that may well be adverse to the respondents’ case should disclosure be withheld. However, where the principal challenge to, and defence of, the care proceedings amounts to a denial by the second and fourth respondents of the poor parenting which gives rise to the perceived risk of significant harm to I, it is difficult to see how a care plan which involves removal from that harmful environment can be said to raise independent concerns. That will be the central issue for the trial judge to determine.
  13. I have significant concerns about whether or not the information for which protection is sought is truly relevant to these proceedings. Whatever subjective views Mr Day may seek to advance on behalf of I’s father, it is difficult to see how any objective analysis of the information could lead to the conclusion that it has any relevance to the issues to be determined later this month. However, for the purposes of my judgment and on the basis that Mr Day is right and it has some tangential (or greater) relevance, I must go on to apply the balancing test set out in Re D.

 

Having decided to approach the matter on the Re D principles, the Judge went on to consider whether disclosure would present some risk of significant harm to the child

 

  1. Thus, the next question to be answered is whether disclosure of this information would involve a real possibility of significant harm to I.
  4. The Guardian and the local authority are not agreed on this aspect of the case. The local authority accepts that disclosure would be likely to expose I to an awkward and embarrassing situation, but no more. Within the material which has been put before the court is a statement prepared by a social worker on behalf of the local authority. It is dated 8 April 2016. In that statement, the social worker, AB, expresses the view that I may be embarrassed or ashamed as a result of disclosure. However, she acknowledges, too, that he may in future be reluctant to share information with professionals if the information is revealed to his parents against his wishes. Her statement also raises an issue as to whether what he said was true in any event.
  7. The concerns of the social worker find strong reflection in the Guardian’s evidence. She tells me that, knowing what she does about I’s father and step-mother, she believes neither ‘would … be able to respond to the information in a child-centred way at all, and that this could have emotionally devastating consequences for [I]’. She sets out in her evidence a report which she had received from a colleague who was present at a recent LAC review which was attended by I’s father and step-mother. One of the issues for discussion on that occasion was their willingness to engage in some work with an appropriate professional in order to assist their understanding of I’s needs. Their presentation on that occasion was said to be “extremely oppositional, even in [I’s] presence”. The report which emanated from that meeting is recorded in the body of the Guardian’s statement in this way.
    1. “It was appalling … [I’s father] totally took over, attempting to intimidate the professionals, leading to … [I] putting on the hood of his jacket and pressing his forehead onto the table in what appeared to be a combination of anxiety, frustration and sheer embarrassment. His wife [I’s step-mother] then started a wholly inappropriate and crass attack on the social worker – how can she do the job at her age, not having children. Basically, following father’s continued ranting and finger-pointing at me, I had no choice but to prematurely bring the review to an end. I’m far from convinced that the LA should be promoting contact for [I] with them. Before there can/should be any relationship work undertaken, perhaps father in particular should be advised to see his GP regarding having anger management and/or counselling. He certainly won’t be invited to the next review unless he makes some radical changes.”
  9. The Guardian expresses her very real concerns that the good relationship which I has managed to establish with his social worker and foster carer may be damaged by disclosure of the information which he wishes to keep private. Those relationships are important to him because they enable him to confide in these professional carers and, in turn, to receive appropriate support and guidance. To override his express wishes may undermine his trust in professionals making it difficult for them to offer the level of help and support from which he has so clearly benefitted to date. This would be entirely counter-productive and inimical to his best interests. She has no confidence in either the father’s or step-mother’s ability to respond appropriately or sensitively to something which I regards as a personal and embarrassing episode and she regards the prospects of disclosure as being ‘highly detrimental’ to his welfare.
  12. Thus, it seems to be common ground that disclosure to the parents will cause I emotional upset and some distress. The disagreement centres on the level of emotional harm and whether or not this is likely to be “significant”.
  15. On behalf of the father, Mr Day submits that “the worst reaction could be that the father is dismayed, disappointed and at worst may remonstrate with his son”. On behalf of I’s step-mother, Mr Fletcher reminds me that I has been told by his social worker that it is not possible for her to provide him with a guarantee that anything he tells her will remain private as between them. He points to the absence of any direct statements by I himself as to his fear of his parents’ reaction. He invites me to consider whether any perceived harm could be mitigated by putting in place safeguards so as to ensure that I was protected from any such reaction from his father and step-mother as that anticipated by the Guardian.
  18. I have to bear in mind that I is a very vulnerable young man. He is not yet 16 years old and has already been the subject of two separate sets of care proceedings. He has been found to have suffered neglectful and abusive parenting at the hands of his mother. His experience of life was fractured when he left his home with her to live in a completely different part of the country with his father and step-mother. His unhappiness and distress in that placement is reflected in his attempts to abscond and his absolute resistance to any return to that household and any form of continuing relationship with his father and/or his present wife. Whilst I accept that it is an untested account, I regard the record of what transpired at the recent LAC review as providing a valuable insight into what I is likely to be experiencing at the present time in terms of the conflict which appears to exist between his family and the professionals who are currently caring for him. The picture of I which emerges from the record of that meeting is one of a young man who has few, if any, coping strategies for dealing with that conflict. I do not accept that the absence of a specific reference by I to fear of his father’s reaction should lead me to a conclusion that he has no such fear. On behalf of the mother, Miss Bartholomew supports the Guardian’s position that there is a real risk of further significant harm to I in the event of disclosure. She records in her written submissions the mother’s historic and ongoing concerns about the aggressive and inflexible behaviour demonstrated by his father. She is concerned that his reaction to the information may well place I at risk of significant harm.
  21. In my judgment, whether one applies the label of “significant” or “real” harm to the question, there is indeed a real possibility of significant and detrimental harm to I if this information is disclosed. In his evidence in response to the local authority’s case, I’s father has denied entirely that his son is suffering, or has suffered, from any significant emotional harm. He accepts that he has shouted at I but justifies this on the basis that, “If you don’t stand up as a parent, the children are going to walk on you”. It is said that he referred to I in highly derogatory terms because of his educational difficulties. He does not admit using any such inflammatory terms but still refers to I in his statement as “this little boy”. I am satisfied that there is a clear risk that the consequences of disclosure of this material may well result in I’s disengagement from the professionals who have provided him with guidance and support since his reception into care. He has been damaged by his experience of family life in recent years and findings in relation to threshold have already been made in the context of the interim care order which sanctioned his removal from his father’s home. If his current support structure were to be put at risk for any reason, he may well withdraw and internalise issues thereby putting his happiness and future wellbeing at significant risk.
  24. I bear in mind, too, that whether or not the trial judge makes a final care order at the conclusion of these proceedings later this month, any prospect of repairing the relationship between I and his father will inevitably have to involve some form of therapeutic input from an appropriate professional or professionals. In this respect, it is essential that I believes that he can repose trust and confidence in those professionals and the care and support they will be providing. It would be harmful to him, and significantly so, if the chance to restore some form of relationship between parent and son in future were jeopardised because of a disclosure now of information which he regards as confidential.

 

The next step was to balance the article 6 rights and article 8 rights.

 

  1. In these circumstances, the final step is to weigh the interests of the respondents in having the opportunity to see and respond to the material. This involves a rigorous consideration of the engagement of their Article 6 and Article 8 rights.
  4. Given what I have already said in my judgment, I can dispose of the issue in relation to their Article 8 rights in fairly short order. These rights, whilst engaged, cannot take precedence over I’s Article 8 rights and he is clearly expressing a wish for no communication with his father or step-mother at the present time. As Yousef makes clear, the child’s rights are the paramount consideration in any balancing of competing Article 8 rights.
  7. As to the respondents’ Article 6 rights, the relevance of the information to outcome has already been addressed. In my judgment, it is of tangential or minimally indirect relevance at its highest and is completely irrelevant at its lowest. The local authority accepts that it will not impact upon outcome or future planning for I. The respondents’ rights to a fair trial are, of course, absolute but, as Lady Justice Hale acknowledged in Re X, in deciding how to conduct a fair trial, it is perfectly reasonable to take account of the facts and circumstances of the particular case with which the court is dealing. The concept of a fair trial is inviolable but the content (including the evidence) which is placed before the court is flexible and depends upon context and the issues with which the court is dealing. Whilst I accept that any departure from the usual requirements in relation to the disclosure of evidence in an adversarial trial must be for a legitimate aim and proportionate to that aim, the Court of Appeal has held that protecting the welfare of vulnerable young persons is a specific and undoubtedly a legitimate aim.
  10. In my judgment, the harm which would be caused by disclosure of information which has very little, if any, relevance to the issues which need to be determined by the court would be wholly disproportionate to any legitimate forensic purposes served. I am entirely satisfied that depriving the respondents of the opportunity to have this information will not deny to any of them a fair trial. Disclosure would, however, be a breach of I’s Article 8 rights.
  13. Considering all these matters in the round, I have reached the clear conclusion that the case for non-disclosure of the information which is the subject of the Guardian’s current application is compelling. The circumstances of this case, looked at in the round, do make it exceptional and I regard it as entirely necessary that I’s confidence and privacy in this information is maintained. I cannot overlook the fact that, as a Gillick competent young person, he has expressed in the clearest terms his wish that the family should not have access to the information. Those wishes deserve the court’s respect, albeit in the context of the overall balancing exercise which I have conducted

 

This particular passage has some broader significance – the right to a fair trial does not mean that a person gets to run the case exactly as they please, the Court controls the content and nature of the hearing whilst still having the duty to secure that the trial is FAIR

 

The concept of a fair trial is inviolable but the content (including the evidence) which is placed before the court is flexible and depends upon context and the issues with which the court is dealing

 

Finally, the Judge recognised that the parents knowing that something was being kept from them (even if most of us can guess what it might be) was difficult

 

Finally, I would conclude by echoing the words of Holman J which are exquisitely apt in this case. I, too, am deeply conscious that whenever disclosure issues of this kind arise, there is inevitably a problem once parents or other interested respondents are put on notice that there exists some information in respect of which the court has supported an application for non-disclosure. As Holman J observed, ‘”conspiracy theory” and imaginings may inevitably take over’. The parents and step-mother may well be concerned that the information is graver than it actually is. I would hope to reassure them by my finding in relation to the likely relevance of the information to the issues which are at stake.

1 Comment

Posted in Uncategorized and tagged , , , , , , , , , . Bookmark the permalink.

Child in care wanting parents to have no information or involvement

Posted on March 11, 2016 by suesspiciousminds

 

This issue has to be one of the most Frequently asked questions that I get as a Local Authority lawyer  – “Little Frank is in care and he doesn’t want his mum to know X,  do I respect Frank’s wishes, or respect the duty in the Act that parents are to be consulted with about major issues?”

 

[Very often this comes up in relation to contraception, pregnancy etc, but also sometimes just that the young person wants no information about themselves to be communicated by the Local Authority to their parent]

 

In this case, PD v SD & Another 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/4103.html

 

Keehan J was faced with a child who had been born a girl, named HD, who had changed her name to PD and wished to change her identity to male.  He was 16 years old, and had been adopted at the age of 6. Things had become difficult and unworkable, and PD was in voluntary care under section 20 of the Children Act 1989.   PD was going on to have assessment and assistance from the Tavistock about his gender identity. He did not want his adoptive parents to be involved or given any information.

It became as stark as this :-

So strongly held are his views that Ms. Morgan QC told me he would even wish his parents not to be notified if he were required to receive emergency medical treatment. The depths of his wishes are conveyed by his view that if he suffered a serious accident and underwent emergency surgery he would not want to wake and find his parents at his bedside.

 

Meanwhile, his parents were still hopeful of a reconciliation and wanted to be involved in PD’s life in some capacity.

 

  1. THE LAW
  3. It is agreed by all parties that I have a jurisdiction to grant the declaratory relief sought by P.
  4. By virtue of s.8(3) of the Family Law Reform Act, P, now aged 16, can give valid consent to medical and surgical treatment.
  5. If P was not provided with accommodation by the local authority and was not a looked after child, the local authority would not be obliged to consult with or give information to P’s parents.
  6. Since he is a child looked after by the local authority, it is obliged by s.22 and s.26 of the Children Act 1989 to consult with and give information to the parents. Section 22 provides:

    “Before making any decision with respect to a child whom they are looking after or proposing to look after the local authority shall, so far as it is reasonably practicable, ascertain the wishes of-

    (a) the child;

    (b) his parents;

    (c) any person who is not a parent of his but who has had parental responsibility for him; and

    (d) any other person whose wishes and feelings the authority consider to be relevant regarding the matter to be decided.”

    There are further obligations in a similar vein imposed by the provisions of the Care Planning, Placement and Case Review (England) Regulations 2010.

  7. The Article 8 Convention rights of P and of his parents are engaged. I take particular account of the decision of the European Court of Human Rights in Yousef v Netherlands [2003] 1 FLR 210, that where there is a tension between the Article 8 rights of the child, on the one hand, and the parents, on the other, the rights of the child prevail.
  8. In the case of Re C (Care: Consultation with Parents not in Child’s Best Interests) [2006] 2 FLR 787, Coleridge J decided it was not in the best interests of the subject child for the local authority to consult with or give information to the father. In his judgment he expressed the view that it was only in very exceptional circumstances that such an order would be appropriate. The factual matrix of that case was very different from the circumstances of this case.
  9. In my view, rather than considering whether the facts of the case are very exceptional, although in my judgment the facts of this case are very exceptional; I should instead focus on the competing Article 8 rights of P and of his parents.

 

 

There were three major relevant pieces of caselaw – it won’t surprise anyone to know that one was Gillick. The second was Naomi Campbell’s privacy case, setting out that a person’s medical records and medical treatment is private. The third is one precisely on point as to when a young person acquires the right for their medical treatment to be kept confidential from a parent.

 

  1. In the case of Gillick v West Norfolk and Wisbech Health Authority [1986] 1 AC 112 Lord Scarman said, at 185(e):

    “The rights of a parent exist primarily to enable the parent to discharge his duty of maintenance, protection and education until he reaches such an age as to be able to look after himself and make his own decisions.”

  2. Baroness Hale, in the case of Campbell v Mirror Group Newspapers Limited [2004] 2 AC 457 said at p.499:

    “It has always been accepted that information about a person’s health and treatment for ill-health is both private and confidential. This stems not only from the confidentiality of the doctor/patient relationship but from the nature of the information itself. As the European Court of Human Rights put it in Z v Finland [1997] 25 EHRR 371:

    “Respecting the confidentiality of health data is a vital principle in the legal system with all the Contracting State parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in health services generally. Without such protection those in need of medical assistance may be deterred from revealing such information of a person and intimidate nature as may be necessary in order to receive appropriate treatment and even from seeking such assistance, thereby endangering their own health and, in the case of transmittable diseases, that of the community.””

  3. I was referred to the case of Regina on the Application of Sue Axon v Secretary of State for Health [2006] EWHC 37 (Admin). During the course of judgment Silber J said, at para.64:

    “It is appropriate to bear in mind that the European Court of Human Rights attaches great value to the rights of children. Furthermore, the ratification by the United Kingdom of the United Nations Convention on the Rights of the Child in November 1989 was significantly showing a desire to give children greater rights. The ECHR and the UNC show why the duty of confidence owed by a medical professional to a competent young person is a high one and which therefore should not be overridden except for a very powerful reason. In my view, although family factors are significant and cogent, they should not override the duty of confidentiality owed to the child. It must not be forgotten that this duty was described in Z v Finland as a vital principle in the legal system of all Contracting Parties to the Convention.”

    Then at para.127 he said:

    “I am unable to accept Mr Havers’ contention that by permitting a medical professional to withhold information relating to advice or treatment of a young person on sexual matters, the Article 8 rights of the parents of the young person were thereby infringed. In considering this issue, it must always be remembered first, that in Z v Finland the European Court emphasised the significance and compelling nature of a patient’s Article 8(1) right to confidentiality of health information as explained in paragraph 63 above. A similar approach was adopted in MS v Sweden, in which it is said at page 337 in paragraph 41 “respecting the confidentiality of health data is a vital principle in the legal systems of all Contracting Parties to the Convention”. Although these cases deal with the position of an adult there is no good reason why they could not apply to protect the confidentiality of health information concerning a young person, especially because, as I have explained, that a duty of confidentiality is owed to a young person by medical professionals.”

    Finally, at para.130 to para.132 he said:

    “As a matter of principle it is difficult to see why a parent should still retain an Article 8 right to parental authority relating to a medical decision where the young person concerned understands the advice provided by the medical professionals and its implications. Indeed, any right under Article 8 of a parent to be notified of advice or treatment of a sexual matter as part of the right claimed by Mr. Havers must depend on a number of factors, such as the age and understanding of their offspring. A parent would not be able to claim such an Article 8 right to be notified if their son or daughter was, say, 18 years of age and had sought medical advice on sexual matters, because in that case the young person is able to consent without parental knowledge or consent for the reasons set out in paragraph 1 above. The reason why the parent could not claim such a right is that their right to participate in decision making as part of the right claimed by Mr. Havers would only exist while the child was so immature that his parent had the right of control as was made clear in Gillick. In my view, any Article 8 right of the kind advocated by Mr. Havers must be seen in that light so that once the child is sufficiently mature in this way the parent only retains such rights to family life and to be notified about medical treatment if, but only if, the young person so wishes. Indeed, whether there is family life and hence a right to family life of a particular family is a question of fact. The European Commission on Human Rights has explained the existence of family ties depends upon the real existence and practice of close family ties. It is not clear why the parent should have an Article 8 right to a family life where first the offspring is almost 16 years of age and does not wish it, second where the parent no longer has a right to control the child for the reasons set out in the last paragraph and third where the young person, in Lord Scarman’s words, “has sufficient understanding of what is involved to give a consent valid in law”. There is nothing in the Strasbourg jurisprudence which persuades me that any parental right or power of control under Article 8 is wider than in domestic law. Parental right to family life does not continue after the time when the child is able to make his own decisions. So parents do not have Article 8 rights to be notified of any advice of the medical profession after the young person is able to look after himself or herself and make his or her own decisions.”

  4. I respectfully agree with Silver J’s analysis of the law and of the relevant legal principles.

 

There were therefore two competing Article 8 rights to balance, and the Court considered that they were to be balanced in favour of the young person, who was 16 and capacitious and understood the issues involved and had made his decision that he did not want his parents to be given that information.  [I think there’s an argument that this rather reverses Coleridge J’s decision in Re C – rather than becoming exceptional that a Local Authority respect a child’s wishes not to share information with a parent, it seems to become the norm if the child is capacitious and expressing a view not to share the information – though this was, and is, of course an exceptional case]

 

  1. DISCUSSION
  3. The situation in which P and the parents find themselves is extremely difficult for each party. The parents struggle to understand P’s position, feelings and his decision about his gender. He struggles to understand their complete lack of support and understanding. The upshot is that he, at 16 years of age, has decided to completely disengage from family life with them.
  4. On the basis of the authorities I have referred to above, that is a decision he is perfectly entitled to reach and is one which this court must respect.
  5. There is no issue that P should be afforded privacy in respect of his medical treatment. In any event, I am entirely satisfied that he is entitled to respect of his privacy on these matters as a matter of law.
  6. I am pleased to learn that the parents, having expressed a willingness to engage with the Tavistock Centre throughout, will continue to seek guidance and support from the same. I am sure that will be extremely helpful for them. It may well help them to come to an understanding of why P finds it so distressing when they have referred to him as H.
  7. Like the parents, I very much hope the time will come when a reconciliation is effected between P and the parents. In my judgment, however, the surest way of seeking to secure that outcome, is to respect P’s current wishes and feelings.
  8. When balancing P’s Article 8 rights against those of the parents I am entirely satisfied the balance falls decisively in favour of P’s Article 8 rights. At the age of 16, having decided to disengage from his family in the very sad circumstances of this case, it is for P to decide what, if and when any details about his life are given to his parents. I have taken particular account of the genuine and sincere conviction with which P has expressed his views and wishes. It would, in my judgment, be wholly contrary to (a) his welfare best interests, (b) his Article 8 rights and (c) any hope of a reconciliation being effected for the court to override his views and permit or require the local authority to provide information about P to his parents.
  9. Accordingly, I propose to grant declaratory relief as sought by P.
  10. I know that this decision will be a source of real disappointment and distress to the parents. I hope, however, they will understand the reasons for my decision in the fullness of time.

 

[Another way of looking at it, not considered within this judgment, is whether the LA are capable of complying with the section 22 duty to consult with a parent where the young person is Gillick competent and objects, because of the provisions of the Data Protection Act and that the subject has rights about how their information, particularly sensitive personal information such as this is processed]

 

Very sad case, where you have to feel for everyone involved, and just hope that for all of them what must be extremely difficult and painful now may result in less pain and hardship in the future.

110 Comments

Posted in adoption, case law and tagged , , , , , , , , , , , . Bookmark the permalink.

Thirteen year old has the capacity to terminate pregnancy

Posted on May 12, 2014 by suesspiciousminds

You may have encountered this one in the mainstream Press – even the Telegraph coverage was fairly low-key and restrained and came close to appreciating that we sometimes ask High Court Judges to make decisions that none of us would want to have to take. (Hopefully the Telegraph’s supply of raw steaks will arrive later in the week and normal service will be resumed)

 

The case is Re A (a child) 2014    (seriously truly, could not even a sentence in the Encylopedia Munbytanica of guidance we’ve had to swallow have covered “Judges, please give your cases names that drop a hint as to what they are about”? )

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1445.html

 

This was the High Court being asked to provide guidance on whether this SPECIFIC 13 year old had the capacity to consent to the termination of a pregnancy that she was asking to have. It doesn’t mean that all 13 year olds, or even an average 13 year old can agree to an abortion, it was dealing with a SPECIFIC child. Although of course in the process of answering that specific question, guidance for later cases does emerge.

The child A, was 21 weeks pregnant, and learned of the pregnancy 4 days earlier when her grandmother took her to the doctors. Now, where in a Court of Protection case, the Court would determine whether A has capacity, and if not, make a best interests decision, the High Court are in a different situation – they simply had to decide whether A had the capacity to make that decision for herself.

The Trust involved had tried to ascertain with A, what her understanding of the issues were

 

 

  • The previous meetings between A and the specialists revealed her to be uncommunicative and in the result a view was formed or, at the very least, a doubt was raised as to whether she had the necessary competence. At this point, I should explain what the legal test is for the necessary competence. It is set out in the well-known case of Gillick v West Norfolk and Wisbech Area Health Authority & Anr, [1986] 1 FLR 224 at page 239 in the speech of Lord Fraser Tullybelton where he stated:

 

 

“I conclude that there is no statutory provision which compels me to hold that a girl under the age of 16 lacks the legal capacity to consent to contraceptive advice, examination and treatment provided that she has sufficient understanding and intelligence to know what they involve.”

 

  • The Trust has been represented before me by Mr Mylonas, QC and he agrees that if I am to determine that A does have sufficient understanding and intelligence to know what a termination would involve, then that is the end of the matter. The actual decision in Gillick concerned the provision of contraception. In that case, the attempt by Mrs Gillick to have declared unlawful a policy which would have permitted her children under the age of 16 to be given contraception was unsuccessful.

 

 

 

  • It is implicit in that decision that provided the child, under the age of 16, has sufficient understanding and intelligence, she can then be lawfully prescribed with contraception even if the result of that would lead her to take steps which are wholly contrary to her best interests. So, the question of best interests does not really inform the primary decision I have to make which is whether she has the necessary capacity.

 

The Judge took the unusual step of rather than attempting to summarise the evidence of the consultant psychiatrist, Dr Ganguly, he would instead annexe it to the judgment. It would therefore be wrong of me to try to summarise it, and as it is relatively short, I will set it out here

DR SAROJIT GANGULY (AFFIRMED) (Via Video link)

MR JUSTICE MOSTYN: Thank you very much. Dr Ganguly, I am the judge sitting in this court today. I just want to read out one very short passage from the famous decision of Gillick v West Norfolk & Wisbech Area Health Authority [1985], all right.

A. Yes.

MR JUSTICE MOSTYN: It is very short. It says this:

“There is no law which compels me to hold that a girl under the age of 16 lacks the legal capacity to consent to contraceptive advice, examination and treatment provided that she has sufficient understanding and intelligence to know what they involve.”

A. That’s correct.

MR JUSTICE MOSTYN: That is the test.

A. Yes.

MR JUSTICE MOSTYN: Now you will be asked some questions by Mr Mylonas.

 

MR MYLONAS: Can I first of all ask you questions about your expertise, how long you have been a psychiatrist for and what your experience is of carrying out capacity assessments.

A. Sure. My name is Dr Sarojit Ganguly. I am a Member of the Royal College of Psychiatrists and I am on the specialist register for child adolescent psychiatry, so I am a child and adolescent psychiatrist. I have been in psychiatry for the last ten years or so and I have been a consultant in child and adolescent psychiatry for the last four months. I am employed by the Bradford District Care Trust.

Q. You have been involved with paediatric psychiatry. How often do you carry out assessments of capacity in children?

A. I have to say that this very formal setting, and I am being asked questions in a very formal court setting, I have not had occasion to give evidence in terms of capacity for a young person. But having said that, any kind of decision that we take, any kind of treatment that is undertaken for young people day in and day out, involves a capacity assessment as part of routine.

Q. When did you assess A — we will refer to her as A because we are sitting in open court and members of the press may attend?

A. I assessed her this morning.

Q. Where did that assessment take place?

A. This was at the Bradford Royal Infirmary at N4 Ward. That is one of the maternity wards in Bradford Royal Infirmary.

Q. How long did you speak to her?

A. We stayed for approximately 45 minutes.

Q. Had you had the opportunity to speak to any of the other family members?

A. That’s right. I had occasion to speak to A’s mum and her grand mum, and I also previously spoke to the social worker to ascertain the background of the situation and the case and to ascertain some of the history regarding A.

Q. When you spoke to A, did you form the view … what view did you form about her understanding of the pregnancy?

A. From what I observed today, she certainly had a good understanding of the fact that she was pregnant and what it involved. We had fairly extensive discussions … can you hear me?

MR JUSTICE MOSTYN: Yes; very clearly.

A. So we had fairly extensive discussions with regards to both the pregnancy and some of the options and she seemed to be really following the conversation quite clearly.

Q. Can I just ask some specific questions then?

A. Yes.

Q. And I want some understanding of the different options open to her. If she continues with the pregnancy, did you form a view that she understood what that would mean, both during the course of the pregnancy and after she had had the child?

A. Well, what she did tell me was that she wanted a termination of pregnancy and she said that the reason why she was saying that was that, in her view, she would not be able to cope with carrying on with the pregnancy and that she would be feeling stressed if she carried on with the pregnancy.

 

Q. That is a very helpful one sentence summary of her position. How much discussion was there between you about her desire to end the pregnancy?

A. Sure. Well, in the first instance she was asked about what her views were and she was clear and persistent throughout the interview in saying that she wanted a termination of pregnancy, that she did not want the baby, is the way that she put it I think. We communicated to her or we asked her … sorry, I will rephrase that. We went with her about the various options, including having a termination, continuing with the pregnancy, having the baby, having the baby taken away or perhaps rearing the child and she was able to, in my opinion, understand it because she was able to recount, she was able to tell us again, she was able to retain the information and tell us what these options were. So it would appear that she had a fair amount of understanding of what we were talking about.

Q. Can I move on then to deal with her understanding of what was involved in a termination.

A. Sure.

Q. Because what is involved in a pregnancy and the birth, the fact she would have a small child to look after is perhaps more obvious to a 13 year old girl than what is involved in a termination.

A. Yes.

Q. What did you explain to her about what was involved in a termination?

A. Sure. During this interview, the obstetrician, Dr Kukreja was also present and that was very helpful because she was able to go through in great detail about both the procedure and the risks and benefits of the procedure in question. Whilst these options were being discussed, she had sufficient option to check out anything that she did not understand and we tried to make the discussion child-friendly so that she would be able to understand the gist of what we were saying. So I think there was a fairly extensive discussion about what the termination of pregnancy involved in terms of both the process as well as the risks.

Q. Can I just compare that very important view with the information that is before the court arising from discussions with the paediatricians and obstetrician previously when it was suggested that A was not very communicative and that the provisional view was reached that there was some doubt about her ability to understand. It sounds as though she was much more communicative this morning?

A. I have not seen her prior to today morning but from what I have been told and having chatted with my colleagues, other clinical colleagues, yes, it would appear that … I can only suppose that this has been a particularly stressful week for her and from what I have been told by the other doctors, that she was definitely more communicative today than she was previously, bearing in mind that it was not … she still comes across as a very soft-spoken girl and one has to bear in mind that, you know, her age is such and the situation was such that she didn’t say a lot. But I think in my opinion she said enough to be able to communicate and to tell us clearly about what she wanted.

Q. Can I just go back then, when you talk about the discussions and the obstetrician having gone through the procedure in great detail, and any checking of it. Did you form a view about whether she understood what was being explained to her and understood the consequences of a termination?

A. It is difficult to exactly say whether she understood every nuance of the conversation, but it appeared as if she definitely got the gist and the main points of what was being discussed in that what the procedure would involve, for example, taking tablets, et cetera, in, for example, what would happen if it did not carry on according to plan, that some of the options that the doctors might have to go through. So these things I think in broad and general terms I think she understood. Whether she understood everything in great detail is questionable, because she is after all, 13 years old. So I would say that she understood the gist of it to the extent that it would be necessary for her to reach a decision.

Q. And fundamentally that, if she reached a decision to terminate the pregnancy, that she would no longer have the baby and there would be no prospect of her continuing with it?

A. Exactly that. Exactly that.

MR JUSTICE MOSTYN: Could you ask if she understood the risks of this surgery, what could go wrong?

MR MYLONAS: Doctor, you spoke about the obstetrician discussing the details with A, as part of that conversation, were the risks discussed as well, the risks of termination?

A. Yes, they were. There were a couple of things to direct here. I think what was being communicated very clearly was that under the circumstances, any course of action would carry a certain amount of risk and I am just putting, I am just basing my statement here from what I have heard from my other medical colleagues here, but my understanding from those conversations was that any course of any action, as in carrying on with the pregnancy or the termination of pregnancy, carried with them sufficient amount … sorry, it carried with them risks, and it would be difficult to actually say which one would be a more risk process actually. I think in the conversation with A, there was very clear communication about risks involved with the termination of pregnancy procedure.

Q. Thank you. His Lordship’s question was whether you thought she understood the risks that were being explained to her?

A. I think in general terms yes. I mean, for example, some of the things that the doctor was telling her was that, you know, if the medicines were not sufficiently successful, then she may have to stay in hospital, she might have to go through invasive procedures, there might be risks of infection, it might affect, for example, the prospects of having children subsequently. So actually, without going into too much detail, I think we had a fairly extensive discussion about the various risk elements, both immediate and subsequent. And in the room, of course, her mum and grandmother also at hand and they felt that the discussion was something that I think A was … she understood adequately.

Q. Can I just deal with two more issues? You have referred to mum and grandma being in the room with her and I know that she has been staying at home with her mum and possibly her grandma overnight. Did you form the view that her decision about the termination was her own wish or that she had been, perhaps, coerced or pressed into that decision by —

MR JUSTICE MOSTYN: Or influenced.

MR MYLONAS: — or influenced by her family?

A. We went into that specifically. We addressed that question specifically during our interview this morning and both A herself … I mean, A was clear in telling us that this decision was her own, that she had made up her mind. Independently, the mum and grandma said that they did not in any way coerce her into this decision. I would also like to point out that in the interview itself, I did not detect any obvious sign of distress from A’s part. She seemed calm, she seemed appropriate. Her responses, her eye contact and her speech seemed appropriate and I did not feel in my opinion, I did not detect any sign of distress or any suggestion that she might be either distressed or suffering from any acute mental illness for that matter.

MR JUSTICE MOSTYN: Right.

MR MYLONAS: There was only one other issue I just wanted to see if you could help us with, Doctor. You may want to address this because it was a primarily an assessment of capacity. One of the issues is about the impact of either a termination or continued pregnancy on A. Have you formed a view as to whether or not it would be in her best interests from her mental health perspective to continue or to end the pregnancy?

A. That is a very difficult thing to comment on you will appreciate. Having said that, one of the things that A specifically said when they asked her about why she wants not to have the baby, she said that having… continuing with the pregnancy or having the baby would, I quote, she said that “I will not be able to cope.” When I asked her what she meant by that, she said that she would feel too stressed. So I would assume from this response that in her mind, continuing with the pregnancy would be something that she would find distressing as to what effect directly it might have in terms of either the termination or the continuing of pregnancy. At this point in time it is difficult to assess because, as I said, in the interview as such, she presented as appropriate and there was no sign of distress. I have heard that she is generally a bubbly, happy child from what her parents tell me. So once again, it is difficult to say with certainty what the effect might be but from her own point of view, she communicated that it would be stressful to carry on with the pregnancy

 

Having heard that evidence, these were the Judge’s conclusions

 

  • he (Dr Ganguly) was clear that A had a very clear understanding of her position and of the options that were available to her. Those options, namely continuance of the pregnancy or its termination, were discussed.

 

 

 

  • Dr Ganguly was clear to me that she fully understood the implications of the options; the risks that were involved in relation to each option were explained to her and, in his opinion, she fully understood that. Although she was softly spoken, she was able to explain to him that her wish was to terminate the pregnancy as she felt that she could not cope with its continuance and it would stress her to a considerable degree. She was very clear in her understanding that whichever option she chose it would carry a certain amount of risk

 

 

 

  • Dr Ganguly was also clear that the decision that was reached by A was hers alone and was not the product of influence by adults in her family. Dr Ganguly did not detect in her any sign of distress when she set out her position to her.

 

 

 

  • On the basis of that evidence which, as I say, I have attempted to summarise, probably inadequately, I am completely satisfied that A has sufficient understanding and intelligence within Lord Fraser’s definition and I accordingly make a declaration to that effect. It will now be for A to decide what she wishes to do. Her present intention is to have a termination and, of course, if she goes down that route she must have it soon because the legal 24-week limit is fast approaching. If she decides to continue with the pregnancy, then I am expecting that her family and, indeed, Social Services will need to give her considerable support and assistance. It also goes without saying that should she go through with a termination her family will need to be at her side and to assist her and support her after what is inevitably going to be an unpleasant and traumatic experience.

 

 

 

  • All those latter comments of mine are irrelevant to the primary decision I have to make which is that I am satisfied that A has the necessary capacity to make her own decision. The consequence of that declaration is that if a termination is performed, there is no question of any liability, either civil or criminal, being imposed on the Trust or any of the clinicians who are involved in the procedure.

 

 

The Judge sat in open Court to give the judgment  I am giving this judgment in open court. It is important that I begin with that statement so that anyone who later reads the transcript of this judgment understands that proceedings of this nature are not done in secret by some mysterious court determined to prevent the public from knowing what is being done in its name.

 

He did go on to make a Reporting Restriction Order preventing the child from being identified, for obvious reasons.

 

It appears that A had a very supportive family, who were going to be there for her and were not challenging her decision or her capacity to make that decision. That probably would not have materially affected the outcome, since as we know from Gillick, if the child has capacity to make her own decision, resistance from those who hold parental responsibility for her does not allow them to veto her decision. But as the Judge observed, this girl will need all of the love and support of her family in what is bound to be an emotional and painful time.

 

The Judge shied away from setting a specific set of capacity questions on consent to an abortion, focussing instead on whether she understood what was being explained to her and was weighing it up against what she felt was best for her (this seems to be in the spirit of the new approach – there was a Court of Appeal decision from the Court of Protection last week RB v Brighton and Hove City Council 2014  [Suesspicious Minds was not involved in the case in any way] http://www.bailii.org/ew/cases/EWCA/Civ/2014/561.html where the Court of Appeal were deprecating the concept of professionals on the ground having to ascertain capacity with reference to volumes of caselaw rather than the principles of the Act itself)

As I said at the outset, we have to be mindful that we as a Society end up giving responsibility to High Court Judges to make decisions where there is no easy answer and there was going to be a sad outcome in either course of action. I think this Judge was careful, courteous, thoughtful and kind.

 

I hope that this never comes up, but I imagine that a Trust would have a very difficult time, ethically speaking if a 13 year old who lacked capacity but was clearly saying “No” to a termination was having consent exercised on her behalf by parents saying “yes”.  I hope that I never have to read a judgment like that, because it would be an awful situation for everyone. As a matter of law, the parents would have the right to consent, but the doctors are not necessarily obliged to provide the operation. I don’t think that a Court could compel them.

 

4 Comments

Posted in case law, court of protection and tagged , , , , , . Bookmark the permalink.