The claimant parent (A) applied for judicial review of a 2004 Department of Health document entitled “Best Practice for Doctors and Other Health Professionals on the Provision of Advice and Treatment to Young People Under 16 on Contraception, Sexual and Reproductive Health”.
A’s application was concerned with the situation where a person under the age of 16 wished to obtain advice or treatment on sexual matters such as contraception, sexually transmitted diseases and abortion, was able to understand the advice and its implications but could not be persuaded to notify his or her parents or let the medical professional notify them.
The 2004 guidance stated that the duty of confidentiality owed to a young person was the same as that owed to any other person, but that it was not absolute and could be overridden in exceptional circumstances where there was a risk to the person’s health, safety or welfare.
It provided that a health professional could give advice and treatment on sexual matters, without parental knowledge or consent, provided that the young person understood the advice and its implications and his or her physical or mental health would otherwise be likely to suffer and so provision of the advice or treatment was in his or her best interests. The guidance also recommended that doctors follow the criteria set out by Lord Fraser in Gillick v West Norfolk and Wisbech Area Health Authority (1986).
A contended that a health professional was under no obligation to keep confidential, advice and treatment that he proposed to provide in respect of contraception, sexually transmitted diseases and abortion and must therefore not provide such advice and treatment without the knowledge of the parents unless to do so would or might prejudice the child’s physical or mental health so that it was in the child’s best interests not to do so. A sought a declaration that the 2004 Guidance was unlawful, in that it misrepresented the decision in Gillick. Also, that it made health professionals the sole arbiters of what was in a child’s best interests; that it made informing parents the exception rather than the rule and that it excluded parents from important decisions about the life and welfare of their children. Additionally, other than in circumstances where disclosure would be likely to damage the child’s physical or mental health, she contended that health professionals had a duty to consult the parents of a young person under 16 before providing advice and/or treatment in relation to contraception sexually transmitted diseases or abortions. Finally, A sought a declaration that the 2004 Guidance failed to discharge the State’s positive obligation to give practical and effective protection to A’s rights under Article 8(1) ECHR.
Firstly the court reviewed the decision of the House of Lords in Gillick, which held that a doctor could give such advice and treatment to a girl under 16 if she had sufficient maturity and intelligence to understand the nature and implications of the proposed treatment and provided that certain conditions were satisfied. These conditions (known as the Fraser guidelines) are:
(1) the young person understands the health professional’s advice
It found that the majority of the House of Lords in Gillick impliedly rejected the submission that a health professional was obliged to inform a young person’s parents about proposed advice on contraception. It concluded that the refusal of a competent young person to notify his parents of contraceptive treatment did not mean that the treatment could not be given. Although it was important to recognise that, on the whole, a parent was the best person for guiding and advising a young person under the age of 16, and that parents had a duty to protect their children, and that secrecy was destructive of family life, those factors did not override the duty of confidentiality owed to the child. The court in this latest case identified that the right of young people to make decisions about their own lives at the expense of the views of their parents was becoming increasingly important – Mabon v Mabon  considered.
If the general rule was that health professionals could pass on information to parents, it was likely that the effect would be to deter many young people from seeking advice on sexual matters. The likely consequences of that were very disturbing. Even though Gillick was concerned only with contraception, there was no reason why the approach in Gillick should not apply to other proposed treatment and advice. Lord Fraser’s guidelines and Lord Scarman’s criteria in that case should be adapted and applied to advice and treatment for abortion, even though abortion raised more serious and more complex issues than contraception. The approach of a health professional to a young person seeking advice and treatment on sexual issues without notifying his or her parents should be in accordance with Lord Fraser’s guidelines as adapted for abortions and sexually transmitted diseases. The 2004 guidance was not unlawful, as it made it clear that the initial and significant duty of the health professional was to seek to persuade the young person to inform his or her parents and it made it clear that the guidelines in Gillick were to be followed. It did not give doctors a licence to disregard the wishes of parents, and it was stated by Lord Fraser that any doctor behaving in this way would be failing to discharge his professional responsibilities and should be disciplined by his professional body.
The court held that where a medical professional withheld information relating to advice or treatment of a young person on sexual matters, there was no infringement of a parent’s Article 8(1) rights. A young person was equally entitled to a respect for his or her confidential health data. MS v Sweden . It was difficult to see why a parent should still retain an article 8 right to parental authority where the young person concerned understands the advice provided by the medical professional and its implications. As Lord Fraser stated in Gillick “ …the parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child ….” Even if the court were wrong, and the parents’ Article 8(1) rights were interfered with by the 2004 Guidance, the interference could be justified based on the provisions of Article 8(2) i.e. that it was in accordance with the law, necessary in a democratic society ….. for the protection or health …. or for the protection of the rights …. of others, as well as being proportionate.