0-18 years guidance: Endnotes

1. 1. Medical defence bodies and employers’ solicitors may be able to give legal advice where there is uncertainty about how a particular decision might be viewed in law. The case law surrounding treatment of very ill neonates (infants at any time during the first 28 days of life) is particularly complex. You should consider our guidance on Treatment and care towards the end of life and obtain specialist legal advice as necessary in this area.
2. 2. See Re A (A minor) (Wardship: Medical Treatment) [1993] 1FLR 386.
3. 3. See our guidance on Maintaining boundaries.
4. 4. Mental health legislation provides another legal basis for the treatment of children and young people with mental health disorders.
5. 5. See Assessment of Mental Capacity: Practical Guide for Doctors and Lawyers (BMA; Law Society, 2010).
6. 6. Family Law Reform Act 1969; Age of Majority Act 1969 (Northern Ireland); Age of Legal Capacity (Scotland) Act 1991; Adults with Incapacity (Scotland) Act 2000; Mental Capacity Act 2005; Gillick v West Norfolk and Wisbech AHA [1986] AC 112.
7. 7. See Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148, [2003] 2 FLR 1095 and paragraph 34-35 for guidance on procedures undertaken primarily for religious, cultural, social or emotional reasons.
8. 8. When a person with parental responsibility is not available, for example. See s.5 Mental Capacity Act 2005 & Chapters 5 and 12 of the Mental Capacity Act Code of Practice. If parents are available, but cannot agree with one another or are thought not to be acting in the best interests of the young person, legal advice should be sought about applying to the court to resolve disputes that cannot be resolved informally. If the young person has a mental disorder (whether or not they also lack capacity) you should consider the provisions of the mental health legislation.
9. 9. See Adults with Incapacity (Scotland) Act 2000.
10. 10. See Houston (applicant) [1996] 32 BMLR 93.
11. 11. See Re R (a minor) [1991] 4 All ER 177.
12. 12. Children Act 1989, Children Act (Northern Ireland) Order 1995 and Children Act (Scotland) 1995 give competent young people statutory rights to refuse medical or psychiatric assessments or examinations directed by the court or a children’s hearing for purposes of an interim care, supervision, child protection or emergency protection order or, in Scotland, a supervision requirement, assessment, protection or place of safety order. A young person’s refusal can be overridden in England, Wales and Northern Ireland by the inherent jurisdiction of the High Court (see South Glamorgan County Council v W & B [1993] 1 FLR 574). The position is less clear in Scotland; see Age of Legal Capacity (Scotland) Act 1991.
13. 13. See Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64, [1992] 4 All ER 627 CA.
14. 14. See Re P (Medical Treatment: Best Interests) [2004] 2 FLR 1117.
15. 15. See forthcoming guidance on personal beliefs and medical practice; The law and ethics of male circumcision – Guidance for doctors (pdf), BMA 2006; Religious circumcision of male children: standards of care, British Association of Paediatric Surgeons (BAPS) 2001, and Statement on Male Circumcision, BAPS, Royal College of Nursing, Royal College of Paediatrics and Child Health, Royal College of Surgeons of England and Royal College of Anaesthetists, 2001. Female genital mutilation (sometimes referred to as female circumcision) is a serious crime and a child protection issue, whether undertaken in the UK or abroad.
16. 16. See the definition in GMC guidance on research. This guidance does not apply to clinical audit which involves no experimental study.
17. 17. See the Declaration of Helsinki and Medicines for Human Use (Clinical Trials) Regulations 2004, which requires parental consent to complement even competent under-16s’ agreement to involvement in trials.
18. 18. See Medical Research Involving Children (MRC, 2004).
19. 19. See Guidelines for the ethical conduct of medical research involving children, Royal College of Paediatrics and Child Health: Ethics Advisory Committee in Archives of Disease in Childhood, February 2000, Vol 82, No 2, p 177-182.
20. 20. See Confidentiality: Protecting and Providing Information, Glossary, which defines ‘anonymised data’.
21. 21. See also Working Together to Safeguard Children (Department for children, schools and families, 2010) and Information Sharing: Guidance for practitioners and managers (both HM Government, 2008) for governmental guidance for England.
22. 22. The NHS Confidentiality Code of Practice explains that ‘the definition of serious crime is not entirely clear. Murder, manslaughter, rape, treason, kidnapping, child abuse or other cases where individuals have suffered serious harm may all warrant breaching confidentiality. ‘Serious harm to the security of the state or to public order and crimes that involve substantial financial gain or loss will also generally fall within this category. In contrast, theft, fraud or damage to property where loss or damage is less substantial would generally not warrant breach of confidence.’ It goes on to explain that less serious crimes, such as ‘comparatively minor prescription fraud’ might be linked to serious harm, such as drug abuse, which would justify disclosure.
23. 23. See Confidentiality: protecting and providing information, Frequently Asked Question 21, which sets out some key elements of the law on confidentiality.
24. 24. Information obtained as a result of examinations or investigations to which children or young people consented in the expectation of confidentiality should not normally be disclosed without consent either. See s.5(3) of The Data Protection (Subject Access Modification) (Health) Order 2000. See also paragraphs 46-52 on disclosing information without consent.
25. 25. See Safeguarding Children and Young People: Roles and Competences for Health Care Staff (pdf) (RCPCH, 2010). 
26. 26. A patient may no longer be in danger and request that you do not share information about past abuse, for example. Disclosure might still be justified if the abuser remains a risk to other children.
27. 27. Best Practice Guidance for Doctors and other Health Professionals on the provision of Advice and Treatment to Young People under 16 on Contraception, Sexual and Reproductive Health (DH, 2004).
28. 28. See Sexual Offences Act 2003, Sexual Offences (Northern Ireland order) 2008 and Sexual Offences (Scotland) Act 2009.
29. 29. Working Together to Safeguard Children (pdf) (Department for children, schools and families, 2010) includes advice and a list of considerations (at 5.29) to be taken into account when assessing risk in underage sex. See also Working Together: Q&A on sexual activity of under 16s and under 13s: (Department for Education and Skills, 2006) Children and Families: Safer from Sexual Crime – The Sexual Offences Act 2003 (Home Office, 2004) and the Confidentiality Toolkit (Royal College of General Practitioners, 2000).
30. 30. The Abortion Act 1967 does not extend to Northern Ireland and the grounds on which abortion may be carried out are more restrictive than in the rest of the UK.
31. 31. Gillick v West Norfolk and Wisbech AHA [1986] AC 112. See also R (on the application of Sue Axon) v The Secretary of State for Health & Anor [2006] EWHC 37 (Admin), [2006] 1FCR 175 and Best Practice Guidance for Doctors and other Health Professionals on the provision of Advice and Treatment to Young People under 16 on Contraception, Sexual and Reproductive Health (DH, 2004).
32. 32. See Best Practice Guidance for Doctors and other Health Professionals on the provision of Advice and Treatment to Young People under 16 on Contraception, Sexual and Reproductive Health (DH, 2004).
33. 33. National Service Framework for children, young people and maternity services (Department of Health, 2004); Children’s surgery – a first class service (Royal College of Surgeons of England 2000); Common Core Skills and Knowledge for the Children’s Workforce (Children's Workforce Development Council, 2010).