This scenario encompasses issues of Consent and Confidentiality, but there are specific differences when children are concerned. In Scenario 2 in the chapter, there was a presumption that Joe was competent to make decisions concerning his treatment, but that the onus fell upon the healthcare professionals to overturn this presumption. For children below the age of 16, there is a presumption in law that they are not competent to make such decisions and that somebody should make them on their behalf (usually a parent or legal guardian). This presumption can also be overturned, however, but once again the healthcare professionals must be able to justify why they have done so.

The leading case dealing with this issue was that of Gillick v West Norfolk and Wisbech Health Authority [1985] 3 All ER 402 [HL], in which it was stated that ‘the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’. This principle has been given statutory authority in Scotland by means of The Age of Legal Capacity (Scotland) Act 1991, but remains a common law principle in England and Wales.

How healthcare professionals make an assessment of competence in a child is not entirely clear, although Lord Fraser (in the Gillick case) laid down some guidelines relating to issues of contraception:

The healthcare professional must be satisfied that:

1. She understands the advice given to her.
2. She cannot be persuaded to tell her parents (or allow the healthcare professional to tell them).
3. It is likely that she will have sexual intercourse whether or not she receives contraception.
4. Her physical and/or mental health might suffer if she is refused contraception.
5. It is in her best interests to receive contraceptive treatment and advice, and this should be given without informing her parents.

In addition, the healthcare professional must satisfy him/herself that the child has fully understood the information and there needs therefore to be two-way communication to ensure that this has taken place.

Some have argued that the threshold of competence for children is much higher than that of adults, but a competent child is able to enter into a relationship of confidentiality and is entitled to expect the same rights as anybody else. A breach of confidentiality in this instance (i.e. by telling Amelie’s parents) would fundamentally destroy her trust in healthcare professionals and she would therefore be less likely to seek medical attention in the future.