Dilemmas: Treating children and young people

Dr Sonya McCullough, medicolegal adviser at Medical Protection, looks at a complex dilemma from the Medical Protection case files

Medicolegal dilemmas can cover a range of scenarios, and the following will be discussed in more detail at the Medical Protection GP conference in Dublin on 8 September. Although it is based on real Medical Protection cases, facts have been altered to preserve confidentiality.

The case

Mr O contacted his surgery in some distress, asking to speak to GP Dr Y urgently. Dr Y took the call and Mr O explained that he needed Dr Y to provide contraception for his 15-year-old daughter, Miss O. Dr Y arranged an appointment for his daughter the next day, accompanied by her father. Dr Y was concerned about the potential ramifications of providing treatment to the patient in the circumstances, and contact Medical Protection for advice.

Can you provide contraception to a patient aged 15?

The Non-Fatal Offences Against the Person Act 1997 Section 23(1) states that 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 2016¹ 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 case, Miss O has consented to her father being involved, and he has consented to the treatment and is aware of the situation. So there doesn’t appear to be an issue with prescribing Mr O’s daughter contraception, in the circumstances.

Notification requirements

However, does Dr Y have a duty to report to the Gardaí or TUSLA the fact that Miss O is under the legal age for engaging in sexual intercourse? These requirements are outlined in the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 (the “2012 Act”):

• Mandatory reporting obligation

Section 2 of the 2012 Act provides for a mandatory reporting requirement to the Gardaí regarding knowledge of crimes committed against children. Section 2 states that a person is guilty of an offence if:

• Defences

In the 2012 Act, 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 his/her view that they do not wish for the matter to be disclosed to the Gardaí. However, there is a rebuttable presumption that a child under the age of 14 does not have the capacity to form their own view. Therefore, a 15-year-old can form their own view regarding disclosure. In this case, Miss O was quite clear that she did not want any information to be disclosed to any third parties.
• 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. This can only be relied on where they are able to demonstrate 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.

  Further requirements are outlined in the Children First Act 2015 (the “2015” Act) and Children First: National Guidance for the Protection and Welfare of Children (2017):

Legislation

Section 14(1) and (2) of the 2015 Act 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 in the course of their employment.

 

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

  In this case, Miss O is 15 and her boyfriend is 16.

• 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

  Having taken a careful history, Dr Y was content that this is the case.

• The GP is satisfied that the child has not been harmed, is being harmed or is at risk of being harmed

  Again, Dr Y was comfortable that this is the case here.

• The child concerned has made known to the GP his or her view that the activity, or information relating to it, should not be disclosed to the Agency and the GP relied upon that view.

Notification requirement to TUSLA

The TUSLA guidelines focus on the legal obligations placed on mandated persons, including GPs, under the Children First Act 2015. The guidelines state that as a mandated person, under the legislation, 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 in this regard. If a GP’s concern does not reach the threshold for mandated reporting, but the GP has a “reasonable concern” about the welfare or protection of a child, they should report it to TUSLA under this guidance.

Recommendation

In relation to the 2012 Act, if Dr Y had felt that Miss O had been sexually harmed then he should alert the Gardaí. However, Dr Y made the assessment that this was not the case.

With regard to the notification requirement under the 2015 Act, the patient is between 15-years-old and 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. So provided Dr Y was satisfied that Miss O was not being harmed, and Miss O indicated that the information should not be disclosed, Dr Y was under no obligation to report to TUSLA, as per s14 (3) of the 2015 Act.  

In addition, Dr Y did not need to consider whether or not the father himself posed a risk to the child in view of the request. Having taken a very detailed history from Miss O, this was not an issue.

Find out more

This dilemma and many others will be discussed at the Medical Protection GP conference in Dublin on 8 September. With talks covering mental health and capacity, professionalism, healthcare for an aging population, and dealing with burnout and stress, it’s a great opportunity to find out how to tackle the critical issues of today.

Visit medicalprotection.org to book your place.