The legal position regarding contraceptive
advice and provision to young people
Page 1
This factsheet summarises the legal position
in Northern Ireland relating to the provision
of contraceptive advice and supplies to
young people. Particular reference is made
to the provision of contraception to under
16s without parental consent.
Key facts
• A doctor or other health professional
can provide contraceptive advice
and treatment to those under 16,
without parental consent, in certain
circumstances.
• Doctors and other health professionals
must try to obtain a young person’s
consent to involve their parents before
providing contraceptive advice or
treatment. If they are not successful,
they may proceed only if they are
satisfied on specific matters, including
the young person’s maturity and ability
to understand what is proposed.
Current legislation
Over 16s
The age of sexual and medical consent in
Northern Ireland is 16. Young people over
the age of 16 can give consent to their
own surgical, medical or dental treatment
without obtaining the consent of parents. In
cases where a young person is judged not
competent to give valid consent, then the
consent of a parent or guardian must be
sought. This power only extends until the
young person reaches the age of 18.
1
Family planning clinics treat all patients
over the age of 16 alike, whatever their
marital status or age. Patients who have
agreed to use any medical method of
contraception (ie oral contraceptives,
injections, implants, IUS, IUD) are asked
if they have any objections to their
doctor being informed. If there are none,
the GP is then not only made aware of
the prescription, but is also given the
opportunity to make known any possible
contraindications. If a patient does not
want their GP to be informed, the clinic
doctor must exercise their own judgement
in deciding whether the patient’s best
interests would be served by prescribing
a medical method, or whether another
contraceptive method should be offered (ie
condom, diaphragm, cap).
Under 16s
Parental consent is required for the
treatment of a young person under the age
of 16 unless the treatment can be justified
on the grounds of necessity, or it can be
demonstrated that the minor was capable of
giving an informed consent. GPs and family
planning doctors must use their clinical
judgement about giving treatment, but
should not breach a patient’s confidence.
It is important to note that some GPs
offer a limited contraceptive service to
young people, or to all their patients, eg
they might refuse to prescribe emergency
contraception for moral reasons.
Confidentiality and the under 16s
Historically, contraceptive advice and
treatment for under 16s was the subject
of much controversy and confusion and
led to many young people being afraid to
approach their GP about contraception,
because they feared the consultation would
not remain confidential. A British study of
the experiences of young people using three
family planning and pregnancy counselling
services found that 75% of the under 16s and
nearly 50% of the 16-19 year olds thought
GPs would tell their parents that they had
been to see them and why. The report
concluded that there is an urgent need for
appropriate services for young people.
2
Clarifying the legal position was therefore
The legal position regarding contraceptive
advice and provision to young people
Page 2
vital. Although much of the following focuses
on statutory bodies in Great Britain, it is,
except where stated, equally applicable to
Northern Ireland.
History
The original advice to healthcare
professionals was provided in Section G
of the 1974 Department of Health and
Social Security (DHSS, now Department
of Health DH) Memorandum of Guidance,
which stated that a doctor was “not acting
unlawfully provided he acts in good faith
in protecting the girl against the harmful
effects of intercourse”.
3
The Memorandum incorporated the advice
of the Medical Defence Union in the same
year:
“The Medical Defence Union have
advised that the parents of a child, of
whatever age, should not be contacted by
any staff without his or her permission,
even though as a matter of clinical
judgement the refusal of permission to
involve the parents may affect the nature
of the advice to the child. Nevertheless,
it would always be prudent to seek the
patient’s consent to tell the parents.”
In December 1980, as a result of mounting
concern regarding young people, the DHSS
reissued Section G of the Memorandum to
stress that the Department hoped that a
doctor “will always seek to persuade the
child to involve the parent or guardian”, but
that ultimately, the decision must be for
the clinical judgement of the doctor, a view
supported by FPA.
4
The wording of the revised Memorandum
made it quite clear that obtaining parental
consent was the norm and that any
departure from this practice was the
exception. However, the Department
recognised that abandoning the principle
of confidentiality for under 16s might
discourage young people from seeking
professional advice at all.
The Memorandum noted that in some
cases, such as the breakdown of family
relationships, the consequences of
withholding contraceptive advice or
treatment, for such matters as unwanted
pregnancy or sexually transmitted infections,
might be more of a threat to stable family life
than the consequences of providing it without
parental consent. The Department advised
that, in such cases, health professionals
must follow their clinical judgement.
Current legislation
The current situation stems from the House
of Lords’ ruling in the Gillick case (see below
for further details). The Law Lords ruled that:
“
A girl under 16 of sufficient understanding
and intelligence may have the legal capacity
to give valid consent to contraceptive advice
and treatment including necessary medical
examinations. Giving such advice and
treatment to a girl under 16 without parental
consent does not necessarily infringe
parental rights. Doctors giving such advice
in good faith are not committing a criminal
offence of aiding and abetting unlawful
intercourse with girls under 16.”
The Law Lords further ruled that the
doctor’s decision to give contraceptive
advice and/or treatment to underage girls
should be guided by the following points:
• The girl, although under 16, is capable
of understanding the doctor’s advice.
• She cannot be persuaded to involve her
parents.
• She is very likely to begin or continue
having sexual intercourse, with or
without contraceptive treatment.
• Her mental or physical health (or both)
is likely to suffer if contraceptive advice
or treatment is withheld.
The legal position regarding contraceptive
advice and provision to young people
Page 3
• The provision of contraceptive advice or
treatment without parental consent is
in her best interests.
The Law Lords emphasised that doctors
should not regard this as a licence to
ignore the wishes of parents. Following the
House of Lords’ decision, the DHSS issued
revised guidelines (see Appendix 1 for the
full text).
5
Further reference to children and young
people, and their consent to medical
treatment and right to confidentiality, can
be found in the Data Protection Act 1998,
the Access to Health Records (Northern
Ireland) Order 1993, the Charter for
Patients and Clients, and Services for
Children and Young People (1997).
• Data Protection Act 1998 – Under this
act, young people under 16 have the
right of access to personal information
stored on computers, providing the
data user considers the young person
capable of understanding the request.
A parent or guardian will be given
access only if the young person has
consented or is deemed to be incapable
of understanding the nature of the
request.
• Access to Health Records (Northern
Ireland) Order 1993 – This gives
individuals, including under 16s, the
right of access to recorded information
about themselves that is not already
covered by rights of access to
computerised records under the Data
Protection Act 1998 (previously the Data
Protection Act 1984). If the individual
is under 16, parents and guardians will
usually be able to see their records,
but if the child is judged capable of
understanding why parents want to
see the records, they must give their
consent. In some cases, access may
be denied, eg if it might cause serious
harm or distress to the young person or
someone else.
• The Children (Northern Ireland)
Order 1996 – This act does not change
the above legislation. It refers to the
aforementioned rights and provides
further details.
The Gillick case
Public attention was drawn to the dilemma
concerning contraception and under
16s by a protracted campaign mounted
by Mrs Victoria Gillick. Following the
publicity given to the 1980 DHSS revised
Memorandum, Mrs Gillick wrote to her
local area health authority (AHA, now
district health authority DHA) seeking an
assurance that no contraceptive advice or
treatment would be given to her daughters
without her knowledge and consent.
West Norfolk and Wisbech AHA was unable
to provide this assurance and in 1982, Mrs
Gillick sought a High Court ruling against
her AHA and the DHSS on the grounds that
the 1980 circular was unlawful and that no
AHA employee could therefore give advice
to her children without her consent.
On 25 July 1983, the High Court ruled that
the DHSS guidelines were not unlawful.
6
Mrs Gillick’s claim was dismissed on the
grounds that, by giving contraceptive advice
or treatment to patients under 16, doctors
were not aiding the crime of underage
sex and nor were they infringing parental
rights. However, in December 1984, the
Appeal Court overturned this ruling, and
Mrs Gillick’s declaration was granted with
immediate effect.
7
The case rested on the importance of
parental consent and, except for advice in
The legal position regarding contraceptive
advice and provision to young people
Page 4
an ‘emergency’ or ‘with leave of the Court’,
healthcare professionals were deemed
to be acting illegally if they provided
contraceptive advice or treatment to a
girl under 16 without the consent of her
parents. DHSS guidance was suspended,
which led to a large drop in the number
of under 16s attending family planning
clinics.
8
The DHSS appealed to the House of
Lords and in October 1985, by a three to two
majority, the House of Lords ruled that the
guidance given to doctors by the DHSS was
not unlawful.
9
Following this decision, the
DHSS guidance was reinstated immediately,
although a full review was announced to
take account of the Law Lords’ judgements
and the wide range of views expressed on
the issue. The revised guidelines, issued
on 6 March 1986, are reproduced in full in
Appendix 1.
5
The views of professional
organisations
The British Medical Association (BMA) and
the Royal College of General Practitioners
(RCGP) have continued to issue guidelines
confirming the Law Lords’ ruling and the DH
guidelines. However, the guidelines issued
by the General Medical Council (GMC) differ
slightly. A BMA publication states that when a
doctor is unable to obtain the patient’s consent
to involve parents, he must decide: “… whether
the girl has the mental maturity to understand
the possible consequences of her action. If
she has not, then her consent is not informed
and so invalid. If he is satisfied that she can
consent, he makes a clinical decision as to
whether the provision of contraception is in the
best interests of the patient. A decision not to
prescribe does not absolve him from keeping
the interview confidential.”
10
In November 1991, the GMC issued
guidelines for doctors on professional
confidence, which state: “A doctor who
decides to disclose confidential information
about an individual must be prepared to
explain and justify that decision, whatever
the circumstances of the disclosure.”
11
These guidelines replaced those issued in
1986, which stated that if a doctor did not
consider a girl under 16 sufficiently mature,
they were not legally obliged to maintain
confidentiality.
12
The GMC has been under continuous pressure
to revise its 1980 guidelines, which currently
state that, when dealing with patients who
lack sufficient understanding to appreciate
what the treatment or advice involves due
to immaturity, illness, or mental incapacity:
“If the patient cannot understand or be
persuaded, but the doctor is convinced that the
disclosure of information would be essential to
the patient’s best medical interests, the doctor
may disclose to an appropriate person or
authorities the fact of the consultation and the
information learned in it.”
References
1. Department of Health. A guide to
consent for examination or treatment.
1990, HC(90)22.
2. Allen I. Family planning and pregnancy
counselling projects for young people.
Policy Studies Institute, 1991.
3. Family Planning Services. Memorandum
of guidance. Issued with Health Service
Circular HSC(IS)32, WHSC(IS)22.
Department of Health and Social
Security, 1974.
4. Health Services Management. Family
planning services for young people.
Advance copy LASSL(81)2. Later issued
as HN(81)5. WHN(81)5 Department of
Health and Social Security, 1980.
5. Health Services Management. Family
planning services for young people,
HC(86)1, HC(FP)(86)1, LAC(86)3,
WHC(86)17, WHC(FP)(86)10, WOC(86)15.
Department of Health and Social
Security, 1986.
The legal position regarding contraceptive
advice and provision to young people
Page 5
6. Gillick v Norfolk and Wisbech AHA and
the DHSS (1985) 2 Weekly Law Reports
(England) 413.
7. Gillick v Norfolk and Wisbech AHA
and the DHSS (1984) Queen’s Bench
Reports (England) 581.
8. Health Services Management. Family
planning and abortion services for
young people, HC(84)34, HC(FP)(84)10,
LAC(84)25, WHC(84)39, WHC(FP)(84)9,
WO Circular (84)68. Department of
Health and Social Security, 1984.
9. Gillick v Norfolk and Wisbech AHA
and the DHSS (1986) Appeal Cases
(England) 112.
10. British Medical Association. Philosophy
and practice of medical ethics. BMA,
1988.
11. General Medical Council. Guidance for
doctors on professional confidence.
GMC, 1991.
12. General Medical Council. Professional
conduct and discipline. GMC, 1986.
Appendix 1
HEALTH CIRCULAR HC(86)1 LOCAL
AUTHORITY CIRCULAR HC(FP)(86)1 LAC(86)3
CONTRACEPTIVE ADVICE AND TREATMENT
FOR YOUNG PEOPLE UNDER 16
1.
The following guidance draws the
attention of health authorities and others
concerned to the considerations doctors
and other professionals need to have in
mind when providing contraceptive advice
and treatment to young people under 16,
and to the circumstances in which such
advice and treatment can be given without
parental knowledge or consent. This
guidance results from a review of that in
Section G of the Memorandum of
Guidance of the Family Planning Service,
as specified in the appendix to Health
Notice (81)5 and Local Authority
Social Services Letter (81)2 in the light
of the House of Lord’s decision in the
case of Gillick v West Norfolk and
Wisbech AHA and the DHSS delivered
last October.
2. In considering the provision of advice
or treatment on contraception doctors
and other professional staff need
to take special care not to undermine
parental responsibility and family
stability. The doctor or other
professional should therefore always
seek to persuade the young person
to tell the parents or guardian (or
other person in loco parentis), or
to let him inform them that advice
or treatment is given. It should be most
unusual for a doctor or other
professional to provide advice or
treatment in relation to contraception to
a young person under 16 without
parental knowledge or consent.
3.
Exceptionally, there will be cases where
it is not possible to persuade the young
person either to inform the parents or
to allow the doctor or other professional
to do so. This may be, for example,
where family relationships have broken
down. In such cases, a doctor or other
professional would be justified in giving
advice and treatment without parental
knowledge or consent, provided he was
satisfied:
a)
that the young person could
understand his advice and had
sufficient maturity to understand what
was involved in terms of the moral,
social and emotional implications;
b) that he could neither persuade
the young person to inform the
parents, nor to allow him to inform
them, that contraceptive advice was
being sought;
c) that the young person would be very
likely to begin, or to continue
having, sexual intercourse with or
without contraceptive treatment;
The legal position regarding contraceptive
advice and provision to young people
Page 6
d) that, without contraceptive advice or
treatment, the young person’s
physical or mental health, or both,
would be likely to suffer;
e) that the young person’s best
interests required him to give
contraceptive advice, treatment or
both without parental consent.
4. Decisions about whether to prescribe
contraception in such cases are for
a doctor’s clinical judgement. If a doctor
who is not the young person’s general
practitioner has formed the view, after
due consideration of the points made
above, that it is in the best interests
of the young person to prescribe
contraception without parental
knowledge or consent, it may be
advisable and helpful for him with the
young person’s agreement, to discuss
the matter in confidence with her own
general practitioner before making his
decision.
5. In organising contraceptive services for
young people, health authorities may
find it helpful to make separate, less
formal arrangements than those for
older age groups. The staff should be
experienced in dealing with young
people and their problems.
Other Northern Ireland
factsheets
Abortion
Relationships and sexuality education in
schools
Sex and the law
Sexual health and people with learning
disabilities
Sexual behaviour and young people
Sexual orientation
Sexually transmitted infections
Teenage pregnancy
For further information contact FPA at:
3rd Floor Ascot House
24–31 Shaftesbury Square,
Belfast BT2 7DB
Tel: 0845 122 8687
Email: belfast@fpa.org.uk
or
3rd Floor,
67 Carlisle Road,
Londonderry BT48 6JL
Tel: (028) 7126 0016
Email: derry@fpa.org.uk
© FPA, 2010. Registered Charity No.
250187.
Factsheet last updated August 2010.
Published by
Sexual Health Information
,
a partnership between FPA in Northern
Ireland and the Public Health Agency
