The Law - When to get parental consent

14th November 2008 at 00:00

How far can a school go in acting with or for a child without informing, or gaining consent from, a parent?

Commonly, these issues arise where some medical procedure is involved (eg, prescribing the morning-after pill). The issue is complex, so it is prudent to take advice each time because the circumstances of each case are crucial.

Fundamentally, though, the law that applies is the common law set of principles established in the case of Gillick v West Norfolk Health Authority - sometimes known as the Fraser rules, after Lord Fraser, who gave the leading judgment and subsequent guidance.

These principles state that a minor can give consent. There is no requirement on staff to inform parents if the child is competent to consent and asks for confidentiality as long as there is no likelihood of harm coming to the child.

There is no particular age at which a child is deemed to be competent, although over 16 may be assumed to be so unless there is evidence to the contrary. What is important is that the child must be competent to understand what is proposed. A child may be competent to decide some things, but not others. Crucially, the wisdom of the decision is not the issue; the issue is understanding.

Of course, any school should seek to persuade a child that she should discuss the matter with parents, but if the child does not wish it, or if there is a risk of harm, then the school may take the view that their confidentiality should be respected.

The burden of the decision should not be laid on junior members of staff. Each school should have an established confidentiality policy that includes a requirement to discuss the matter with senior staff and abide by their decision.

Richard Bird, Legal consultant to the Association for School and College Leaders.

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