Author: Elizabeth Herrieven / Editor: Charlotte Davies / Codes: CC17, CC18, CC19, MHP5, PhC1, PhP1, SaC3, SaP1, SLO12, SLO5, SLO7, SLO8 / Published: 12/03/2019
It’s Friday evening and you’re at work in the ED (where else would you rather be??). Jack is a 15 year old boy who has taken an overdose of paracetamol a couple of hours ago. He texted his girlfriend soon after and she called an ambulance. He lives with his mum, but she’s working a night shift at Asda. He doesn’t want her to know he’s here. He’s in the department alone but seems ok talking to you and the nursing team about what has happened. He has been low for a while but has never attempted to hurt himself before. He hadn’t really planned to overdose tonight, but things came to a head after an argument with his girlfriend and, so, here he is. Despite your best efforts, plus the efforts of the most persuasive nurse in the department, he really doesn’t want his mum to know he’s here.
So…What do you do? He’s 15. You need an adult right?? We should just call his mum?
Actually, no. The same duties of confidentiality apply when using, sharing or disclosing information about children and young people as about adults. So far, Jack has been happy to come to the ED and talk to you. So long as he is happy to consent to treatment (we’ll talk capacity in a moment) then if he refuses to tell his mum he’s here, we have to respect that. We need to ensure he understands the implications of not telling her and should certainly spend some time exploring his reasons for not wanting her to know, but respecting his right to confidentiality is key to maintaining his trust in healthcare professionals. We need him to know we are on his side, so long as his decisions are made in his best interests.
The GMC has clear guidance on this.
Some of the trickier issues around confidentiality, including knife crime, communicable diseases, and responding to criticism in the media are dealt with here.
Your Trust’s Caldicott Guardian can also help if the decision about whether or not to disclose confidential information is not clear. All NHS organisations must have a Caldicott Guardian, who is a senior person responsible for protecting the confidentiality of people’s health and care information and making sure it is used properly.
Ok, so we’re not calling his mum, but can he, at 15, consent to investigations and treatment? He’s a child. Actually, everyone under 18 is a child, according to the law in England, Wales and Northern Ireland (people grow up quicker in Scotland and become adults at 16). Despite still being considered children in most of the UK, 16 year olds are presumed to be able to consent to their own medical treatment. Children under the age of 16 must show that they are “Gillick Competent” in order to be able to give their own consent. We have to be sure they have sufficient intelligence and understanding to fully take on board what we are proposing. That sounds straightforward enough on paper, but what does it mean in real life?
Practically, it’s useful to think of the tests we use to assess capacity in adults, as per the Mental Capacity Act of 2005 (although the Act itself does not apply to people under 16):
• Can the person understand the decision to be made and the information provided about the decision?
• Can the person retain that information for long enough to make the decision? (notes and leaflets can be used to help)
• Can the person weigh up the pros and cons of making the decision?
• Can the person communicate their decision, given help if needed?
These things are all decision-specific. A young person might be able to make one decision, but not be competent to make a more difficult one. More on Gillick competence and the associated Fraser guidelines (which relate specifically to contraceptive or sexual health advice and treatment) here and more on assessing mental capacity here https://www.medicalprotection.org/uk/articles/assessing-capacity and here.
So, you’ve had a chat with Jack. He understands the implications of the paracetamol overdose and knows he needs blood tests and possibly treatment. He also agrees to a mental health referral. All good so far!
But what if he’d said no? He understands the implications of not having treatment, can explain to you what will happen to him if he gets liver failure, but still says he doesn’t want treatment. In these cases the courts have said that children and young people do not have the right to refuse treatment if this would put their health in serious jeopardy. In England, Wales and Northern Ireland, this is true for all those under 18. Someone with parental responsibility can override the child’s refusal of treatment, as can the Court of Protection. Taking a case to court, of course, would take some time, so a pragmatic approach is the best. Talk to the young person, find out why they are refusing, bring in people they trust to talk to them. Passing the decision to their parent sounds great, and is legally OK, but can cause a lot of problems within the family, so is not as easy as it sounds. Involve the ED consultant (unless that’s you!!), the hospital legal team and your medical defence organisation.
In Scotland, things are trickier. It’s likely that neither parents nor the courts are entitled to override a competent young person’s decision, but this has not yet been challenged. Get legal advice early and do your best at communicating the risks and benefits of the possible decisions to the young person. More here.
This is another useful resource, wherever you are in the UK.
What if we thought Jack wasn’t Gillick competent? The law is pretty clear here, at least. Someone with parental responsibility is needed to consent for him, unless it’s an emergency – then we can act in his best interests. Our situation isn’t an emergency, we have some time, so we would need to contact someone with parental responsibility to consent to treatment on his behalf. Which begs the question…who has parental responsibility?
Not all parents have parental responsibility. For children born after 1 December 2003 (England and Wales), 15 April 2002 (Northern Ireland) and 4 May 2006 (Scotland), both of a child’s biological parents have parental responsibility if they are registered on a child’s birth certificate. For children born before these dates, both of a child’s biological parents will only automatically acquire parental responsibility if they were married at the time of the child’s conception or at some time thereafter. If the parents have never been married, only the mother automatically has parental responsibility, but the father may acquire that status by order or agreement. Neither parent loses parental responsibility on divorce.
Others with parental responsibility include legally appointed guardians, a person with a residence order concerning the child, the local authority designated to care for the child or the local authority or person with an emergency protection order for the child.
Still with me??
So, Jack is Gillick competent, has consented to treatment and is thinking about letting his mum know, but wants some time. Off you go to order his blood tests and phone the mental health team.
Meanwhile, Jack’s mate from school has turned up, laughed at him and convinced him to leave and spend the night at his house instead.
What are you going to do now?
Remember that confidentiality issue earlier? We need to respect Jack’s right to confidentiality, if it’s in his best interests to do so. It is now in Jack’s best interests for us to break that confidentiality so we can ensure he gets the support, care and treatment he needs. Your hospital will likely have a policy around patients who leave the department without treatment too, so we have a few things we need to do.
You need to call security. They can search (physically or via CCTV) for Jack on the hospital grounds. Make a note, whilst you can still remember, of what Jack looks like and what he’s wearing. Did Jack leave a phone number when he booked in? You could call him. You should also call his mum. She needs to know now. The police should also be involved and a safeguarding referral must be made.
Here’s RCEM’s position on patients who abscond.
Turns out Jack’s mum has been trying to get some help for him for a while and is worried sick when you call her. She and the police track him down at his friend’s house and he’s brought back to the department. His paracetamol level is actually OK and the hospital mental health team refer him on to CAMHS for follow up.
This is not a “real” case, but is close enough to so many situations we encounter in the ED every day. Things are not always straightforward and all the rules and layers of guidance can seem baffling. However, an answer can usually be found and, if not, then a (senior) colleague, your hospital legal team, the Caldicott guardian or your medical defence organisation can be invaluable. Plus don’t forget many issues can be resolved with good old communication.