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Informed Consent At the outset, we feel that we should make ARCH's position absolutely clear. There is nothing wrong with a child or young person seeking genuinely confidential help from a competent counsellor, priest, social or youth worker without the knowledge of his/her parents. Far from it: there are times in all our lives, whether we are 9 or 90, when we can benefit from the support and help of a compassionate person who is outside our everyday lives. What matters is that any discussions a young person has are entirely between him/herself and the trusted adult; that the young person has chosen both to ask for help and the subjects that s/he will broach; that the adult has absolutely no other agenda than the emotional and physical well-being of the young person, and that the young person knows that s/he is in complete control and can simply walk away at any time s/he chooses. We do not believe that all of these criteria are met by the Connexions Service; in some cases none of them is met. In such circumstances, the fact that parents, the overwhelming majority of whom take their child's well-being very seriously, can so easily be excluded from the Connexions process both alarms us, and causes us to wonder exactly why this might be. According to Connexions, a young person under 16 or their parents must consent to allow the collection, storage and sharing of the young person's personal information. In the Connexions service it would seem that the norm, rather than the justified exception as has been customary, is for the first approach for consent to be made to the young person. Personal Advisers are not required or indeed advised to consult parents. Rather, they are told to assess whether they believe that a young person can give 'informed consent'. If so, the diploma training material states that parents need not be consulted: Personal advisers need to be aware that the age of the young person is not the deciding factor in whether they are able to consent to service provision and that the most important factor is the young person's understanding of what is being proposed to them. Young people are able to consent to the provision of services through Connexions as long as they understand what they are consenting to. This seems to ARCH to be wrong as a principle of law and therefore open to challenge either by the young person whose consent has purportedly been given or by their parents. The common law position is that only parents can give a valid consent on behalf of their underage children. The concept of 'informed consent' has been developed to deal with the position where there is a conflict of interest between the wishes of a young person and of their parents and there is a need to determine whose will should take precedence. Typically this occurs where the young person wishes to be advised about medical treatment, either without the knowledge, or against the wishes, of their parents. This position was considered by the House of Lords in 1985 in Gillick v West Norfolk and Wisbech Area Health Authority. The Lords decided that with regard to medical treatment a child under 16 could give informed consent 'if and when the child achieves sufficient understanding and intelligence to enable him to understand fully what is proposed'. This test, known as "Gillick competence", still prevails, although it is a complex area which has provoked legal debate ever since. Later case law has held that what must be considered is the level of understanding of a particular child in relation to the particular treatment proposed; on occasion 17 year olds have been found insufficiently competent, while much younger children have been accepted to be 'Gillick competent' and able to take important decisions for themselves. Where there is no such sort of conflict between the wishes of parents and their children, the position is that consent can only be given for an underage child by their parents. The idea that a young person could, or would, be asked to give a valid consent to undertake any risk attendant upon, for example, a canoeing trip, would be risible, whether or not they were regarded as Gillick competent. There is simply no need to consider their capacity at all. It is a matter for their parents to decide. A school that did not abide by this would be rightly criticised. Why should the position be any different for consent to the obtaining and storage of personal and sometimes sensitive material directly from young persons? It should require the consent of their parents unless exceptionally there is a conflict of interest. Is it perhaps indicative that the issue of consent is treated as if there were a conflict of interest between a young person and their parent, which could only be resolved by assessing whether the young person themselves can consent. Nowhere is there more clearly demonstrated the undermining, and assumption by PAs, of the role of parents whose function is referred to in a Connexions training document as nothing more than a 'resource'. Even where it would be appropriate for a PA to consider whether a young person had capacity to consent, it is debatable whether the conditions set down in Gillick are met. Not only does each individual young person have to be assessed to see if they are able to give informed consent they have "to understand fully what is proposed." It seems to ARCH that the situation in which a young person is asked to consent to the collection and sharing of Connexions information is entirely different from the situation in a doctor's surgery. When considering medical treatment, a young person has available a completely neutral source of advice in the doctor(s) presenting treatment options, whereas a Connexions PA is employed by the Connexions Service, which is founded on the basis of information sharing. However carefully a PA may approach the matter s/he cannot be said to be independent. The whole impetus in Connexions is the collection and sharing of information, with the PA acting as a switching post between agencies. |