Therapeutic Confidentiality and the Provision of Psychological ...

Therapeutic Confidentiality and the Provision of
Psychological Counselling for Children and Young
People in the Northern Ireland Healthcare Setting
Dr Peter Jenkins, Lecturer in Counselling
Address for Correspondence: Educational Support and Inclusion Research Group,
Faculty of Education, Humanities Building, The University of Manchester, Oxford Road
Manchester UK M13 9PL Email: education.enquiries@man.ac.uk
Counselling children crucially depends on an understanding of their
specific rights to confidentiality under the law. There are a number of
conflicting approaches to the issue of children's rights (Daniels and
Jenkins, 2000) 3 : (i) the 'welfare model': children's interests are decided
by adults; (ii) the 'participatory model': children have a right to a say in
decisions about their well-being; (iii) the 'independence model': children
have rights to make their own decisions for themselves. Perhaps
confusingly, each of these distinct approaches finds some measure of
support under the law. Pastoral care in schools often works on the
welfare model based on the concept of acting in loco parentis, with the
school as substitute parent. Alternatively, sections of the Children Act
1989 confirm the rights of children to take part in decisions about their
future, as for example, in discussing whether to return home from
residential care. Finally, some aspects of the law, based on the decision
of the House of Lords in the Gillick case, stress the rights of children to
make certain decisions on their own. Thus, children under the age of 16
may have enough understanding to seek medical treatment or
contraceptive advice. The stance taken by counsellors will depend upon
which model of children's rights they support in practice. J NI Ethics Forum
2005, 2: 38-47
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Welfare approach to counselling
Under this approach, children or young people are seen largely in terms
of the responsibilities held by adults for their care and protection. In
school settings, counselling may sometimes only be provided with the full
knowledge and agreement of parents. This may have the effect of
deterring many children from approaching the counsellor in the first
place, or of making them carefully edit what they say as a result. Another
concern in school settings relates to counselling young people about
sexuality issues. This is based on restrictions on local authorities
'promoting' homosexuality under s.28 of the (recently repealed) Local
Government Act 1988. In fact, teachers' and counsellors' worries on this
issue may be unfounded. A subsequent little-publicised government
circular had clearly stated that s.28 "will not prevent the objective
discussion of homosexuality in the classroom, nor the counselling of
pupils concerned about their sexuality" (para. 20, DoE Circular 12/88).
Participatory approach:
Child care legislation since 1975 has developed the principle that
children have a right to take part in discussions about decisions affecting
their lives. This has been endorsed by s. 22 of the Children Act 1989. It is
also expressed in Article 12 of the United Nations Convention of the
Rights of the Child 1989, ratified by the UK in 1991. The Convention
recognises the need for "the views of the child being given due weight in
accordance with the age and maturity of the child." This perspective
gives counsellors greater opportunity to prioritise the therapeutic
relationship with the child, as distinct from subjecting it to the sometimes
conflicting interests of parents, or other authorities such as schools.
There may still be some instances when the counsellor may wish to
override the child's wishes. This participatory approach to children's
rights within counselling situations does not mean that the child's wishes
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will prevail. It simply requires that they must be properly heard and
acknowledged.
Independence model
A great deal of confusion and misinformation surrounds the third possible
approach to counselling children. In the key Gillick case, heard in
England, but carrying persuasive authority within Northern Ireland, it was
held that children under the age of 16 can be provided confidential
medical treatment, without first requiring parental knowledge or consent,
if the doctor decides that the child is of 'mature understanding'. According
to Lord Scarman, "parental right yields to the child's right to make his
own decisions when he reaches a sufficient understanding and
intelligence to be capable of making up his own mind on the matter
requiring decision." (Gillick [1986]). Gillick actually concerns two key
issues, the first of which is the right to consent to medical treatment
independently of parental wishes. The second, however, concerns the
right to confidentiality, which is to be maintained whether or not treatment
is provided, unless there are overriding child protection concerns. Based
on this perspective, many voluntary organisations, such as Brook
Advisory and Childline, now provide confidential counselling to the child
as the client, without first requiring parental consent.
Case law following Gillick (e.g., Re R 4 A11ER 177 [1991], Re W 4A11
ER CA 627 [1992]) may appear to have undermined the legal protection
for counsellors working with the child as client. However, these cases
primarily relate to potentially extreme and even life-threatening
circumstances. This has included the refusal by a young person to take
anti-psychotic medication, or to consent to medical treatment for
anorexia nervosa. Despite this, the key principles of Gillick remain intact
for working with the vast majority of young people under the age of 16.
The Gillick principle is central, for example, to the legal and ethical basis
of providing voluntary psychiatric care for young people under the age of
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16 (DoH/WO, 1999, para 31.6). 5 It is widely recognised and applied in
the context of providing medical and psychological services for children
in the healthcare sector 2, 11 .
Children's rights or parental rights?
Some agencies, such as Brook, base their practice firmly on their
understanding of the Gillick principle. Other agencies, particularly those
working in schools, adopt a much more cautious approach, citing the
need to work in partnership with parents, as well as with children. One
principle wheeled out to endorse this practice in a school setting is the
concept of being in loco parentis. This is an archaic piece of Victorian
case law, dating from the last century, which requires school teachers to
care for their pupils as would a 'careful father', a principle adapted by
degrees to 'careful parent' in subsequent case law. The concept carries a
strong subliminal suggestion that, in acting for parents, schools should
be mindful of parents' wishes and concerns. Offering a child-centred
counselling service for young people without specifying a need for prior
parental consent could be seen to run counter to this approach. In one
version of the argument, parents have rights as well -including a right to
family privacy and a right to be involved in decisions about their children.
Providing confidential counselling to children without parental agreement
would surely then count as a major infringement of the rights of the
parents, to say the very least, according to this view.
This argument is persuasive, but mistaken. Case law has shown that
parents do not, in fact, have a strong case in claiming an infringement of
their parental rights by organisations such as Social Services. Under the
Children Act 1989, the concept of 'parental rights' has been decisively
displaced by that of 'parental responsibility'. This is a set of powers and
duties which can be determined by the courts, and, for example, can be
acquired in this way by a key figure in a child's life, such as a
grandparent. The emphasis carried by this concept is much more on the
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duties and responsibilities involved in caring for children than on an
untrammelled notion of parental power and authority over children.
In many sectors of the law, the rights and needs of children are now
considered quite separately from the wishes and choices of their parents.
This is true in the case of child protection, family proceedings and in
complex decisions regarding medical treatment. Gillick builds on these
developments within the law in recognising that young people have a
right to confidentiality, and to consent to medical treatment,
independently of parental wishes, if they have sufficient understanding of
the issues concerned.
Review of the Mental Health Act
Yet, in the ongoing consultation over reforming the Mental Health Act
1983, the clash of professional perspectives on Gillick against wider
political priorities is all too clear. This split is revealed in the stances of
successive Green and White Papers in addressing the continuing
problem of psychiatric provision for young people. The challenging
recommendations of the Expert Committee for the consultative Green
Paper were actually to buttress the Gillick principle, rather than to sound
further retreat. The Expert Committee favoured a clear recognition of 16
as the threshold for capacity for making treatment decisions, with, more
controversially, a rebuttable presumption of children's capacity for
consent from an age as low as 10 or 12 (DoH, 1999) 4 . The Mental
Health Act Commission has also recommended that existing case law on
Gillick be given clearer legal status via statute (MHAC, 1999) 9 . This
would presumably be on the lines of Scottish legislation, such as the Age
of Legal Capacity (Scotland) Act 1991.
These innovative proposals have, unfortunately, been ducked in the
Government's response in the White Paper. It seems that their intention
is simply to hold the line on Gillick, confusing as it may be to many
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healthcare practitioners working with under 16's (DoH, 2000; Ford and
Kessel, 2001) 7 . Instead, the preferred policy focus will be on developing
age-appropriate psychiatric accommodation for young people, especially
for the seriously under-resourced 16-18 age group. This latter issue has
been correctly highlighted by successive Mental Health Act Commission
Reports as requiring urgent attention. The contradictions in wider
Government policy, however, remain unresolved on the contentious
issue of Gillick and young people's rights to confidential therapy. The
Government has a clearly stated public commitment to the 1989 UN
Convention on the Rights of the Child, with the appointment of a Minister
for Children in England. However it seems that, in the present dash to
construct an over-arching strategic reform of psychiatric care, a decisive
opportunity for introducing some joined up policy on the Gillick principle
is all too likely to be overlooked.
Northern Ireland Review of Mental Health Provision for Children and
Adolescents
In the specific context of the current review of mental healthcare
provision, there are a number of suggested developments which could
be considered, based on the model of children’s rights described above,
in terms of their rights respectively to welfare, participation and
independence. These suggestions could be linked to the detailed and
comprehensive survey of current provision in Northern Ireland
undertaken for the Children’s Law Centre (O’Rawe, 2003) 10 . The
following fairly modest proposals are all drawn from recent reviews or
reports on this issue in England and Wales, and are set out as potential
aims for the future service. (Specific sources are numbered, and appear
as a separate section in the references at the end of the article.)
Proposals for Northern Ireland Review of Mental Health Provision
for Children and Adolescents
Welfare:
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• to identify the mental healthcare needs of children and adolescents
and plan appropriate provision (1)
• to set standards and protocols for mentally ill minors detained in
adult wards (1)
• to establish agreed working and referral arrangements with CAMHS
(1)
Participation
• to make patient information available in formats accessible to
children (2)
• to set a duty to provide advocacy services (2)
Autonomy
• to bring selected parts of case law into statute (3)
- to assume a threshold of 16 for presumption of capacity (4)
- to assume a rebuttable presumption of capacity for the 10 – 16
age group (4)
Confidentiality
These proposals for change need to be underpinned by a reappraisal of
the status of confidentiality in providing mental healthcare for children
and young people, based on the Gillick principle, and the similar themes
contained within Scottish statute. Confidentiality for young people is
recognised and protected by both common law and statute, notably via
s.60 of the Data Protection Act 1998 and Article 8 of the Human Rights
Act 1998. The right of the child to confidentiality is logically distinct from
their capacity to consent to treatment if seen to be of ‘sufficient
understanding’. This means that confidentiality needs to be maintained,
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unless there are over-riding concerns about the welfare and safety of the
child concerned. Considering the needs of the child as the primary
patient or client, independently of parental concerns or claims to
involvement, will inevitably raise tensions and challenges to healthcare
practitioners, particularly where services are provided on the basis of
partnership with families. Counsellors need to be continually alert to the
potential for conflict of interests between child and parents, which will
require provision for a distinctly child-centred, rather than family-based,
service. This tension will become increasingly difficult to operate, given
the strong and mounting pressures for information sharing about children
within multi-disciplinary teams such as Child and Adolescent Mental
Health Service (CAMHS) teams.
The proliferation of information sharing mechanisms currently at work, in
terms of CAMHS, child protection teams, Connexions Services and
Youth Offending Teams, all point towards the difficulties of preserving the
client’s right to confidentiality, where the child or young person is the
focus of concern by a range of practitioners with a common professional
agenda. The right of the individual child to confidentiality needs vigilant
protection, subject to the necessary limitations of a binding statutory duty
on professional to disclose information, the client’s own disclosure made
via informed consent, and risk of significant harm to self or others.
Research carried out for the current review of the Mental Health Act
illustrates, even if only anecdotally, that parents and children have
contrary and conflicting expectations of what a ‘confidential’ counselling
service actually means. For parents, it refers to a transparent and
accessible service 8 . For children as consumers, it means protection of
sensitive confidential information from access by other parties, including
parents if necessary 1 . These conflicting expectations are not easily
reconciled. The law concerning counselling children and young people is
clearly complex. Yet it offers increased possibilities for working with the
child as the client, based on the Gillick principle. This approach demands
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of counsellors both a sound understanding of the law, and a willingness
to balance a degree of risk against their own professional accountability.
Dr Jenkins was one of the speakers at the NI Ethics Forum Annual Conference 2003 on
the topic of Mental Health Ethics. He is a co-author, with Vincent Keter and Julie Stone,
of Psychotherapy and the Law: Questions and Answers for Counsellors and Therapists.
(Whurr, 2004)
(Author’s note: This article is based on law applying in England, Wales
and Scotland, but the broad principles described here will also relate to
the law in Northern Ireland.)
References
1. Baruch, G., James, C. Report from Consultation with Users of Child
and Adolescent Mental Health Services. London: DoH, 2003.
2. British Medical Association. Consent, Rights and Choices in Health
Care for Children and Young People. London: BMA, 2001.
3. Daniels, D., Jenkins, P. Therapy with Children: Children’s Rights,
Confidentiality and the Law. London: Sage, 2000.
4. Department of Health. Reform of the Mental Health Act 1983:
Proposals for Consultation. Cm 4480. London: Stationery Office,
1999.
5. Department of Health/Welsh Office. Mental Health Act 1983: Code of
Practice. London: Stationery Office, 1999.
6. Department of Health. Reforming the Mental Health Act Part 1: The
New Legal Framework. Cm 5016. London: Stationery Office, 2000.
7. Ford, I., Kessel, A. Feeling the way: childhood mental illness and
consent to admission and treatment. British Journal of Psychiatry,
179: 384-6, 2001.
8. Lovering, K. User Views of Child and Adolescent Mental Health
Services. Exeter: University of Exeter and Cornwall Social Services
Department, 2003.
9. Mental Health Act Commission. Mental Health Act Commission: 8 th
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Biennial Report. London: Stationery Office, 1999.
10. O’Rawe, A. Children and Adolescent Mental Health Services in
Northern Ireland. Belfast: Children’s Law Centre, 2003.
11. Spender, Q., Salt, N., Dawkins, J., Kendrick, I., Hill, P. Child Mental
Health in Primary Care. Abingdon: Radcliffe Medical Press, 2001.
Sources for proposals
(1). Mental Health Act Commission. Mental Health Act Commission: 9 th
Biennial Report. London: Stationery Office, recommendations 64,
65, 66, 2001
(2). Mental Health Act Commission. Mental Health Act Commission
Response to the Draft Mental Health Bill Consultation. Nottingham:
MHAC, para 2.9, 2002.
(3). Mental Health Act Commission. Mental Health Act Commission: 8 th
Biennial Report. London: Stationery Office, para 10.80, 1999.
(4). Department of Health. Report of the Expert Committee: Review of
the Mental Health Act 1983. London: Stationery Office, paras 13.2,
13.3., 1999.
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