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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 41
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 42
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