For years now newspapers have been reporting that girls as young as 12 are being given contraceptive implants without parental consent. In April, an article in the Daily Mail reported that more than 10,500 underage girls had been given the implants on the NHS in the past two years, quoting statistics from NHS Digital.
These implants – which are put in the upper arm and release the hormone progesterone to prevent an egg being released – are an effective contraception if used in accordance with proper guidance. Though they will not protect against sexually transmitted diseases, the implants are intended to reduce the UK’s high teenage pregnancy rate (18,076 babies were born to mothers under 18 in 2016).
All teenagers are able to access a variety of NHS sexual health services to discuss and receive contraception. While contraceptive implants are often given by doctors and nurses, in some instances the implants are inserted at school by trained healthcare professionals after an initial consultation with the child, but without parental awareness or agreement. This practice is based on the principles of patient consent and confidentiality.
This has the potential to result in legal challenges, but only if the specific guidance set out in UK court judgements is not adhered to. Ultimately, if harm is caused to a patient and adequate consent has not been given by a patient this could lead to an allegation of negligence.
The law on teenage consent
Guidance on the law of obtaining informed consent applies to children under 16 years is based on two judgements: the 1986 case of Gillick v West Norfolk and Wisbech Area Health Authority, and the more recent case of Montgomery v Lanarkshire Health Board (2015).
Gillick’s case was heard by the House of Lords, which decided that provided a child under 16-years-old was assessed as “Gillick competent” then they were entitled to agree to medical treatment (in this instance contraception) without parental knowledge or agreement. This has since been extended and is now widely accepted in all aspects of child consent matters.
There is no specific age for a child to be deemed Gillick competent and it is possible for a child to be competent to agree to one procedure but not another. But a child’s consent has to take into account their age, their level of understanding, the circumstances in which they are in, and the relevant procedure being discussed. If a child is unable to demonstrate full understanding of the procedure any consent given would be deemed invalid.
Competence and consent
This raises the issue of how much information should be provided to patients so that they can weigh up benefits and risks. In Montgomery, the Supreme Court held that patients should be advised of “material risks”. This was defined by Lords Kerr and Reed as whether “a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it”.
Looking specifically at the practice of providing contraceptive implants in schools – and complying with the law described above – there are a number of important issues. First, it is likely that, unlike a GP who has known a child for several years, healthcare professionals will have a very limited knowledge of the patient. Equally, having a short consultation to discuss this sensitive and invasive procedure may not be enough to establish Gillick competence. It is vital that children seeking contraception are given all the relevant information prior to the procedure taking place, and that they have time to independently research and reflect on whether they actually want the implant inserted.
They should also be given the name of an appropriate person to contact so they can discuss the implications and weigh up the benefits and risks of the procedure. However, if a healthcare professional is only providing an NHS leaflet or web link, then the amount of information can be overwhelming for a child to take and understand by themselves.
The legal approach here is a crude attempt to reduce teenage pregnancy. But not all girls and women take contraception just to reduce the chances of getting pregnant, many take the pill to regulate their periods, for example. In fact, many girls under the age of 16 may not yet have considered engaging in sexual activity. And in some instances – especially those at the lower end of the age limit – will not yet be in a regular menstrual cycle.
The issue is not that implants should not be fitted, but that they should be fitted in accordance with young women and girls having been given information and advice on the procedure, which then allows them to give adequate time and thought so that they can then decide whether or not to give an informed consent which ultimately should be respected.