Legal Update: In a Nutshell - Confidential sexual health advice

Coram Children's Legal Centre
Tuesday, July 9, 2013

All children have the right to confidential health advice, but confidentiality may be broken in certain circumstances

At what age does a child have the right to confidential sexual and reproductive health advice?
Children of all ages, including those below the age of sexual consent (16 years), have a right to receive confidential advice relating to sexual and reproductive health from health professionals.

This advice includes information about sexually transmitted infections, contraception and relationships. Such advice may be given without the presence or involvement of a parent.

Under what circumstances can confidentiality be broken?
While all children below the age of 16 have a right to confidential advice, the patient's confidentiality may be broken according to the same criteria used for adults (grave risk to health, safety, welfare of the patient or others).

When applying these criteria to children, the health professional should also take into account the best interests of the child. Whether or not these circumstances apply is up to the discretion and judgment of the individual health care provider.

Although the criteria are the same at any age, it is likely that a health professional will consider age and maturity as a factor in determining whether or not a child is at grave risk and, therefore, that confidentiality should be broken.

In the event that the health professional does decide to breach confidentiality, he or she may wish to discuss his or her concerns with the child, but should then arrange to discuss the potential disclosure with a designated child protection officer, before deciding the appropriate course of action; for example, a referral to social services or the police, who may then decide whether and at what point to inform the child's parents.

What about confidentiality in schools?
Health professionals in schools are not necessarily bound by the same guidance as health care providers in other settings.

Instead, schools may have different policies or codes of conduct relating to confidentiality, which should be followed by those working in school settings.

How is confidentiality linked to consent to treatment?
Where treatment is involved, the common law principles set out in the Fraser guidelines become relevant.

Under these principles, a health care provider may provide treatment (including, for example, contraception) to a child below the age of 16 if the child:

  • Understands the advice;
  • Cannot be persuaded to tell his or her parents;
  • Is likely to continue to engage in sexual activity;
  • If he or she does not receive the advice or treatment his or her mental health will suffer; and
  • The best interests of the child require provision of advice or treatment without parental consent.

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