|
Joy Wingfield, professor of pharmacy law and
ethics at the University
of Nottingham School of Pharmacy
|
The document “Working together to safeguard children”, should
have been a triumph of joined up Government thinking: a concerted effort
by the Department of Health, the Home Office and the Department for Education
and Science to put an end to any more child abuse scandals. In 120 pages
of well meaning, detailed and rational recommendations, this document “sets
out how all the agencies and professionals should work together to promote
children’s welfare and protect them from abuse and neglect”.
Alas, its effect seems to be another example of the “law of unintended
consequences” — a common feature of legislative policy that
focuses too heavily on one objective to the exclusion of other conflicting
or confounding objectives. Add to the mix the emotional topics of paedophilia
and under-age sex and the potential to lose sight of the general in pursuit
of the particular becomes even more probable.
Joint protest
On 23 October, a collaboration of organisations representing health
professionals, teachers, youth organisations and human rights groups
issued a press
release and a joint statement protesting about the changes taking place on the ground as a result
of the national guidance in the “Working together” document.
The press release stated that “some local authorities have already
adopted protocols that require professionals to conduct personal assessments
on all under 18s believed to be in sexual relationships, to share information
about these relationships with others and to make police checks on
young people and their partners”. The press release continues: “Any
change in current levels of confidentiality could have serious consequences
for the health of young people, and for the public health.” One
can be forgiven for asking how this situation has come about, given
that the legal age of consent is 16 years of age.
Pharmacists may have come late to involvement in the subject of children’s
(in this case, adolescents) confidences but emergency hormonal contraception
and its supply to under-16-year-olds through a patient group direction
changed all that. We, too, are familiar with the 1985 English case in
which Lord Fraser made the pronouncement we now know as “Gillick
competence”. This judgment was seen as a reasonable summary of
the status of adolescents under 16 who sought contraceptive advice and
treatment without parental involvement. Since 1985, however, the truly
shocking levels of child abuse, sexual or otherwise, in our society have
tipped the balance against secrecy. Legislation on the nature of sexual
offences in 2003 sought to criminalise abhorrent practices associated
with paedophilia, child trafficking and prostitution. In the process,
lesser indiscretions such as “touching in a sexual manner” — a
term which would certainly include kissing or “petting” — became
subject to legislation. The same legislation extended protection by amending
the legal definition of a child in this context to 18 years old. Certain
defences such as valid consent were offered for relationships between
16 and 18, and indeed to under-16s, provided the relationship involved
no abuse of power by older partners or family members. Total protection
was given to under-13s, who were deemed not to be capable of giving valid
consent to sexual activity.
The inquiry into the tragic and tortured death of Victoria Climbie led
to a further body of legislation. Following detailed policy direction
in “Every
child matters”, legislation in 2004 set a duty
on local authorities to make arrangements through which key agencies
co-operate to develop safeguards from abuse of children (see PJ, 6 August,
p169). One sweeping measure included the creation of databases, holding
information on all children and young people, to support professionals
and agencies in sharing information; recognising that while individual
intelligence might signify little, collective reports might indicate
serious abuse.
The area of child health, especially sexual health, has long been a responsibility
of the DoH. Thus it focused on maintaining confidence in adolescents
that their secrets would be safe with health professionals, even when
their sexual activity was unwise or even illegal. Nevertheless there
was always a requirement for enquiry to be made as to whether the sexual
activity was the result of an abusive relationship. Where this might
be the case, the health professional was enjoined to do all he or she
could to persuade the victim to report the situation to the authorities — it
was a matter for the professional’s judgement as to when the public
interest in preventing further abuse outweighed the victim’s wish
for secrecy. The DoH took no moral stance; its goal was to encourage
young people to seek advice so as to be properly informed about the risks
of sexually transmitted infections and how to avoid unwanted pregnancy.
The Home Office deals with crime; its goal was to secure the tools to
deal with sexual activity that most of the nation found offensive and
to give the special protection it wished to afford to children. The DfES
had broader and long-term goals: to foster the potential of every child,
to eliminate the abuse of children and to take the lead in obliging public
authorities and their workforce to work together to achieve these goals.
Given the complementary but nevertheless different goals of these three
Government departments, it is perhaps not surprising that concerns have
arisen about the direction of some interpretations of the legislation.
These are now manifest in protocols adopted by local safeguarding-children
boards requiring assessment of the child protection needs of all under
18s. A DoH statement on “Working together” fudges the issue:
it reinforces confidentiality for under 16s (although it does not mention
16–18s) but states that “health professionals must take time
to explore whether each individual case might involve coercion or abuse.
Where there is cause for concern the case should be referred through
local child protection procedures”.
It is this approach that has led to the joint statement described above.
Taken to its logical conclusion does this mean that pharmacists should
ask youthful
purchasers of condoms whether their anticipated activity is mutually agreed
and non-exploitative? Less fancifully, should all young purchasers of emergency
hormonal contraception be similarly questioned? Should patient group directions
specifically permitting the supply of EHC to under-16s now make it clear the
such questions must be asked and that, in the words of one local authority
protocol, “absolute confidentiality cannot be guaranteed”? Privacy undermined
This month the Royal Pharmaceutical Society announced that it would
be running a major campaign to encourage members of the public to visit
their local pharmacies for advice
on sexual health (PJ, 5 November,
p587). Also this month, the Health Service Journal (3 November, p31)
carried a report on the use of “mystery shoppers” to find
out how easy it was for young people to access sexual health services
generally. They identified confidentiality as absolutely the main issue
governing the likelihood that a young person would seek advice. The
collaborative statement suggests that undermining the confidentiality
and privacy of a professional consultation is likely to delay the stage
at which young people seek professional advice, or cause them to misrepresent
their age and circumstances, or even deter them from asking for help
altogether. I can only agree. |
The
Pharmaceutical Journal