§ Mr. Andrew TurnerTo ask the Secretary of State for Health (1) under what circumstances it is lawful for patients to be tested without their knowledge or consent; and if he will make a statement; [14127]
(2) what guidance and legislation applies to staff of accident and emergency departments on testing girls under the age of 10 years for pregnancy without their knowledge or agreement or that of their parents. [14126]
§ Ms Blears[holding answer 12 November 2001]In treating a child, the welfare of the child must be paramount. While in most circumstances we would expect a child and, where relevant, his or her parents to be involved in decisions about that child's treatment or care, in certain circumstances—for example emergencies—this may not be possible.
A range of tests would be carried out in the case of abdominal pain, intended to facilitate a diagnosis, dependent upon whether or not the health professional involved considers the test to be an appropriate medical response to the symptoms presented. Ectopic pregnancy can be life threatening. The test described does not involve any form of physical intervention as the child is asked to give samples to enable the tests, and will voluntarily agree to provide these samples. Therefore there can be no question of assault by staff. The potential of pregnancy in a very young child may raise the question of abuse which, once the child's health has been safeguarded, may require further investigation. Following the case of Gillick, the courts have held that children who have sufficient understanding and intelligence to enable them to understand fully what is involved in an intervention will also have the capacity to consent to that intervention.
946WWhile there is no English statute setting out the general principles of consent, case law ("common law") exists. The Department has published the "Reference Guide to Consent for Examination or Treatment",(March 2001) which provides guidance in this respect. This states:
A life threatening emergency may arise when consultation with either a person with parental responsibility or the court is impossible, or the persons with parental responsibility refuse consent despite such emergency treatment appearing to be in the best interests of the child. In such cases the courts have stated that doubt should be resolved in favour of the preservation of life and it will be acceptable to undertake treatment to preserve life or prevent serious damage to health".(Section 3.8.5, page 17.)In respect of adults, except in strictly defined circumstances (for example under the Mental Health Act) an adult cannot be subjected to a test which involves a physical intervention without his or her consent if the person is capable of giving it. If the person lacks capacity to consent, in England and Wales the test can be carried out if it is in the best interests of the person concerned. The law in Scotland is somewhat different.
We announced in the NHS Plan (paragraph 10.22) that we intend to ensure that good practice in consent for examination and treatment is in place in clinical and research settings, with changes to be introduced from the end of 2001. Guidance for health professionals and leaflets for patients have been produced to inform people about their rights and responsibilities earlier this year. Ministers are currently considering a model consent policy and revised consent forms for the national health service.