Download Date: Thu, 26 Oct 2006 09:06:34 -0400

Date:
Thu, 26 Oct 2006 09:06:34 -0400
From: "REPROHEALTHLAW-L : Reproductive and Sexual Health Law
Subject: [RHLAW] Axon case: Confidentiality for Adolescents
Many thanks to Joanna Erdman, Co-Director of the International Reproductive and
Sexual Health Law Programme for submitting this original case comment:
Confidentiality owed to Adolescents: Axon v. Secretary of State, 2006
R. (on the application of Axon) v. Secretary of State for Health & Another [2006]
E.W.H.C. 37 (Admin)
In January 2006, the High Court of Justice of England and Wales affirmed that health
professionals are obligated to protect the confidence of patients under the age of 16
regarding advice and/or treatment on contraception, sexually transmitted illnesses (STIs)
and abortion.
In 2004, the UK Department of Health issued “Best Practice Guidance for Doctors and
other Health Professionals on the provision of Advice and Treatment to Young People
under 16 on Contraception, Sexual and Reproductive Health.”
The Guidance states that mature minors are owed the same duty of confidentiality as that
owed to any person. While it is good practice for health professionals to seek to persuade
an adolescent who is competent to consent to treatment to inform his or her parents or to
allow the health professional to do so, disclosure is permissible only in exceptional
circumstances.
Sue Axon, a mother with two female children then under the age of 16, petitioned the
Court for a declaration that the 2004 Guidance was unlawful. She claimed that even
where a person under the age of 16 can legally consent to treatment, a health professional
is under no duty of confidentiality regarding advice and/or treatment on sexual matters.
Rather health professionals must disclose such information to parents unless doing so
would prejudice the minor’s physical or mental health.
Axon argued that a full and unlimited duty of confidentiality renders it impossible for
parents to fulfill their responsibilities to ensure the health and well-being of their
children. Legally sanctioned secrecy between children and parents destroys rather than
promotes family life. For this reason, Axon claimed that the 2004 Guidance failed to give
“practical and effective protection” to her right for respect to family life under Article
8(1) of the European Convention on Human Rights (ECHR).
While accepting the importance of family life, the Court dismissed Axon’s claim.
The Court held that a limited duty of confidentiality contradicts the authority of Gillick v.
West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402. In Gillick, a
majority of the House of Lords held that health professionals can lawfully provide
contraceptive advice and/or treatment to a girl under the age of sixteen without parental
consent provided she understands fully the nature and implications of the advice and
proposed treatment. In Axon, the Court reasoned that a logical relationship exists between
the legal capacity of a minor to consent to medical treatment and his or her right to do so
in privacy.
The Court further reasoned that a duty of parental disclosure is inconsistent with “the
keener appreciation of the autonomy of the child and the child’s consequential right to
participate in decision-making processes that fundamentally affect his family life”
evidenced in the ECHR and the Convention on the Rights of the Child. Human rights law
supports a high duty of confidentiality to competent young persons which should not be
overridden except for very powerful reasons. No such reasons applied in this case. On the
contrary, the Court recognized that a failure to guarantee confidentiality would likely
deter young persons from seeking advice or treatment on sexual matters. Strong public
policy reasons militated against parental disclosure.
The Court also denied Axon’s claim under the ECHR. The 2004 Guidance did not engage
her right to respect for family life. Rather, as in the common law, the parental right to
notification ceases once a young person is capable of making his or her own decisions.
Moreover, even if Article 8(1) was infringed, the Court held that ensuring adolescents’
access to reproductive and sexual health care justifies interference with parents’ right to
respect for family life.
The decision of the High Court of Justice was not appealed.
Full judgment: http://www.bailii.org/ew/cases/EWHC/Admin/2006/37.html
2004 Best Practice Guidance:
http://www.dh.gov.uk/assetRoot/04/08/69/14/04086914.pdf
See also: J. Bridgman, “Young People and Sexual Health: Whose Rights? Whose
Responsibilities?” Medical Law Review (2006).