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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).