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CHAPTER 27: Guidance for Professionals Working with Sexually Active Young People Under the Age of 18 in Berkshire (NEW - JUNE 2010)

NOTE

This has been developed by the Pan Berkshire LSCB Policy and Procedures Sub-Group in consultation with Royal Berkshire Hospital NHS Trust.

The protocol is based on the Cumbria and Lancashire ACPC Protocol (March 2006) and the Surrey Safeguarding Children Board (September 2006), both of which were in turn developed by multi-agency groups of staff.


Contents

Introduction

  1. Background
  2. Information Sharing and Response
  3. Young People Under the age of 13
  4. Young People Between 13 and 16
  5. Young People Between 16 and 18
  6. Abuse Through Sexual Exploitation
  7. Sharing Information With Parents and Carers
  8. Review


    Appendix 1: Additional Information

    Appendix 2: Best Practice Guidance for  Doctors and Other Health Professionals

    Appendix 3: Good Practice in Providing Contraception and Sexual Health to Young People Under 16

    Appendix 4: Flowchart, Prompts for Workers and Extract from Berkshire Child Protection Procedures


Introduction

This protocol has been devised with the understanding that most young people under the age of 18 will have an interest in sex and sexual relationships.  It is designed to assist those working with children and young people to identify where these relationships may be abusive, and the children and young people may need protection or additional services.

Cases of underage sexual activity which present cause for concern are likely to raise difficult issues and should be handled particularly sensitively. (5.25 Working Together to Safeguard Children 2010 WTTSC)

A child under 13 is not legally capable of consenting to sexual activity. Any offence under the Sexual Offences Act 2003 involving a child under 13 is very serious and should be taken to indicate a risk of significant harm to the child. (5.26 WTTSC 2010)

Sexual Activity with a child under 16 is also an offence. Where it is consensual it may be less serious than if the child were under 13, but may nevertheless have serious consequences for the welfare of the young person. (5.28 WTTSC 2010).  In a majority of cases, it will not be in the best interests of the young person for criminal proceedings to be instigated against them.  The main  aim is to protect young people from abuse and exploitation, rather than to criminalise normal consensual adolescent sexual behaviour.

 The core principle is that the child's best interests must be the overriding consideration, and that positive outcomes for children and young people are maximised when agencies work together and co-ordinate their activity.

The cross-Government guidance, Information Sharing: Practitioner's Guide, provides advice on the issues of sharing confidential information, at the Information Sharing section of the Department for Education website.

 Decisions in this area need to be made by, or with the advice of, people with suitable competence in child protection work who are the named or designated child protection professionals in any service.

Any decision whether or not to share information must be properly documented. Particularly if the decision is not to share information about a sexually active young person under 13 (see Section 3.2 below).

All agencies having contact with children and young people, should develop and implement local guidance for their own staff, which complements this protocol.


1. Background

1.1

All young people, regardless of gender, or sexual orientation who are believed to be engaged in, or planning to be engaged in, sexual activity must have their needs for health education, support and/or protection assessed by the agency involved. This assessment must be carried out in accordance with information and guidance set out in;

  • Berkshire Child Protection Procedures
  • Department of Health 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. (Appendix 2)
1.2 In assessing the nature of any particular behaviour, it is essential to look at the facts of the actual relationship between those involved.  In particular assessing any imbalances of power between the individuals.
1.3

Children and young people with a disability and those with a learning disability, mental disorder or other communication difficulty are more likely to be abused and are especially at risk when they are living away from home.  If a young person has a learning disability, mental disorder or other communication difficulty, they may not be able to communicate easily to someone that they are, or have been abused, or subjected to abusive behaviour.

Staff need to be aware that the Sexual Offences Act (2003) recognises the rights of people with a mental disorder to a full life, including a sexual life. However, there is a duty to protect them from abuse and exploitation. The Act includes 3 new categories of offences to provide additional protection (Appendix 1)


1.4


Sexual Offences Act 2003

There is an imbalance of power if the young person's sexual partner is in a position of trust in relations to them e.g. teacher, youth worker, carer etc. and such a situation is likely to constitute a criminal offence under the Sexual Offences Act 2003 where the young person is under 18 years of age, or deemed a vulnerable adult.


Checklist

The following checklist should be taken into account when assessing the extent to which a child (or other children) may be suffering or at risk of suffering harm, and therefore the need to hold a strategy discussion in order to share information.  The balance of power between the individuals involved is central to assessment of risk.  And this should be considered in relation to the headings below. This list below is not exhaustive and other factors may be needed to be taken into account.


Age

  • The age of the child - sexual activity at a very young age is a strong indicator that there are risks to the welfare of the child (boy or girl) or others.
  • The level of maturity and understanding of the child.
  • The difference in age between the individuals involved


Competence

  • Whether the young person is competent to understand and consent to the sexual activity they are involved in - the level of maturity and understanding of the child or young person. See further discussion of competence below at 2.1, at Appendix 3 and at the NSPCC website.


Nature of the Relationship

  • overt aggression or power imbalance
  • coercion or bribery
  • If accompanied by an adult at the consultation, does that relationship give any cause for concern?

    Practice Guidance:
    A more accurate history will usually be gained by seeing a young person alone.

  • Whether any attempts to secure secrecy or compliance have been made by the sexual partner, beyond what would be usual in a teenage relationship.
  • Any other behaviours consistent with 'grooming' (Appendix 1)
  • The use of sex for favours e.g. exchanging sex for clothes, cds, trainers, alcohol, drugs, cigarettes etc. Young people could also have large amounts of money or other valuables which cannot be accounted for.


Pre-existing Knowledge

  • Whether the sexual partner is known by the agency as having other concerning relationships with similar young people.  Assessing this will often require checks to be made with other agencies.
  • What is known of the child or young person's living circumstances or background.
  • Familial sexual offences


Substance Misuse

  • Whether the young person's own behaviour, for example through misuse of substances, including alcohol, places them in a position where s/he is unable to make an informed choice about the activity


The Behaviour of Those Concerned

  • Whether the young person denies, minimises or accepts concerns
  • Whether the child or young person presents as anxious or withdrawn


2. Information Sharing and Response

2.1

It is considered good practice for workers to follow the Fraser guidelines when discussing personal or sexual matters with a young person under 16.  The Fraser guidelines give guidance on providing advice and treatment to young people under 16 years of age.

These hold that sexual health services can be offered without parental consent providing that;

  • The young person understands the advice that is being given
  • The young person cannot be persuaded to inform or seek support from their parents, and will not allow the worker to inform the parents that contraceptive/protection, e.g. condom advice, is being given
  • The young person is likely to begin or continue to have sexual intercourse without contraception or protection by a barrier method
  • The young person's physical or mental health is likely to suffer unless they receive contraceptive advice or treatment
  • It is in the young person's best interest to receive contraceptive/safe sex advice and treatment without parental consent
2.2

The first duty of every practitioner is to safeguard and promote the welfare of the child or young person and other children and young people.  In working with young people, it must always be made clear to them that absolute confidentiality cannot be guaranteed, and that there will be some circumstances where the needs of the young person can only be safeguarded by sharing information with others.  See:
2.3 This discussion with the young person should include asking them their thoughts, feelings and wishes.  The discussion can be useful as a means of emphasising the gravity of some situations.
2.4 On each occasion that a young person is seen by an agency, consideration should be given as to whether their circumstances have changed or further information has been given which may lead to the need for referral or re-referral.
2.5 In some cases urgent action may need to be taken to safeguard the welfare of a young person.  However, in most circumstances of concern there will need to be a process of information sharing and discussion in order to formulate an appropriate plan.
2.6 If there is a need to share information you should gain the young person's informed consent.  You should only share information without consent if the young person is at risk of suffering significant harm and if seeking consent would increase the risk of harm to the young person.
2.7 You can make it easier for young people to share information by explaining what information you would need to pass on, who you would need to share that information with and by discussing what will be likely to happen as a result of you passing information on.  Young people want and need to know what is going to happen next and professionals have a responsibility to inform and assist them with managing the consequences of their decision to share information.
2.8 There should be time for reasoned consideration to define the best way forward.  Anyone concerned about the sexual activity of a young person should initially discuss this with the person in their agency responsible for child protection.  There may then be a need for further consultation with Children's Social Care. All discussions should be recorded within each agency, giving reasons for action taken and who was spoken to.
2.9 It is important that decision making authority is designated so that practitioners are clear about their responsibilities to make decisions and their responsibility to consult with other professionals / line management.  If practitioners are uncertain about their authority, they should consult with their line manager.
2.10

If you have concerns that the young person may be at risk of sexual exploitation through prostitution, please refer to Children's Social Care immediately.  If the situation is an emergency, the local police should be contacted immediately.  Children involved in prostitution and other forms of commercial sexual exploitation should be treated primarily as the victims of abuse. Their needs require careful multi-agency assessment - See Safeguarding Children and Young People from Sexual Exploitation and Section 6 below.
2.11 If you are unsure about sharing information with children's social care it is possible to telephone social care and discuss the young person's situation to gain advice about whether it would be appropriate to make a referral.
2.12

When a referral is received by Children's Social Care, enquiries will be made of previous involvement, including whether the child or young person is subject to a Child Protection Plan.  Children's Services will make a decision about the gravity of the situation and will either undertake an Initial Assessment or will make enquiries under Section 47 of the Children Act (1989). These enquiries will involve a strategy discussion with partner agencies including the Police. This discussion should be informed by the assessment undertaken using this protocol and, in the majority of cases, may be largely for the purposes of consultation and information sharing.

In many cases, it will not be in the best interests of the young person for criminal or civil proceedings to be instigated.  However, Police and Children Services and other agencies may hold vital information that will assist in any clear assessment of risk.

Whilst the responsibility to instigate a criminal investigation rests with the police they should consider the views expressed by other agencies.  There will be less serious cases where, after discussion, it is agreed that the best interests of the child are served by a social care led intervention rather than a full police investigation.
2.13

Following any referral to Children's Social Care there may be one of these responses:

  • no further action deemed necessary
  • an initial assessment undertaken which may identify the young person as a child in need and additional services provided
  • an initial assessment undertaken which identifies the young person as a child at risk of significant harm or an immediate decision that there is a risk of significant harm.  In both cases enquiries will be made under Section 47 of the Children Act (1989) and there will be a strategy discussions and possibly a Child Protection Conference in line with LSCB Child Protection Procedures.
  • the outcome of the referral to Children's Social Care will be fed back to the referring agency in line with the standards in the LSCB Child Protection Procedures.

During this process agencies must continue to offer the service and support to the young person.  Access to Emergency Contraception, Sexual Health/GUM Services may be an urgent priority in order to avoid pregnancy or to detect/prevent sexually transmitted infections/HIV.
2.14 Any girl, or young woman, who is pregnant, must be offered specialist support and guidance by the relevant services.  These services will also be a part of the assessment of the girl's circumstances.


3. Young People Under the age of 13

3.1 Working Together to Safeguard Children (2010) makes clear that cases involving under 13 year olds who are having penetrative sex or are engaged in other intimate sexual activity are likely to involve significant harm to the child or children.  Each case should be discussed with the child protection lead for the organisation, with the presumption that the case is then reported to children's social care and that a strategy discussion is held in accordance with LSCB Child Protection Procedures. 
3.2 All cases involving under 13s should be fully documented including reasons where a decision is taken not to share information (5.26 WTTSC 2010). If exceptionally, a decision is made not to share information about a sexually active young person under 13, this must be agreed by the professional's line manager, and the relevant nominated child protection lead, and the records of such agreed decisions kept by the Nominated Child Protection Lead for audit by the LSCB.


4. Young People Between 13 and 16

4.1 Sexual activity with a child under 16 is also an offence. Where it is consensual it may be less serious than if the child were under 13, but may nevertheless have serious consequences for the welfare of the young person. (5.28 WTTSC 2010)
4.2 Consideration should be given in every case of sexual activity involving a child aged 13-15 as to whether there should be a discussion with other agencies and whether a referral should be made to Social Care. The professional should make this assessment using the considerations in 1.4 above. Within this age range, the younger the child, the stronger the presumption must be that sexual activity will be a matter of concern. Cases of concern should be discussed with the nominated child protection lead and subsequently with other agencies if required. Where confidentiality needs to be preserved, a discussion can still take place as long as it does not identify the child (directly or indirectly). (5.28 WTTSC 2010)
4.3 Where there is reasonable cause to suspect that significant harm to a child has occurred or might occur, there would be a presumption that the case is reported to Social Care and a strategy discussion should be held to discuss appropriate next steps. Again, all cases should be carefully documented including where a decision is taken not to share information. (5.28 WTTSC 2010) and the records of such agreed decisions kept by the nominated child protection lead for audit by the LSCB.


5. Young People Between 16 and 18

5.1 Sexual activity involving a 16 or 17 year old, though unlikely to involve an offence, may still involve harm or the risk of harm. Professionals should still bear in mind the considerations and processes outlined in this guidance in assessing that risk, and should share information as appropriate. It is an offence for a person to have a sexual relationship with a 16 or 17 year old if they hold a position of trust or authority in relation to them. (5.31 WTTSC 2010)


6. Abuse Through Sexual Exploitation

6.1

If there are concerns that a child or young person may be at risk of abuse through sexual exploitation (prostitution or pornography, including creating/exchanging images, grooming etc through the internet), a referral to Social Care or to the Police should be made in accordance with the LSCB Child Protection Procedures.

Children involved in prostitution and other forms of commercial sexual exploitation should be treated primarily as the victims of abuse. Their needs require careful multi-agency assessment.  See Safeguarding Children and Young People from Sexual Exploitation.
6.2 Exploitation, violence and problematic drug use is a reality for many of those involved in prostitution. Prostitution can also seriously damage the communities in which it takes place. There is also increasing concern about links with organised crime and, in particular, with drug markets and with people trafficking.
6.3 The Sex Offences Act 2003 introduced new offences for those who exploit children or adults for the purposes of prostitution or pornography. Preventing children and young people from becoming vulnerable to abuse through prostitution, and offering protection and support for all those already involved, still needs to be addressed.


7. Sharing Information With Parents and Carers

7.1 Decisions to share information with parents and carers will be taken using professional judgement, consideration of Fraser guidelines and in consultation with the Child Protection Procedures. Decisions will be based on the child' or young person's age, maturity and ability to appreciate what is involved in terms of the implications and risks to themselves. This should be coupled with the parents' and carers' ability and commitment to protect the young person. Given the responsibility that parents have for the conduct and welfare of their children, professionals should encourage the young person, at all points, to share information with their parents and carers wherever safe to do so.
7.2 This protocol is written on the understanding that those working with young people know that their first duty is to safeguard and promote welfare, and will naturally want to do as much as they can to provide a safe, accessible and confidential service within that duty.


8. Review

8.1 It is intended that this protocol will be reviewed 12 months after adoption or following changes in legislation and/or a change in national guidance.


Appendix 1: Additional Information

THE SEXUAL OFFENCES ACT 2003

The Age of Consent

The legal age for young people to consent to have sex is still 16, whether they are straight, gay or bisexual.  The aim of the law is to protect the rights and interests of young people, and make it easier to prosecute people who pressure or force others into having sex they don't want.

For the purposes of the under 13 offences, whether the child consented to the relevant risk is irrelevant.  A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.

Anyone, whatever their age, who intentionally penetrates the vagina, anus or mouth of a person under 13 years old commits "rape of a child under 13 years" (section 5). If found guilty they could be sentenced to life imprisonment.


Sexual Activity With a Child

(1) A person aged 18 or over (A) commits an offence if -

(a) he intentionally touches another person (B)
(b) the touching is sexual, and
(c) either -

(i) B is under 16 and A does not reasonably believe that B is 16 or over,
or
(ii) B is under 13

(1) A person is guilty of an offence under this section, if the touching involved

(a) penetration of B's anus or vagina with a part of A's body or anything else,
(b) the penetration of B's mouth with A's penis
(c) penetration of A's anus or vagina with a part of B's body, or
(d) penetration of A's mouth with B's penis

(Section 9 of the Act)

Causing or inciting a child to engage in sexual activity also constitutes an offence, and the same offences apply to those under 18 years, with different sentencing consideration.


Protecting People With a Mental Disorder

The act has created three new categories of offences to provide additional protection with a mental disorder.

  • The Act covers offences committed against those who, because of a profound mental disorder, lack the capacity to consent to sexual activity.
  • The Act covers offences where a person with a mental disorder is induced, threatened or deceived into sexual activity.
  • The Act makes it an offence for people providing care, assistance or services to someone in connection with a mental disorder to engage in sexual activity with that person.


Abuse of Trust

Positions of trust offences in the Act cover all children under 18, and vulnerable adults. The Act sets down specific positions of trust to which offences relate. People who are in these positions of trust will normally have power and authority in a child's life, and may have a key influence on their future. They will have regular contact with the child, and may be acting in loco parentis. The offences cover

  • Sexual activity with a child/vulnerable adult
  • Causing or inciting a child to engage in sexual activity
  • Engaging in sexual activity in the presence of a child
  • Causing a child to watch a sexual act


Sexual Grooming

Section 15 of the Sexual Offences Act 2003 makes it an offence for a person (A) aged 18 or over to meet intentionally, or to travel with the intention of meeting a child under 16 in any part of the world, if he has met or communicated with that child on at least two earlier occasions, and intends to commit a "relevant offence" against that child either at the time of the meeting or on a subsequent occasion. An offence is not committed if (A) reasonably believes the child to be 16 or over. The section is intended to cover situations where an adult (A) establishes contact with a child through for example, meetings, conversations or communications on the internet and gains the child's trust and confidence so that he can arrange to meet the child for the purpose of committing a "relevant offence" against the child.

The course of conduct prior to the meeting that triggers the offence may have an explicitly sexual content, such as (A) entering into conversations with the child about sexual acts he wants to engage him/her in when they meet, or sending images of adult pornography. However, the prior meetings or communication need not have an explicitly sexual content and could for example simply be (A) giving swimming lessons or meeting him/her incidentally through a friend. The offence will be complete either when, following the earlier communications, (A) meets the child or travels to meet the child with the intent to commit a relevant offence against the child. The intended offence does not have to take place. The evidence of (A's) intent to commit an offence may be drawn from the communications between (A) and the child before the meeting or may be drawn from other circumstances, for example if (A) travels to the meeting with ropes, condoms and lubricants. Subsection (2)(a) provides that (A's) previous meetings or communications with the child can have taken place in or across any part of the world. This would cover for example (A) emailing the child from abroad (A) and the child speaking on the telephone abroad, or (A) meeting the child abroad. The travel to the meeting itself must at least partly take place in England or Wales or Northern Ireland.


CHILDREN AND FAMILIES: SAFER FROM SEXUAL CRIME - (The Sexual Offences Act 2003)

Although the age of consent remains at 16, the law is not intended to prosecute mutually agreed teenage sexual activity between two young people of a similar age, unless it involves abuse or exploitation. Young people, including those under 13, continue to have the right to confidential advice on contraception, condoms, pregnancy and abortion.


RESPONDING TO CHILD WELFARE CONCERNS WHEN THERE IS OR MAY BE AN ALLEGED CRIME (Working Together To Safeguard Children: HM Government 2010 sections 5.19- 5.24)

5.17 Whenever LA children's social care have a case referred to them which constitutes, or may constitute, a criminal offence against a child, they should always discuss the case with the police at the earliest opportunity.
5.18 Whenever other agencies, or the LA in its other roles, encounter concerns about a child's welfare which constitute, or may constitute, a criminal offence against a child, they must always consider sharing that information with local authority children's social care or the police in order to protect the child or other children from the risk of significant harm. If a decision is taken not to share information, the reasons must be recorded.
5.19 Sharing of information in cases of concern about a child's welfare will enable professionals to consider jointly how to proceed in the best interests of the child and to safeguard children more generally (see paragraph 5.3 on Working with children about whom there are child welfare concerns).
5.20 In dealing with alleged offences involving a child victim, the police should normally work in partnership with children's social care and/or other agencies. Whilst the responsibility to instigate a criminal investigation rests with the police, they should consider the views expressed by other agencies. There will be less serious cases where, after discussion, it is agreed that the best interests of the child are served by a children's social care led intervention rather than a full police investigation.
5.21 In deciding whether there is a need to share information, professionals need to consider their legal obligations, including when they have a duty of confidentiality to the child. Where there is such a duty, the professional may lawfully share information if the child consents or if there is a public interest of sufficient force. This must be judged by the professional on the facts of each case. Where there is a clear risk of significant harm to a child, or serious harm to adults, the public interest test will almost certainly be satisfied. However, there will be other cases where practitioners will be justified in sharing some confidential information in order to make decisions on sharing further information or taking action - the information shared should be proportionate.
5.22

The child's best interests must be the overriding consideration in making any such decision including in the cases of underage sexual activity on which detailed guidance is given below. The cross-Government guidance, Information Sharing: Practitioners Guide, provides advice on these issues - see the Department for Education website. Any decision whether or not to share information must be properly documented. Decisions in this area need to be made by, or with the advice of, people with suitable competence in child protection work such as named or designated professionals or senior managers.


The following section "Allegations of harm a rising from underage sexual activity" 5.25 -5.31, are already incorporated in the protocol


ADDITIONAL REFERENCES

Further Information Available From

Abbreviations

  • LSCB Local Safeguarding Children Board
  • WTTSC Working Together to Safeguard Children (2006)


Appendix 2: Best Practice Guidance for  Doctors and Other Health Professionals

Summary

This revised guidance replaces HC (86)1/HC (FP) (86)1/LAC (86)3 which is now cancelled.

Doctors and health professionals have a duty of care and a duty of confidentiality to all patients, including under 16s.

This guidance applies to the provision of advice and treatment on contraception, sexual and reproductive health, including abortion.

Research has shown that more than a quarter of young people are sexually active before they reach 16.

Young people under 16 are the group least likely to use contraception and concern about confidentiality remains the biggest deterrent to seeking advice. Publicity about the right to confidentiality is an essential element of an effective contraception and sexual health service.

The Government's ten year Teenage Pregnancy Strategy, launched in 1999, set a goal to halve the under 18 conception rate by 2010. This is a Department for Education and Skills Public Service Agreement jointly held with the Department of Health. Progress towards meeting local under 18 conception rate reduction targets is one of the NHS Performance Indicators for Primary Care Trusts (PCT).

The contribution of PCTs to improving young people's access to contraceptive and sexual health advice is a key element of all local Teenage Pregnancy Strategies, linked to implementation of the Sexual Health and HIV Strategy, and is performance managed by Strategic Health Authorities.

The Sexual Offences Act 2003 does not affect the duty of care and confidentiality of health professionals to young people under 16.

1 Wellings, K., Nanchahal, K., Macdowall, W., McManus, S., Erens, R., et al. (2001) Sexual Behaviour in Britain: early heterosexual experience. Lancet 358: 1843-50

Action

  • PCT commissioners and clinical governance leads should bring this guidance to the attention of all health professionals responsible for the care of young people in any setting.

    All services providing contraceptive advice and treatment to young people should:
    • Produce an explicit confidentiality policy making clear that under 16s have the same right to confidentiality as adults.
    • Prominently advertise services as confidential for young people under 16, within the service and in community settings where young people meet.
  • Health professionals who do not offer contraceptive services to under 16s should ensure that arrangements are in place for them to be seen urgently elsewhere.
  • Directors of Social Services should ensure that social care professionals working with young people are aware of this guidance and the Teenage Pregnancy Unit guidance - 'Enabling young people to access contraception and sexual health information and advice: the legal and policy framework for social workers, foster carers and other social care practitioners'.


Confidentiality

The duty of confidentiality owed to a person under 16, in any setting, is the same as that owed to any other person. This is enshrined in professional codes 2.

All services providing advice and treatment on contraception, sexual and reproductive health should produce an explicit confidentiality policy which reflects this guidance and makes clear that young people under 16 have the same right to confidentiality as adults.

Confidentiality policies should be prominently advertised, in partnership with health, education, youth and community services. Designated staff should be trained to answer questions. Local arrangements should provide for people whose first language is not English or who have communication difficulties.

Employers have a duty to ensure that all staff maintain confidentiality, including the patient's registration and attendance at a service. They should also organise effective training which will help fulfil information governance requirements

Deliberate breaches of confidentiality, other than as described below, should be serious disciplinary matters. Anyone discovering such breaches of confidentiality, however minor, including an inadvertent act, should directly inform a senior member of staff (e.g. the Caldicott Guardian) who should take appropriate action.

The duty of confidentiality is not, however, absolute. Where a health professional believes that there is a risk to the health, safety or welfare of a young person or others which is so serious as to outweigh the young person's right to privacy, they should follow locally agreed child protection protocols, as outlined in Working Together to Safeguard Children5. In these circumstances, the over-riding objective must be to safeguard the young person. If considering any disclosure of information to other agencies, including the police, staff should weigh up against the young person's right to privacy the degree of current or likely harm, what any such disclosure is intended to achieve and what the potential benefits are to the young person's well-being.

Any disclosure should be justifiable according to the particular facts of the case and legal advice should be sought in cases of doubt. Except in the most exceptional of circumstances, disclosure should only take place after consulting the young person and offering to support a voluntary disclosure.

Duty of Care

Doctors and other health professionals also have a duty of care, regardless of patient age.

A doctor or health professional is able to provide contraception, sexual and reproductive health advice and treatment, without parental knowledge or consent, to a young person aged under 16, provided that:

  • She/he understands the advice provided and its implications.
  • Her/his physical or mental health would otherwise be likely to suffer and so provision of advice or treatment is in their best interest.

However, even if a decision is taken not to provide treatment, the duty of confidentiality applies, unless there are exceptional circumstances as referred to above.

The personal beliefs of a practitioner should not prejudice the care offered to a young person. Any health professional who is not prepared to offer a confidential contraceptive service to young people must make alternative arrangements for them.

Copies can be obtained from:

Department of Health,
PO Box 777,
London
SE1 6XH.

See also:


Appendix 3: Good Practice in Providing Contraception and Sexual Health to Young People Under 16

It is considered good practice for doctors and other health professionals to consider the following issues when providing advice or treatment to young people under 16 on contraception, sexual and reproductive health.

If a request for contraception is made, doctors and other health professionals should establish rapport and give a young person support and time to make an informed choice by discussing:

  • The emotional and physical implications of sexual activity, including the risks of pregnancy and sexually transmitted infections.
  • Whether the relationship is mutually agreed and whether there may be coercion or abuse.
  • The benefits of informing their GP and the case for discussion with a parent or carer. Any refusal should be respected. In the case of abortion, where the young woman is competent to consent but cannot be persuaded to involve a parent, every effort should be made to help them find another adult to provide support, for example another family member or specialist youth worker.
  • Any additional counselling or support needs.

Additionally, it is considered good practice for doctors and other health professionals to follow the criteria outlined by Lord Fraser in 1985, in the House of Lords' ruling in the case of Victoria Gillick v West Norfolk and Wisbech Health Authority and Department of Health and Social Security. These are commonly known as the Fraser

Guidelines:

  • the young person understands the health professional's advice;
  • the health professional cannot persuade the young person to inform his or her parents or allow the doctor to inform the parents that he or she is seeking contraceptive advice;
  • the young person is very likely to begin or continue having intercourse with or without contraceptive treatment;
  • unless he or she receives contraceptive advice or treatment, the young person's physical or mental health or both are likely to suffer;
  • the young person's best interests require the health professional to give contraceptive advice, treatment or both without parental consent.

Sexual Offences Act 2003

The Sexual Offences Act 2003 does not affect the ability of health professionals and others working with young people to provide confidential advice or treatment on contraception, sexual and reproductive health to young people under 16.

The Act states that, a person is not guilty of aiding, abetting or counselling a sexual offence against a child where they are acting for the purpose of:

  • protecting a child from pregnancy or sexually transmitted infection
  • protecting the physical safety of a child,
  • promoting  child's emotional well-being by the giving of advice.

In all cases, the person must not be causing or encouraging the commission of an offence or a child's participation in it. Nor must the person be acting for the purpose of obtaining sexual gratification.

This exception, in statute, covers not only health professionals, but anyone who acts to protect a child, for example teachers, Connexions Personal Advisers, youth workers, social care practitioners and parents.


Appendix 4: Flowchart, Prompts for Workers and Extract from Berkshire Child Protection Procedures


Guidance Notes to Accompany the Flowchart for Professionals Working With Sexually Active Under 18's

This Note, the Flowchart and Prompts for Workers are one aspect of GUIDANCE FOR PROFESSIONALS WORKING WITH SEXUALLY ACTIVE YOUNG PEOPLE UNDER THE AGE OF 18 IN BERKSHIRE 


INTRODUCTION

  1. This process applies to any contact in Berkshire with a health professional, youth worker, Connexions advisor and voluntary agency worker, with someone who is sexually active and under 18, including requests in non-NHS settings for emergency contraception; chlamydia screening or repeat issuing of condoms. It does not apply to condom distribution campaigns where there is no one-to-one consultation, nor does it apply to the sale of condoms.
  2. The Note and Flow Chart have been put together by a wide range of statutory agencies (education, health and police), and partners in the voluntary and community sectors.  It is aimed at providing staff with guidance on how contact with sexually active under 18s should be managed.  Its use MUST be in conjunction with local Child Protection Procedures.
  3. In designing the flow chart, the agencies are clear that at the centre of our contact with the young person is their health and well-being. We have a duty to ensure that we work together to minimise risks to potentially vulnerable young people and in so doing, we must respect an individual's legal rights to privacy and confidentiality

THE PROCESS

  1. The decision making process must consider the relationship between the professional and the young person, and seek to build trust as far as possible. The amount of information that will be forthcoming will vary from one setting to another, and will be affected by whether the professional has any prior knowledge of the young person. Therefore,  a pharmacist issuing emergency contraception as a one-off will probably only gain some of the answers to the questions or prompts the guidance proposes.  As a result, the threshold for discussions with a designated staff, social services, or the police, may be lower than for a GP who is more confident they will see the young person again.
  2. Some of the answers to these questions may be gained over the course of several consultations. It is up to the professional to use their judgement as to how much information they can seek each time.
  3. Where a professional worker expects to discuss a case with Named/Designated staff, and/or also with the line manager, or to have an informal conversation outside the NHS thus breaching confidentiality, then this should be done in consultation with the young person - see Section 2 above.
  4. Where a criminal offence against a child is suspected, advice should be sought from the police at the earliest opportunity to safeguard the child and minimise the risk of any evidence, such as e-mails or pictures, being destroyed before they can begin their investigation. All staff must be aware that the police must formally record contact made by an agency.  An incident will be recorded as a crime where on the balance of probability an offence defined by law has been committed and there is no evidence to the contrary.
  5. Any referral or potential referral should be discussed in the first instance with the young person. The organisation making the referral then has a Duty of Care to the individual to secure their physical and mental well-being and offer support during that time.
  6. In law, children under 13 are deemed to be unable to give informed consent to sexual activity, so professionals working with such children need to ensure that they have taken all reasonable steps to protect the child's welfare and prevent them from harm, and that they have operated within the guidance issued by their organisation.
  7. The degree of competence of a young person needs to be assessed on an individual basis and documented. This will vary with age, maturity and with the implications of the treatment or advice they are seeking. Young people under sixteen who are competent can consent to treatment.  A child or young person can say they wish to withhold consent to their information being shared with another agency. A professional, however, may override this if they are of the firm view that not to do so may jeopardise the safety and welfare of the child or young person.
  8. Throughout the process it will be important to remember the perpetrator of abuse might be: the patient; male or female; of the same sex; in a caring role for the individual. Similarly not all abuse is recognised as such by the victim at the time, and this is notably the case where a young person is being groomed.
  9. In accordance with Working Together to Safeguard Children, the professional, in discussion with their manager and the lead professional for child protection, is responsible for deciding when a referral to Children's Social Care is or is not made. Where there is any uncertainty and a referral is not made, the reasons and rationale must be documented in the young person's notes at the time, and for all under 13s this must be recorded because the law treats them as unable to give informed consent to sex.
  10. Wherever possible, informal discussions should be carried out in such a way as not to breach confidentiality.
  11. Initiating a Child Protection Procedure may involve discussion with a Named/Designated Doctor or Nurse. Where a Youth Worker, Connexions advisor or any other professional is working in a sexual health service for young people, the arrangements for confidentiality, responsibility and reporting arrangements in respect of child protection procedures MUST be clarified in advance. This must be part of induction and on-going training.
  12. Each agency must recognise that they only hold some pieces of the "jigsaw". For example, professionals would not routinely have access to the Sex Offenders register, the list of children subject to a Child Protection Plan, or to wider multi-agency intelligence about a young person, their partner, or their family, without a referral to children's social care.
  13. It is important to recognise that any information passed to Social Services, even in confidence, can be released by a Court Order by a judge in the Family Court. The same does not apply to the Police, who are entitled to withhold information under Public Interest Immunity. This should be considered when disclosing any information that could later put a patient or informant at risk.



Flowchart for Professionals Working With Sexually Active Under 18s 

This Flowchart, the Guidance Notes and Prompts for Workers are one aspect of GUIDANCE FOR PROFESSIONALS WORKING WITH SEXUALLY ACTIVE YOUNG PEOPLE UNDER THE AGE OF 18 IN BERKSHIRE 

Click here to view the flowchart.



Prompts for Workers / Professional Coming Into Contact With Sexually Active Under 18s

To only be used in conjunction with Guidance Notes and Flowchart, the Berkshire LSCB Child Protection Procedures and relevant child protection guidance issued by your organisation.


Context: General
(Reasonable level of Trust established with the young person, you have confidence that the young person will be either returning to you for support/treatment, or that you can maintain contact with the young person after the face to face contact has ended)
  For all children and young people under 18 In addition for those under 16
Initial prompts for workers
  • Personal Information
  • Health, social and sexual health history
  • Do they understand the concept of informed consent?
  • Is there informed consent between partners?
  • In seeing the young person, is there anything untoward that gives you cause for concern?
  • Are they Fraser competent?
Issues to clarify if uncertain or concerned
  • Who does the young person live with, is this a risk?
  • Is there any concern about lifestyle issues (e.g. domestic abuse, substance or alcohol abuse etc.)
  • Is there any sign of alcohol or substance misuse relating to the sexual activity?
  • Is the young person telling you information that you know to be false because of prior knowledge?
  • Are they still in touch with their peers?
  • Does the young person or their partner have a Social Worker or a Connexions Personal Advisor?
  • Is the other partner present? If so, try to see the young person on their own.
  • If not, are they willing to give details of their partner?
  • Any age differential?
  • The relationship (e.g. family, or Position of Trust, such as teacher, youth worker etc.)
  • Is there any evidence of coercion? What makes it coercive?
  • Any evidence of gifts being used as an incentive to secure consent or secrecy?
  • Any evidence of violence, threats, or attempts to gain secrecy?
  • Any evidence of self-harm?
  • Where did/do they meet? (e.g. internet)

Is the young person attending school?

 

If they are under 13, or if you have concerns re a young person 13-16, you must ensure that you have discussed with your Child Protection lead / Named / Designated Person. If exceptionally, you decide not to share information about a sexually active young person under 13, your decision must be agreed by your line manager, and the relevant Nominated Child Protection Lead, and the records of such agreed decisions kept by the Nominated Child Protection Lead for audit by the LSCB.

Context: Opportunistic
(No significant trust established)
Likely to be a one-off contact with young person, or where you are uncertain if you will see them again Initial prompts for workers
Initial prompts for workers
  • Personal Information
  • Maturity of the young person for their age
Issues to clarify if uncertain or concerned
  • Are they Fraser competent?
  • In seeing the young person, is there anything untoward that gives you cause for concern (including their age) ?
  • Are any peers present?
  • Are they willing to give personal details?
  • Do they understand the concept of consent?
  • Lifestyle issues (e.g. domestic abuse, drug or alcohol abuse etc.)
  • Does the young person or their partner have a Social Worker or a Connexions Personal Advisor?
  • Is there any sign of alcohol or substance misuse relating to the sexual activity?
  • Any evidence of violence, threats, bribery or attempts to gain secrecy?
  • Is there anything else leading to a risk of significant harm?
  • Any evidence of self-harm?

End