The Fraser Guidelines - Sex and the Law

Adults, defined as people over the age of 18, are usually regarded as competent to decide their own treatment. The Family Law Reform Act 1969 also gives the right to consent to treatment to anyone aged 16 to 18.

Young people under the age of 16 can consent to medical treatment if they have sufficient maturity and judgement to enable them fully to understand what is proposed. This was clarified in England and Wales by the House of Lords in the case of Gillick vs West Norfolk and Wisbech AHA & DHSS in 1985.

Similar provision is made in Scotland by The Age of Legal Capacity (Scotland) Act 1991. In Northern Ireland, although separate legislation applies, the then Department of Health and Social Services Northern Ireland stated that there was no reason to suppose that the House of Lords' decision would not be followed by the Northern Ireland Courts.

Although it is an offence for a man to have sex with a girl under 16 (17 in Northern Ireland) it is lawful for doctors to provide contraceptive advice and treatment without parental consent providing certain criteria are met. These criteria, known as the Fraser Guidelines, were laid down by Lord Fraser in the House of Lords' case and require the professional to be satisfied that:

• The young person will understand the advice
• The young person cannot be persuaded to tell his or her parents or allow the doctor to tell them that they are seeking contraceptive advice
• The young person is likely to begin or continue having unprotected sex with or without contraceptive treatment
• The young person’s physical or mental health is likely to suffer unless he or she receives contraceptive advice or treatment

Although these criteria specifically refer to contraception, the principles are deemed to apply to other treatments, including abortion.

The above guidelines applies to health professionals only, however the Sexual Offences Act 2003 made provisions for non-health professionals. A person does not commit an offence if he/she acts for the purpose of:

• Protecting the young person from a sexually transmitted infection, or
• Protecting the physical safety of the young person, or
• Preventing the young person form becoming pregnant, or
• Promoting the young person’s emotional well being by giving the advice
• As long as they do not act for the purpose of causing or encouraging under age sexual activity.

This covers not only health professionals but anyone who acts to protect a child eg. Teachers, connexions PA, youth workers.

Young people under the age of 16 have as great a right to confidentiality as any other patient. If someone under 16 is not judged mature enough to consent to treatment, the consultation itself can still remain confidential.

Adapted from Brook www.brook.org.uk