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Complementary therapy and children
Introduction
Children now regularly request complementary therapies of various types, and with recent changes in the law and with the focus coming more onto actions of professionals providing treatment, all therapists should take care and be fully aware of their legal and moral responsibilities.
by Prof Tam Llewellyn-Edwards PhD
This article is based on English law, and those therapists practicing outside the jurisdiction of English law should seek information on local requirements. Practitioners may also find that the code of conduct or regulations of their professional bodies or the groups they work within add stronger requirements. In this short article I can only outline the main points and those seeking more detailed information should consult a solicitor experienced in these matters.
How is ‘Children’ defined?
The first step in assessing our responsibilities towards children is to decide what is the legal definition of a child and how a competent child is defined in law.
There are two different groups of children in law. The legal position regarding competence is different for children over and under 16 years of age. Children over 16 and under 18 are presumed in law to be competent to give consent to treatment for themselves, and indeed in this respect they can be treated as adults. If a consent form is used by the practitioner the signature of a child over 16 is sufficient.
Of course, children over 16 (and adults) may not be competent to give consent. To be so competent they must be able to comprehend and retain information material to the decision and its consequences, and must be able to weigh and use that information in a decision-making process.
Children under 16 years of age are not automatically presumed to be legally competent to make decisions about health care, but they may be. The Courts have rules that under 16s are competent to give valid consent if they have “sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. This is known as Gillick Competence.
There is no legal minimum age at which a person can receive complementary treatment, but consent is necessary from a competent child or from the adult who has parental responsibility for a child who is judged not to be competent.
What is consent?
Consent does not have to be formal written consent, and does not even have to be given orally. The very act of bringing a child to a practice can be considered as consent, provided the competent child or the adult with parental responsibility is fully informed of the treatment, the form it will take and any dangers which may be involved in its use. They should also be aware of alternative treatments which could be considered. However, if there may be a problem it is advisable to ensure that consent is given in written form. Having said that a signature on a consent form (being that of a competent child or an adult) means very little in itself and is only valid if the signatory has a clear understanding of the issues so could give informed consent. A signed consent form is not legal proof that genuine consent has been given.
If a child coming for therapy is not one who could be judged competent to give consent and the adult with parental responsibilities is to give consent, the practitioner must be aware who that adult will be. This is set out in the Children Act 1989. Basically that adult will be either of the child’s parents, if they were married at the time of conception or birth or subsequently married, or the mother if the father does not qualify. In addition to these, the responsible adult may be one appointed by a court or given such powers by the responsible adult.
Foster parents, step parents and grandparents do not automatically have parental responsibility although they can acquire it by appointment. That appointment can be granted by anyone with parental responsibilities in writing, orally or by action (for example, by allowing the grandparent to bring the child to the clinic). The requirements for informed consent still apply.
It is clear from the above that there may be more than one adult with parental responsibilities. If this is the case then the consent of any one of them is all that is strictly necessary, although if there is likely to be conflict it is best to try to obtain the consent of all qualified to give it.
Where an adult, not one with parental responsibilities, has care of a child The Children Act allows that person to ‘do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare’. In these cases consent from the adult with parental responsibilities is not necessary, but every effort should be made to contact that adult.
Once given, consent can be withdrawn at any time. If this happens the therapy should be discontinued as soon as it is safe to do so. It is worth noting that an adult with parental responsibilities cannot over rule the consent given by a competent child. On the other hand, if consent is refused by a competent child it can be given by the adult with parental responsibility.
Chaperoning
Practitioners should never be alone with a child, competent or not, under the age of 16 even for simple initial consultations. For your own protection you need an adult to witness your actions at all time. The chaperone does not have to be the adult with parental responsibilities, but should be a responsible adult. The chaperone has to be in ‘close proximity’ and must be informed that the therapist is treating a child under 16 and wished them to witness the work being undertaken.
Abuse
If therapists are requested to undertake treatment, even if it is clearly legal for them to do so, they are not obliged to give that treatment. Therapists are not obliged to treat any specific client. If the therapist feels the treatment is unethical, inappropriate or potentially unsafe they should refuse to treat even if consent is given by the client, the appropriate adult, or their GP.
If a practitioner comes to believe that a child client is subject to abuse in any form, it is their professional and moral obligation to report their suspicions. Reports should be made to the local social services or the NSPCC through the therapist employer, if employed, or direct if self employed. Contact should be made via the NSPCC Child Protection Helpline (0808 8000 500). In this a therapist’s legal responsibility is no different from any member of the public.
In cases of suspected abuse the therapist should not question the child regarding the circumstances. If the child does not share any details they should not be sought, rather the conversation should be steered gently away from the subject without rejecting the child’s information. Such questioning is best left to professionals in this matter.
Criminal Records Bureau check
The Criminal Records check was once the List 99 check and is still often referred to as such. If a therapist is working under the banner of an organisation which is registered under the banner of the Criminal Records Bureau they may be required to apply for a Standard or Enhanced Disclosure. The Child Protection Act 1999 requires that such checks be made for workers in child care organisations, such as hospitals, and encourages such checks to be made by other organisations such as Scouts and Guides and junior athletics clubs.
Therapists are not required to apply for these checks. In fact it is not possible for self employed therapists to apply for any level of disclosure on a voluntary basis. There are plans to introduce legislation which would introduce a ‘Basic Disclosure’, but this level will only disclose ‘unspent criminal convictions’. This legislation is currently under review.
Confidentiality
It is no protection in law to claim that patient/therapist interactions are confidential, and this applies equally to child clients. It is not possible to grant confidentiality to discussions between client and therapist as disclosure of the details of these exchanges can be demanded in a number of situations.
When the case involves a child the situation is even more complex. Generally, when a child presents for treatment the payment is made by an adult. This being the case the therapist contract is with the adult and the adult can demand disclosure.
The situation is further complicated by the adult’s legal responsibility to safeguard the child. A therapist who shows complicity with an adult in an act or an omission which is against the best interests of the child may be guilty of aiding and abetting an offence.
If a therapist comes up against a situation where a child client does not want some aspect of the discussions disclosed to a responsible adult, the best action is to discuss the matter with the child. Of course if the matter involves abuse it should be reported without delay.
Conclusions
The treatment of children is a very complex area. However, although the
law is complex, taking simple and intuitive precautions will go a long
way to ensure that therapists stay within the law. This article is intended
to outline the general position in England, and will suffice for most
cases. More information is available in the Department of Health publication,
‘Seeking consent: working with children’ (available as a free download
from www.dh.gov.uk/en/Publicationsandstatistics/Publications)
and the BMA’s publication ‘Consents, rights and choices in the health
care of children and young people’ (2001).
The relevant Acts in the UK include:
- Children Act 1989; Social Services Act 1970 (section 7);
- Protection of Children Act 1999;
- Youth Justice & Criminal Evidence Act 1999;
- Care Standard Act 2000;
- ECHR (Human Rights Act 1998).
Therapists who find themselves in difficult situations in the care and treatment of children should urgently consult their professional association or a solicitor well versed in this area.