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Letters
Competent for confidence at 12 years of age?
  1. Robert Wheeler
  1. Wessex Centre for Paediatric & Neonatal Surgery, Southampton University Hospitals Trust, Southampton, UK
  1. Correspondence to Robert Wheeler, Wessex Centre for Paediatric & Neonatal Surgery, Southampton University Hospitals Trust, Tremona Road, Southampton, Hampshire, Southampton SO16 6YD, UK; robert.wheeler{at}suht.swest.nhs.uk

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The British Medical Association toolkit,1 in keeping with government advice, notes that children of 12 years and over are presumed to be competent to provide their consent for the disclosure of their personal information. This is inconsistent with the rules governing the treatment of children in England, Wales and Northern Ireland.

The Data Protection Act 1998 noted the presumption (in Scottish law) of competence in children of 12 years or over.2 But the guidance of the Information Commissioner3 on the DPA 1998 and subsequently that of the government4 indicated that the Scottish law applied throughout the entire UK. The Information Commissioner's resultant guidance is clear: ‘that a person of 12 years or more shall be presumed to be of sufficient age and maturity to have…understanding’.

This guidance has been followed: Action on Rights for Children demonstrates that central and local governments have conflated this error into a ‘de facto age of consent’ (of 12 years) for information disclosure. From the legal perspective, there appears to be no ‘precedent or authority in the (English) common law or statute which asserts a presumption that a child of 12 is competent to consent and in general terms it is certain that such a child does not have legal capacity’.5

Thus, it appears that the government's guidance is incorrect.

Application of the Gillick approach6 suggests that children should be given the opportunity to prove that they are competent to consent to the disclosure of their private information in just the same way as they can establish their capacity when faced with the possibility of providing consent for treatment. This would be consistent with the approach taken in the case of Axon7; the court held that if the child could establish her capacity to control her information, her mother had no right to be informed.

There is no need to create a distinction between the determination of capacity required to provide consent for treatment and that needed to consent for the disclosure of personal information. In the case of people below the age of 16 years, the presumption in both situations must be that the child lacks the capacity to consent, but is given the opportunity, using the Gillick test, of proving that he or she is competent for that particular decision. To distinguish between these situations by creating a presumption of competence only for confidentiality is confusing, and in England, unsupported by law.

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Footnotes

  • Competing interests None.

  • Provenance and peer review Not commissioned; externally peer reviewed.