The Sexual Offences Act 2003 (which came into force on 1st May 2004) continues to criminalise all sexual activity with a child under the age of 16 years. However, the final decision to prosecute will always lie with the Crown Prosecution Service. Home Office and CPS guidance suggests that prosecutions are unlikely if the parties involved are close in age and the activity is consensual (www.cps.gov.uk).
In relation to child sex offences there are three age bands defined by The Act
- Under 13 years of age, a child has no capacity to consent to any sexual activity
- 14–16 years of age, a child has limited capacity to consent
- 16–18 years of age, capacity to consent (but specific protection under The Act for this age group for offences relating to indecent photographs, prostitution, pornography, abuse of trust, and familial offences/incest)
At the present time, it is not mandatory to report any sexual activity to the police, for a child under the age of 16 years, or even under the age of 13 years. However, this is subject to ongoing consultation.
Section 14 of The Act made it an offence to arrange or facilitate the commission of an offence under The Act. In addition there is a common law offence of aiding and abetting. Thus Clinicians prescribing, providing advice on contraception, or providing condoms to a minor could place themselves at risk of prosecution if the minor engaged in sexual activity. Healthcare exceptions to The Act were introduced,
"Those who act with the purpose of protecting a child from a sexually transmitted infection, protecting the physical safety of a child, preventing a child from becoming pregnant or promoting the child's emotional well being by the giving of advice will not commit an offence." Section 14(2) and (3)
When being asked to advise and prescribe to a minor who seeks contraceptive advice, it is vital to consider the following issues
- Consent – the minor can provide consent if "Gillick competent", having sufficient maturity and understanding to make an informed decision about contraception (see guidance on Clinical consent for elective non-urgent treatment)
- Confidentiality - the clinician is bound by patient confidentiality if the minor is Gillick competent and there does not appear to be any grounds for concern about the child's welfare. If there are child protection concerns, patient confidentiality is secondary to protection of the child's welfare, and consideration should be give to referral to Social Services and reporting to the police (see guidance on Confidentiality and record keeping in the context of child protection, and Child protection procedures).
- Record keeping- in order to protect the clinician against allegations of negligence or criminal sanctions it is wise to ensure that a good record is kept of the advice provided to the minor, or any person who presents themselves as having authority to provide consent on behalf of the minor (again see guidance on Clinical consent for elective non-urgent treatment). Good record keeping will also be vital if there is a suspected child protection issue.
The Home Office has produced guidance on the Sexual Offences Act www.homeoffice.gov.uk.
NHS guidance is available
Best Practice Guidance Gateway reference number 3382 www.dh.gov.uk (pdf)
The BMA has issued a statement in response to the updated Working Together to Safeguard Children (May 2006) titled "A BMA statement on information sharing in relation to sexually active young persons" www.bma.org.uk.
This information is for educational purposes only and is not intended to substitute seeking legal or clinical advice where appropriate. For further legal information, please contact the Law Society of England and Wales at www.lawsociety.org.uk.
This guidance is produced by WardHadaway.
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