Doctors’ responsibilities in child protection cases
June 2004
Part six: examination or assessment for child protection purposes
- The need for consent
- Requirements for valid consent to a child protection assessment
- The need to avoid unnecessary assessments
- The role of the court under the Children Act
- Refusal of examination
- Recommendations concerning a child’s refusal
- The role of the expert witness
- Information to be provided to experts
- Duties of experts
- Further advice
The need for consent
Except in an emergency, any examination or assessment which involves physical contact with the child requires consent (from a competent child, a parent or another person with parental responsibility), or authorisation from a court. Even if assessment does not involve physical contact, (for example an interview as part of a psychological or psychiatric assessment), consent is required. [Go to reference18] In exceptional circumstances, particularly with young children, it may be in the best interests of the child to undergo an examination without explicit consent. These circumstances are likely to be infrequent, and would require clear justification based upon an informed judgement of the best interests of the child. In these circumstances doctors should make a clear record of the decision to go ahead, and its justification in the child’s medical notes. Doctors should try as far as possible to work with the child, explaining in ways meaningful and sensitive to the child, the nature of the examination and the reasons that lie behind it.
As in other contexts, any person with parental responsibility may provide consent. The opposition of one person with parental responsibility does not prevent valid consent being given by another. Therefore, if there are concerns about the possibility of abuse by a young child’s father, for example, it may be possible to obtain consent for an assessment from the child’s mother. If an assessment is necessary, and no valid consent can be obtained, legal advice must be sought and it may be necessary to apply to the courts for authorisation of an assessment.
Requirements for valid consent to a child protection assessment
To obtain legally valid consent, it is necessary for the person giving consent to be informed of the nature and purpose of the proposed assessment. The person giving consent should not be deceived or misled about the purpose of an assessment. Being open about the purpose is clearly necessary when an assessment is requested by a statutory agency responsible for child protection (for example, social services or the police).
The need to avoid unnecessary assessments
The courts have emphasised that it is harmful for children to be exposed to an unnecessarily large number of assessments. For example, in the case of Re CS, the High Court heard that a child had been subjected to 12 intimate physical examinations by the same doctor. [Go to reference19] Mrs Justice Bracewell said:
By reason of the failure of the court to control the examination of [the child], she was, in my judgment, subjected to abusive intimate examinations on more occasions than could possibly be justified. [Go to reference 20]
Once legal proceedings have begun, the court is responsible for deciding whether an assessment is required for the purposes of the proceedings, having regard to the child’s welfare. Nevertheless, there is a danger that children may be repeatedly assessed before court proceedings have been initiated. For example, one parent may be convinced that the other parent is abusive, and be determined to seek evidence to confirm this. In other cases, a parent may agree to a series of assessments at the request of a local authority, because of a fear that the local authority will initiate care proceedings if consent is not granted. In such situations, professionals must exercise independent judgment in deciding whether a further assessment is necessary and in the child’s interests.
Where there are concerns that inappropriate and unnecessary assessments are being carried out, it has been suggested that an order could be sought from the court, prohibiting a parent from granting consent for further assessments. [Go to reference 21]
The role of the court under the Children Act
Once legal proceedings under the Children Act (or its equivalent in other UK jurisdictions[Go to reference 22]) have been initiated, the court is responsible for making decisions about the conduct of the proceedings, including whether any assessments should be carried out. The Family Proceedings Rules 1991 state:
No person may, without the leave of the court, cause the child to be medically or psychiatrically examined, or otherwise assessed, for the purpose of the preparation of expert evidence for use in the proceedings. [Go to reference 23]
Therefore, before undertaking an assessment for the purpose of legal proceedings, medical professionals should confirm that the court has granted permission (known as “leave”) for the assessment. Obviously this requirement does not prevent any assessment which is necessary for the child’s health, since this is not undertaken for the purpose of the preparation of expert evidence. In addition, when the court makes certain orders, it can positively direct that an assessment should take place, or direct that there is to be no examination of the child. For example the Children Act states:
(6) Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child; but if the child is of sufficient understanding to make an informed decision he may refuse to submit to the examination or other assessment.
(7) A direction under subsection (6) may be to the effect that there is to be --
(a) no such examination or assessment; or
(b) no such examination or assessment unless the court directs otherwise. [Go to reference 24]
Similar provisions apply to emergency protection orders and child assessment orders. [Go to reference 25]
Refusal of examination
It is significant that the sections of the Children Act which allow the court to direct that an assessment should take place also state that a child who is of “sufficient understanding to make an informed decision” may refuse to submit to the examination or assessment. [Go to reference 26] Therefore, even where an assessment has been specifically authorised by a court, it is still necessary to assess the level of the child’s understanding, and to seek the child’s agreement, before proceeding with the assessment.
Recommendations concerning a child's refusal
Where a child refuses to co-operate with an assessment, there are several possibilities.
- It may be decided that assessment is impossible without the child’s co-operation, or that it would be inappropriate to proceed in the face of the child’s objections. In these circumstances, legal advice should be sought.
- It may be decided that the child lacks sufficient understanding to make an informed decision. An authorised assessment can lawfully proceed despite the child’s objections, although health professionals may well be unwilling to proceed in such circumstances. If it is likely to be necessary to use force or sedatives to overcome the child’s resistance, legal advice should be sought.
- It may be decided that the child is considered to have sufficient understanding to make an informed decision. In these circumstances, the court has no power under the Children Act to override the child’s refusal. However, in the case of South Glamorgan County Council v W and B, [Go to reference 27] it was decided that the High Court exercising its “inherent jurisdiction” may authorise an assessment against the wishes of a competent child if the child would otherwise be likely to suffer “significant harm”. This power is not available in magistrates’ courts or county courts, and this precedent is unlikely to be followed in Scotland.
- there is a high probability that useful evidence can be obtained;
- the evidence cannot be obtained in any other way; and
- the benefit to the child from obtaining the evidence outweighs the burdens involved in imposing the assessment on the child.
Specific guidance on providing expert evidence for courts is provided in the professional literature. [Go to reference 28] There are now also a large number of judicial decisions, where the courts have given guidance on the appointment of experts. The important points are summarised below. [Go to reference 29]
Information to be provided to experts
- Experts should seek further information and documentation when required.
- Doctors who have prior clinical experience of a child should have all clinical materials in advance of the hearing for inspection by the court and other experts. This might include medical notes, hospital records, x-rays, photographs and correspondence.
- Experts who are to give evidence must be kept up to date with developments in the case relevant to their opinions and it is the duty of the solicitor instructing the expert to provide such information.
- Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced by others. Experts should provide independent assistance to the court by objective unbiased opinion, in relation to matters within their expertise.
- Experts should state the facts or assumptions on which their opinions are based, and should not omit to consider material facts which detract from their conclusions.
- Experts should make it clear when a particular aspect is outside their expertise.
- If an expert opinion is not properly researched by reason of insufficient data, then this must be stated with an indication that the opinion is provisional.
- If at any time an expert changes his or her opinion on a material matter, this information must be communicated to the other parties, and when appropriate, to the court.
- If an opinion is based, wholly or in part, on research conducted by others, this must be clearly set out in the report, the research relied on must be identified, and the expert must be prepared to justify the opinions expressed.
Further advice on these issues may be sought from professional, regulatory or indemnifying bodies.