Safeguarding
Assessing competence in under-16s
Under the Sexual Offences Act 2003, the legal age of consent is 16, and sexual activity with anyone under this age is illegal, even if both parties consent. Nevertheless, PGDs do allow pharmacy technicians to provide oral EHC to under 16-year-olds, but in such cases, capacity is not presumed and therefore must be assessed.
The term ‘competence’ is used instead of ‘capacity’ for this age group. The Gillick test helps determine competence and permits healthcare professionals to provide medical advice or treatment without parental involvement if the child demonstrates sufficient understanding and intelligence to fully comprehend the treatment. If the child fails the Gillick test, consent must be obtained from someone with parental responsibility.
The Fraser guidelines cover the provision of contraceptive advice and treatment to those aged under 16. Under this ruling, a girl aged under 16 years with sufficient understanding and intelligence may legally consent to contraceptive advice, treatment and necessary examinations.
The Fraser guidelines apply in England, Wales, and Northern Ireland. While they may be used in Scotland, the primary legislation there is the Age of Legal Capacity (Scotland) Act 1991, which states that a person under 16 can consent to treatment if they understand its nature, potential consequences, benefits and risks.
Children under 13 years of age
Under the Sexual Offences Act 2003, sexual activity with anyone under 13 is illegal, as individuals of this age are deemed incapable of consent. In Scotland, the Sexual Offences (Scotland) Act 2009 sets the age of consent at 16, and any sexual activity involving a person below this age is generally a criminal offence.
Safeguarding
In addition to assessing competence, you must also screen for safeguarding concerns, as sexual activity in a young person can indicate potential child sexual exploitation or abuse. Key areas to address during EHC consultations include:
- Consent and autonomy
- Possible exploitation or abuse
- Welfare and safety
- Vulnerability and risk.
Safeguarding questions should be asked sensitively and without judgment. To normalise the process, it is helpful to explain that these questions are routinely asked to ensure patient safety.
Potential safeguarding red flags include:
- Hesitancy, confusion or distress
- Lack of eye contact
- Significant age difference with the partner, or if the older partner is waiting outside
- Signs of emotional control, coercion or threats
- Repeated requests for oral EHC
- Absence of regular contraceptive use.
Reporting safeguarding concerns
Maintaining patient confidentiality is essential, but where safeguarding concerns arise, you have a duty of care to share relevant information and take appropriate action to protect the young person.
If the individual is at immediate risk of serious harm, sexual assault, or appears unable to return home safely, you must contact the police. Sexual activity involving anyone under 13 is illegal, and you have a mandatory obligation to refer to children’s social care and the police.
For less urgent concerns, contact your designated safeguarding lead.
Consent to share
When sharing safeguarding concerns with partner agencies, the GPhC advises seeking the individual’s consent wherever possible. However, disclosure without consent is permitted if obtaining consent would undermine the purpose of disclosure – for example, where action is required in the public interest. You should also consider the potential harm of not disclosing the information.