We are asked to advise the Children's Commissioner of England with respect to concerns arising from a new Immigration Rule (Draft Rule 352) that the Secretary of State proposes to lay before Parliament with a view to its implementation on the 1^st December 2007. This Rule reflects certain of the provisions of Article 17 of European Council Directive 2005/85/EC which lays down minimum standards on procedures in Member States for granting and withdrawing refugee status (the “Procedures Directive”).

The full wording of the proposed new Rule is as follows:-

We are asked to advise on the part of the proposed new Rules concerned with medical examination. It appears that the proposal is that in certain circumstances a person who claims to be under 18 but whose claim is contested by the Border and Immigration Agency (BIA) (a “disputed child”) “may be subjected to a medical examination” but:-

Although “medical examination” is not defined in the Rules it is apparent from the history of this provision and from statements made by the BIA and Ministers that it is contemplated that it may include the use of dental and other bone x-rays for the purpose of assistance in the process of age determination.

We are asked to advise on the legal and ethical position with respect to this proposed change to Rule 352 with particular reference to:-

To our knowledge, the proposed change of the Immigration Rules can be set in the context of the following matters:-

In February 2007, the Home Office published its consultation paper “Planning Better Outcomes and Support for Unaccompanied Asylum seeking Children”. At paragraph 27 it states “A holistic approach to age assessment with the final decision being made after taking account of several sources of information is our preferred approach”. That is an approach consistent with the UK case law and the advice of international and national bodies concerned with the interests of children.

The consultation then addresses the use of x-rays. It notes “we are aware that as part of this approach, a number of local authorities sometimes supplement the range of information available to the social worker by commissioning dental x-ray examinations”. No further details of such practices are given in the consultation or the subsequent statements by Ministers on this question. For reasons to be considered below, any requirement imposed on a disputed child to undergo x-rays as part of the age assessment process would be inconsistent with the advice given by professional bodies in the UK. In the light of the Home Office's proposals, however, the question now arises whether such practices are lawful, ethical, and a justified exposure of a child or putative child to radiation.

The Consultation paper notes that x-rays were used in the 1970s and early 1980s and suggests this use was abandoned because the practice at that time offered limited extra value over other age assessment techniques. It notes the increasing number of unaccompanied child asylum seekers and states that recent research indicates that x- ray analysis can be a more reliable means of determining age than was once thought. It notes that x-rays are used in a number of EU states who believe them to be reliable. It indicates that it has commissioned a review of existing research but would “welcome any other contributions to the debate particularly from medical professionals”.

It further states that there is a broad consensus that analysis of dental development will give an assessment of plus or minus 2 years for 95% of the population. Noting that dental development assessments have shown some child claimants to be at least 20 years, the paper announces an intention to make greater use of dental development X-rays where there is reasonable doubt over claimed age, subject to research and the outcome of the consultation exercise.

Our instructions include the responses to the consultation from the Royal College of Radiologists (RCR) dated 23 May 2007, the British Dental Association (BDA) dated May 2007, the Royal College of Paediatrics and Child Health (RCP) in a letter dated 31 October 2007, and the Children's Commissioner in a report dated 31 May 2007, as well as other bodies concerned with the interests of children and asylum seekers.

There is no indication in the submissions of the RCR, the BDA or the RCP that bone age or dental x-ray techniques have become any more reliable in recent years with respect to chronological age estimation of children raised outside North America and Europe whose dietary, social and cultural developments may reflect very different experiences from those experts are used to in the UK. The view that bone age and dental x-rays are unreliable in such situations is reflected in a learned article written in 1982 by Neil Cameron of the Institute of Child Health at the University of London and submitted by the Children's Commissioner in his response to the Home Office consultation along with an updating letter (dated 29 May 2007) to broadly similar effect from Professor Hindmarsh of the same Institute.

The RCR further makes the point that any medical exposure to radiation has to justified by a health care professional in accordance with the 2000 Regulations and that current guidance issued by the Department of Health for dental practitioners suggests that x-rays should only be requested by dental or medical practitioners and that the patient's consent should be obtained. It notes that the question of who should consider whether the exposure to radiation for a non medical use can be justified under the 2000 Regulations and the EU Directive is not addressed in the consultation at all. It observes furthermore that any exposure to radiation involves some risk to safety, and a perfectly sensible reason to refuse x ray examination would be not “wanting to be irradiated unnecessarily”. The response concludes “we are concerned about both the reliability of x-ray examinations for the accurate assessment of age and the clinical grounds for justification of these x-ray exposures”.

The BDA take a similar position in their response: “The BDA is vigorously opposed to the use of dental x-rays to determine whether asylum seekers have reached aged 18. This is an inaccurate method for assessing this age. We also believe that it is inappropriate and unethical to take radiographs of people when there is no health benefit for them”. The BDA note that the consultation only cites a 1963 paper on dental maturity with no evidence of any published work reporting accuracy. The BDA itself cites 2006 research suggesting that reasonably precise estimation can be made of children under 13 but the BDA remains concerned about the accuracy of dental examination for young adults 16 to 23. It suggests that research has not revealed significant differences between groups of children from different racial origins living in London and some others, but that this does not address individual differences in maturity rates that make the technique unreliable. Like the RCR the BDA is concerned about the legality and the ethical position of using radiation for a non-medical purpose and again cites the 2000 Regulations.

The BDA also provided input in respect of comparative EU practice, suggesting that its 2007 survey of EU states found that only 6 out of 21 states who responded used dental x rays; of these only 2 evaluated the data against studies from the child's country of origin. Like the RCR the BDA believe that a refusal of consent cannot be used to justify an adverse decision on an individual's age, as the individual has a right to refuse such non-medical treatment.

The registrar of the RCP wrote to the Minister in October 2007 expressing grave concerns about use of x-rays for non medical purposes and pointing out that the proposal was flawed firstly due to the clinical and ethical problems associated with the use of ionising radiation for age assessment in the absence of both appropriate informed consent and a health-related clinical indication for the procedure and secondly due to the fact that the margin of error about chronological age meant that the information obtained by the x-rays would not contribute any greater accuracy to the assessment of age than other methods of assessment such as physical evaluations. The Children's Commissioner wrote in similar terms revealing the broad outcome of his consultation with medical experts and the European Network of Ombudsmen and Children's Commissioners.

We are aware that on the 18^th July during the consideration of the then Borders Bill by the Standing Committee of the House of Lords, Lord Avebury moved a probing amendment to the effect that x-rays should not be used in medical examination of age assessment. This produced a response from the Minister Lord Bassam that no decision had yet been taken on the proposal, and this comment:-

The responses to the February 2007 have as yet to be published. We understand that the government will do so when they make an announcement of their decision on the question of whether x-rays are to be used in age assessment or not. Similarly the outcome of their review of research or fresh expert evidence is not yet in the public domain as far as we are aware.

In our opinion, the proposed rule change with respect to medical examination of disputed children raises a number of problems with respect to consent to medical examination, justification of the non medical use of x-rays and the ability of the Home Office to draw adverse inferences as to age from the refusal of consent. Whether or not the proposed new Rule is intended to embrace a new policy on non-medical use of x-rays, the language of the new rules should be changed to reflect current medical law and practice. If the rule is intended to embrace non medical use of x-rays then as drafted it is our opinion that it would contravene the law. We explain the reasons for these conclusions in the light of the legal provisions discussed below.

It is surprising that the new Rule refers to “may be subjected to a medical examination as part of the age assessment process”. A medical examination or procedure undertaken without the consent of an individual is an assault. Accordingly it is necessary to consider what constitutes consent and who has the capacity to give it.

In particular, the question of at what age and in what circumstances a child is able to give consent to medical examinations, investigations or procedures is of importance.

Section 8 (1) of the Family Law Reform Act 1969 (FLRA) provides that in the case of medical treatment a person who has attained the age of 16 can give as effective consent as if they were of full age and it is not necessary in addition to obtain any consent from a parent or guardian. There is a presumption that those of 16 and over have the capacity to consent. It might be thought that age disputed cases only concern those who are at least 16, but the experience of social worker assessments of cases disputed by immigration officers suggests that this is not the case and some children of 14 and 15 have been age disputed.

In Gillick v West Norfolk and Wisbech Area Health Authority and DHSS [1986] 1 AC 112 the House of Lords decided that a child under the age of 16 has the right to consent to or refuse medical treatment if he or she has sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.

Medical practitioners seeking to perform any examination, investigation or procedure on a child must therefore be satisfied that any child under the age of 16 has sufficient understanding of what is involved in any treatment before assessing their capacity to give a valid consent. The Department of Health `s Guidance on Consent for Examination or Treatment (1990) states:

Neither section 8 FLR, however, nor the decision of the House of Lords in Gillick applies to medical examinations or procedures conducted for non-therapeutic reasons. The presumption of a capacity to consent to a procedure that is considered beneficial for you does not apply to a procedure that is of no therapeutic benefit to you at all,

Whilst it is unlikely that the courts would consider that children would be incapable of giving a consent to non-therapeutic medical examination, the need for informed consent and sensitivity in how, when and by whom the procedures involved and the purpose of such an examination are explained assumes even greater importance in this context.

Although this question has not been the subject of any case-law, it is clear from the guidelines produced by medical institutions, and from legal commentators who have examined those guidelines, that wherever there are any risks to the child from non-therapeutic medical examinations or procedures the process of ensuring that informed consent has been given must be rigorously and carefully conducted, and mere parental consent will probably not be sufficient. The Royal College of Paediatrics and Child Health emphasises in its Guidelines for the Ethical Conduct of Medical Research Involving Children (2000) that risks to children must be individually assessed not generalised and include the possibility of causing distress to the child as well as physical harm. On the question of consent the Guidelines state:

In our opinion, whether or not a medical examination of an unaccompanied child asylum seeker involves exposure to radiation, it is capable of causing harm and distress to a young person at a very vulnerable moment. Removal of clothing, touching of body parts, intrusive questioning about family and life experiences may all be traumatic. It thus needs to be the subject of ethical, non-coercive explanation for a genuine and informed consent to be given. This is particularly true of a medical examination which is governed by Article 17(5) of the Procedures Directive because Article 17(6) of the Procedures Directive explicitly states that the best interests of the child shall be a primary consideration for Member States in the implementation of the provisions of Article 17.

The approach of the RCP guidelines is reflected in the following provisions of the Directive 2001/20/EC of the European Parliament and of the Council of 4 April 2001 ( the “Clinical Trials Directive”) .

Both medical examination for age-assessment and clinical trials concern interventions which do not or do not necessarily provide a health benefit or any benefit to the individual. Despite the differences that may exist between the two, in our opinion this factor indicates that the legal requirements as to informed consent by a child contained in the Clinical Trials Directive are persuasive as to the kind of informed consent that Regulation 17(5) of the EU Qualification Directive is concerned with, as is Article 5 of the European Convention on Human Rights and Biomedicine 1997 which applies to all medical interventions and not just to clinical trials and which states:

Further, when informed consent is being sought from a newly arrived young person from another country and culture claiming to be an unaccompanied child asylum seeker, particular care will need to be taken by the medical practitioner to obtain an informed consent. We would anticipate that access to an independent social worker, asylum lawyer and trained child centred reception centre worker would be necessary before any final decisions are taken. The process of informed consent would have to address the question of medical confidentiality and waiver at the same time.

The need for informed consent applies to any medical intervention and especially those conducted for non therapeutic purposes. As noted any such intervention creates some level of risk for a newly arrived traumatised asylum seeking child. However, where x-rays are concerned it is apparent that the law recognises a particular class of risk and has laid down duties to be complied with in the decision that lead an individual to be exposed to that risk.

Regulation 3 of the Ionising Radiation (Medical Exposure) Regulations 2000 states:

Regulation 6 provides:

A medical exposure is defined at Regulation 2 as any exposure to which Regulation 3 applies and which involves an individual being exposed to ionising radiation.

Regulation 7(7) requires practitioners to pay special attention to the medical exposures of children and to the need to keep medico-legal exposures as low as reasonably practicable.

We draw attention in particular to the fact that the question of justification for non-medical exposure to ionising radiation involved in x-rays has not been addressed by the Government in the sections on the consultation document dealing with its intention to use x-rays for age estimation. We agree with the response to the consultation of the RCR and the BDA that the 2000 Regulations impose legal obligations that are difficult to accommodate with the government's intentions.

A medical examination as described in proposed Immigration Rule 352 and reliance on x-rays in the context of such a medical examination would be a medico-legal exposure within the meaning of Regulation 3 (e) as it is a procedure performed for “legal purposes without a medical indication” (see regulation 2 (1) ).

Under the 2000 Regulations it is the medical practitioner (including a dentist or other health professional) who takes the decision on justification (regulation 5 (3)) and not either the operator of the X-ray machine or the Immigration Officer. An Immigration Officer can therefore only commission a medical examination and not a particular form of examination using radiation. Furthermore any consent to a medical examination that a person may give to the Immigration Officer cannot be on the basis of a precise account of the risks and procedures to be involved as the Immigration Officer will not be in a position to give such a precise account, and risks must be assessed on an individual not a generalised basis.

Regulation 6(1) makes it plain that no person shall carry out a medical exposure unless it has been justified and authorised by the practitioner as showing a sufficient net benefit giving appropriate weight to the relevant criteria set out in regulation 6(2)

Addressing these four criteria in the context of the present proposal and with the assistance of the expert medical observations from the relevant professional bodies, we observe:-

To emphasise these considerations Regulation 6 (3) requires the practitioner in assessing the weight of justification to pay particular attention to exposures on medical-legal grounds and exposures that have no direct health benefits. The implication is strongly that such exposures are not justified unless the individual seeks them for some compelling social benefit to him or herself.

We can contemplate that an age disputed claimant might persuade a practitioner that an exposure is justified at his request if there was a reasonable likelihood that the results of the x-ray would persuade the Home Office that s/he was a minor. Unless, however, there is some new protocol indicating that a certain class of result will be accepted without more, such a benefit is unlikely to occur save in the most obvious case where it is not necessary. We rather doubt whether x-ray exposures that have taken place between 1980 and 2007 at the claimant's request could be justified under the 2000 Regulations. Justification becomes more difficult to achieve where the individual has not requested the x-ray, and where alternative methods of assessments may produce as good as or an even better assessment of chronological age.

In any event, as current practice and guidance to professionals indicates for any justification for non -medical purposes to be made, there must be informed consent with the practitioner explaining the merits and demerits to the individual. The consent cannot be done in a tick-box way and consent cannot be given to the immigration officer who is not the responsible medical professional.

We would anticipate that further guidance will be given by the professional bodies to practitioners on the ethics, substance and appropriate procedures for justification, and cannot imagine that in the case of an age disputed child the importance of informed consent will be weakened. This is reinforced by the fact that Article 17(6) of the Procedures Directive requires that the best interests of the child must be a primary consideration when the UK seeks to comply with the rules on medical examinations in Article 17(5). This is a principle reflected in the UN Convention on the Rights of the Child (CRC) that is a guiding norm of international law in this area. Of course there is a further difficulty where a child is not capable of giving his consent and in the case of UASC there will be no responsible adult who can give it. It is our opinion that a person who may well be a child depending on the outcome should be treated as if they are a child for any irrevocable purpose such as consent to medical treatment. Assuming these difficulties are addressed and a valid consent can be given by the child or a person with responsibility for the child, the question then has to be considered as to what the implications are if consent is refused.

The proposed rules assume that an adverse inference can be drawn on the question of age or asylum from a disputed child's refusal to undergo a medical examination although, in relation to the decision on the asylum application, it must not be the only basis for such a conclusion. It is far from clear that such inferences could lawfully be generally inferred is lawful applying the interlinked principle of informed consent and justification.

First we consider it is unlikely that the medical practitioner will consider the non-medical exposure to radiation is justified if consent is refused, for reasons considered above. It would appear to us to be legally impermissible for the Home Office to draw an adverse inference where the practitioner does not consider the exposure is justified.

Second, for reasons given by the RCR any refusal to be exposed to radiation for a non-medical reason is considered by the professionals to be reasonable. It would be irrational for a reasonable refusal that has nothing to do with the true age of the applicant to be used against them in assessment of age. It would also be inconsistent both with the requirement that the best interests of the child be a primary consideration and with the UK's obligations under Article 24 of the CRC, which requires states inter alia to recognize the right of the child to the enjoyment of the highest attainable standard of health, to penalise children for a refusal to undergo x-rays which pose a risk to their health.

Thirdly, and linked to the previous point the very concept of informed consent is undermined if there is an extraneous penalty or disadvantage imposed because consent is not given. It is inconsistent with a legal and ethical regime that requires genuine consent to medical interventions for a non-therapeutic purpose, to penalise a claimant as perpetrating an attempted fraud when having been informed of his or her right to refuse consent he or she does so. It also risks the UK being in breach of its obligations under Article 12 CRC which provides that states must ensure that a child who is capable of forming his or her own views has the right to express those views freely in all matters affecting the child. The Rules as drafted do not seem to give any recognition to these difficulties, and unless they are accompanied by detailed instructions, and a Code of Practice reflecting the informed consent approach noted above, they are likely to be at best useless in contributing to the better detection of false claims and at worst result in breaches of the law.

We therefore conclude the proposed change to Rule 352 of the Immigration Rules gives insufficient emphasis to the need to obtain free and informed consent from children to any medical examination conducted for non-therapeutic purposes and at the behest of a third party. In particular it is our view that:

The problems with proposed Immigration Rule 352 will become more stark if the Home Office attempts to use it as the basis for introducing x-rays as a tool for assessing age. In so far as the rule changes are intended to implement a regime whereby immigration officers can request that asylum claimants consent to medical examination by x-ray and draw adverse inferences as to their age in the event of a refusal of consent, then such a regime is contrary to law, namely the Ionising Radiation Regulations 2000.

If this is not what is envisaged by the proposed rule changes then for the reasons set out at paragraphs 50 above it is our view that the wording of Rule 352 should be altered to avoid the high risk of unlawful decisions being taken to require children to undergo medical examinations. The Immigration Rule should in our view indicate no more than a greater willingness to refer age dispute cases to medical practitioners as well as or in addition to social workers.