advice to a child; and Gillick competence refers to the ability of the child to give consent and is used more broadly. It is not just an ability to choose where the child recognizes that there is a choice to be made and is willing to make it. The House of Lords concluded that advice can be given in this situation as long as: Health professionals should still encourage the young person to inform his or her parent(s) or get permission to do so on their behalf, but if this permission is not given they can still give the child advice and treatment. Did you know that with a free Taylor & Francis Online account you can gain access to the following benefits? The two girls lived with their respective mothers. The court rejected a claim that not granting parents a right to know whether their child had sought an abortion, birth control or contraception breached Article 8 of the European Convention on Human Rights. It is lawful for doctors to provide contraceptive advice and treatment without parental consent providing certain criteria are met. There is no set of defined questions to assess Gillick competency. If the young person has informed their parents of the treatment they wish to receive but their parents do not agree with their decision, treatment can still proceed if the child has been assessed as Gillick competent. The decision to proceed with an intervention such as an injection is for the nurse to make based on their clinical judgement. In fact, the court held that parental rights did not exist, other than to safeguard the best interests of a minor. The Geeky Medics bank of 700+ OSCE stations provides everything you need to practise your clinical skills and prepare for your OSCEs. 2023 In a 2006 judicial review, R (on the application of Axon) v Secretary of State for Health, the High Court affirmed Gillick in allowing for medical confidentiality for teenagers seeking an abortion. Gillick v West Norfolk and Wisbech Area Health Authority went to the House of Lords and is often used as a legal precedent across the UK. Mental Health Matters, What is Marions Case (1982)? More information about this is available in the guidance for medical professionals in each UK nation - see case history and legislation. A doctor can prescribe contraception to children under 16 years old if: NB: bear in mind the age of the partner and risk of sexual abuse. When prescribing contraception to children under 16 years, it is essential to assess for coercion or pressure , for example, coercion by an older partner. Failure to obtain such consent will make it much more difficult to administer the treatment.Citation9. But Gillick competency is often used in a wider context to help assess whether a child has the maturity to make their own decisions and to understand the implications of those decisions. Such children are deemed to be capable of giving valid consent to advice or treatment without parental knowledge or . 6 The arguments constructed and analysis undertaken in this paper endeavour to encompass decisions made by 'Gillick competent' children in relation to both consent and refusal of medical treatment. Due to the unique specifics of that treatment, the High Court concluded that in such cases the answer will almost always be no, a priori. This lack of authority reflects that the reported cases have all involved minors who have been found to be incompetent, and that Australian courts will make decisions in the parens patriae jurisdiction regardless of Gillick competence. Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1984] Q.B. Victoria Gillick challenged Department of Health guidance which enabled doctors to provide contraceptive advice and treatment to girls under 16 without their parents knowing. However the Family Law Reform Act 1969 states: "The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, should be as effective as it would be if he were of full age; and . Once the child reaches the age of 16: (i) the issue of Gillick competence falls away, and (ii) the child is assumed to have legal capacity in accordance with s.8 Family Law Reform Act 1969, unless (iii) the child is shown to lack mental capacity as defined in ss. The right of younger children to provide independent consent is proportionate to their competence - a child's age alone is clearly an unreliable predictor of his or her competence to make decisions. Department of Health and Social Care (2009) Reference guide to consent for examination or treatment (second edition). A patient under the age of 16 years can consent to medical treatment . 08/12/20. Registered charity in England and Wales (216401), Scotland (SC037717) and Jersey (384). In this context, welfare does not simply mean their physical health. This key principle is reflected in consent law applied to children. A minor is considered to be competent to consent to treatment when the person 'achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed'. For more information, please visit our Permissions help page. 1 We adopt the familiar medico-legal language of the 'mature minor'. It is not just an ability to choose . The content herein is provided for informational purposes and does not replace the need to apply Where both parents and a Gillick competent child refuse then resorting to litigation is likely to be an ineffective approach. A good practice guide on consent for health professionals in NHS Scotland (PDF). The Axon case set out a list of criteria that a doctor must meet when deciding whether to provide treatment to an under-16 child without informing their parents: they must be convinced that they can understand all aspects of the advice, that the patients physical or mental health is likely to suffer without medical advice, that it is in the best interests of the patient to provide medical advice, that (in provision of contraception) they are likely to have sex whether contraception is provided or not, and that they have made an effort to convince the young person to disclose the information to their parents. Children under 16 may be considered 'Gillick competent' to make treatment decisions, but may need to demonstrate this. Let's make care better together. It lays down that the authority of parents to make decisions for their minor children is not absolute, but diminishes with the childs evolving maturity. Date: 27 February 2018. Gillick competence is concerned with determining a childs capacity to consent. treatment, their physical or mental health, or both, are likely to suffer, the young person's best interests require them to receive contraceptive advice "Gillick competence" is a term originating in England and is used in medical law to decide whether a child (16 years or younger) is able to consent to his or her own medical treatment, without the need for parental permission or knowledge. As the case concerned a fundamental issue of parental responsibility the High Court heard the case under the provisions of section 8 of the Children Act 1989. Later she had a total of 10 children. However, these are only obiter statements and were made by a lower court; therefore, they are not legally binding. Clearing up some common myths about our inspections of GP and out-of-hours services and sharing agreed guidance to best practice. A child who has such understanding is considered Gillick competent . The Gillick Competency Principle is in effect in Australia since 1992 and deals with parental guidance and information with respect to minors' use of contraceptives and decisions with respect to abortion and pregnancy. endobj 2K Yf0t If they don't want to do this, you should explore why and, if appropriate, discuss ways you could help them inform their parents or carers. Section 2 sets out when a child under the age of 16 can consent to medical treatment or procedures. Gillick Competency 'Gillick competence' is a term originating in England and is used in medical law to decide whether a young person (under 16 years of age) is able to consent to his or her own medical treatment, without the need for parental permission or knowledge. Gillick competence is the principle we use to judge capacity in children to consent to medical treatment. 2(1) and 3(1) Mental Capacity Act 2005. The majority held that in some circumstances a minor could consent to treatment, and that in these circumstances a parent had no power to veto treatment. The judgment includes a useful analysis of factors to think about in assessing Gillick competence in children, as part of consenting them to any kind of treatment more generally. &Ed@ Gillick Competence: An unnecessary burden . Additionally, a child may have the capacity to consent to some treatments but not others. ; If under 13, is the patient engaging in sexual activity? It is task specific so more complex procedures require greater levels of competence. The issue before the House of Lords was only whether the minor involved could give consent. Usually, when a parent wants to overrule a young persons decision to refuse treatment, health professionals will apply to the courts for a final decision. Re W (A minor) (Medical treatment court's jurisdiction). The Fraser guidelines apply specifically to advice and treatment about contraception and sexual health. in England and Wales by the House of Lords in the case of Gillick vs West Norfolk The Fraser guidelines specifically relate only to contraception and sexual health. Tern enrolment procedure. useGPnotebook. ; Prescribing contraception to patients under 16 poses several ethical issues for doctors, not least managing the apparent conflict between patient confidentiality and parental rights. they are 'Gillick competent' The court views immunization as a voluntary process that both parents are entitled to be consulted on. If under 16, is the patient Gillick competent? BMJ, Gillick v West Norfolk & Wisbech AHA & DHSS [1983] 3 WLR (QBD), Axon, R (on the application of) v Secretary of State for Health [2006] EWHC 37 (Admin), He/she has sufficient maturity and intelligence to understand the nature and implications of the proposed treatment, He/she cannot be persuaded to tell her parents or to allow the doctor to tell them, He/she is very likely to begin or continue having sexual intercourse with or without contraceptive treatment, His/her physical or mental health is likely to suffer unless he/she received the advice or treatment. Registered in England & Wales No. sometimes termed as Gillick Competence, is granted to a person under the age of 18 where they can demonstrate sufficient insight and understanding of major decisions . However, the parens patriae jurisdiction of the court remains available allowing a court order to force treatment against a childs (and parents) wishes. Gillick sought a declaration that prescribing contraception was illegal because the doctor would commit an offence of encouraging sex with a minor and that it would be treatment without consent as consent vested in the parent; she was unsuccessful before the High Court of Justice, but succeeded in the Court of Appeal. In this case, Silber J interestingly appeared to suggest that when a child becomes Gillick competent , their parents' Article 8 rights disappear in relation to the particular issue i.e. Feature: My child, my choice. Following a legal ruling in 2006, Fraser guidelines can also be applied to advice and treatment for sexually transmitted infections and the termination of pregnancy (Axton v The Secretary of State for Health, 2006). As cited in Family Law Week. 4 0 obj A child of 15 years or above would normally be expected to have sufficient maturity, intelligence and understanding to . stream The right to decide on competence must not be used as a license to disregard the wishes of parents whenever the health professional finds it convenient to do so. Each station includes the following 3 components: Student instructions (the brief before beginning a station) Patient script (explaining the symptoms/signs the patient should report/demonstrate) Gillick competence is a functional ability to make a decision. The age at which a person becomes an 'adult' in Australia is 18. This first came into effect in England when Mrs. Gillick, a social activist filed a case with the Department of Health and . Where a person under the age of 16 is not Gillick competent and therefore is deemed to lack the capacity to consent, it can be given on their behalf by someone with parental responsibility or by the court. 5 Howick Place | London | SW1P 1WG. referred specifically to doctors but it is considered to apply to other health Professionals need to consider several things when assessing a child's capacity to consent, including: Remember that consent is not valid if a young person is being pressured or influenced by someone else. If a child does not pass the Gillick test, then the consent of a person with parental responsibility (or sometimes the courts) is needed in order to proceed with treatment. Your information helps us decide when, where and what to inspect. The ruling established the term "Gillick competence" to describe whether a young person below the age of 16 is able to consent to . However, unlike adults, their refusal of treatment can in some circumstances be overridden by a parent, someone with parental responsibility or a court. This includes making sure its in the girl's best interests for advice to be given and that she understands the advice. Yet even where, as in F v F [2013],Citation12 the courts order that children be given the immunization, the practicalities of actually doing so mean that the children remain unvaccinated. Health professionals must be satisfied that the child understands: The necessity for immunization and the reasons for it; and. =g|2Gu %$kOnvKTLl~RKv(~x$zz-` fE2y1 fi+]TMjaULT:i m}jKUX*K-m}jy. and Wisbech AHA & DHSS in 1985, the young person will understand the professional's Fraser guidelines, on the other hand, are used specifically to decide if a child can consent to contraceptive or sexual health advice and treatment. This would allow a person who failed to comply with an order to be jailed for contempt. Any other browser may experience partial or no support. The form is based on the meaning of 'capacity' in section 14 of the Mental Health Act 2016. Never before has Gillick been extended to permit a mature child to make autonomous medical decisions over and above the curial 'parens patriae' power.In 2013, two judicial decisions promulgated from different Australian courts are in conflict over this most fundamental of questions. The so-called Fraser Guidelines (some people refer to assessing whether Adults, In Northern Ireland, although separate legislation applies, the then Department of Health and Social Services stated that there was no reason to suppose that the House of Lords decision would not be followed by the Northern Ireland courts. This matter was litigated because an activist, Victoria Gillick, ran an active campaign against the policy. What to do if the patient is in an abusive relationship. ; there . The psychological effect of having the decision overruled would have to be taken into account and would normally be an option only when the young person was thought likely to suffer grave and irreversible mental or physical harm. Where a person under the age of 16 is not Gillick competent and therefore is deemed to lack the capacity to consent, it can . Gillick's claim was ultimately dismissed after a lengthy legal battle but the case established a legal precedent. In late 2021, the Court of Appeal overturned Bell v Tavistock, as the clinics policies and practices had not been found to be unlawful. When prescribing contraception to children under 16 it is important to assess for coercion or pressure, for example coercion by an older partner. From these, and subsequent cases, it is suggested that although the parental right to veto treatment ends, parental powers do not terminate as suggested by Lord Scarman in Gillick. The standard is based on the 1985 judicial decision of the House of Lords with respect . When consenting children to medical treatment, the terms Gillick competence and Fraser guidelines are frequently used interchangeably despite there being a clear distinction between them. Includes the application of the information in the clinics. strictly prohibited. 3099067 Specialties tested include general practice, general medicine, general surgery, paediatrics, anaesthetics, adult psychiatry, and emergency . A number of enforcement measures are available to the court but these are at the discretion of the judge who will again need to balance the best interests of the child against the impact of any enforcement measure. Copyright 2023 Indeed the Court of Appeal ruled it essential that in hotly disputed cases the consent of both parents must be given before proceeding. The court will . [Consent] protects the [health professional] from claims by the litigious whether they acquire it from their patient, who may be a minor over the age of 16 or a Gillick competent child under that age, or from another person having parental responsibilities which include a right to consent to treatment of the minor. The ruling holds particularly significant implications for the legal rights of minor children in England in that it is broader in scope than merely medical consent. Consent is the legal expression of the moral principle of autonomy. Fraser guidelines are used specifically for children requesting contraceptive or sexual health advice and treatment. they often talk about whether the child is 'Gillick competent' or whether they meet the 'Fraser guidelines'. % You must always share child protection concerns with the relevant agencies, even if this goes against a child's wishes. 5 See Gillick v West Norfolk AHA [1986] AC 112, 189. Please note: Selecting permissions does not provide access to the full text of the article, please see our help page He also commented more generally on parents' versus children's rights: "parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision. What is the Age of Legal Capacity (Scotland) Act 1991? Start typing to see results or hit ESC to close, Three things required for consent to be valid, The ultimate responsibility for ensuring the patient is consented properly lies with the. Abstract. This was clarified Young person's 16 and 17 y old who are able to consent to treatment as if they were of full age.Citation4, The right of a child under 16 to consent to medical examination and treatment, including immunization was decided by the House of Lords in Gillick v West Norfolk and Wisbech AHA [1986] where a mother of girls under 16 objected to Department of Health advice that allowed doctors to give contraceptive advice and treatment to children without parental consent.Citation5 Their Lordships held that a child under 16 had the legal competence to consent to medical examination and treatment if they had sufficient maturity and intelligence to understand the nature and implications of that treatment.Citation5, Wheeler (2006) argues that something of an urban myth has emerged over the use of the term Gillick competence.Citation6 It suggests that Mrs Gillick wishes to disassociate her name from the assessment of children's capacity, thus carrying the implication that the objective test of a child's competence should be renamed the Fraser competence.