If the young person still wants to go ahead without their parents' or carers' knowledge or consent, you should consider the Gillick and Fraser guidelines. Queensland. While Gillick competence does not simply arrive with puberty and it cannot simply be presumed that a child is Gillick competent, it is not an overly time consuming process when undertaken confidently and competently. 2(1) and 3(1) Mental Capacity Act 2005. The same child may be considered Gillick competent to make one decision but not competent to make a different decision. Gillick competency and Fraser guidelines help people who work with children to balance the need to listen to children's wishes with the responsibility to keep them safe. Call Childline on 0800 1111, Weston House, 42 Curtain Road, London, EC2A 3NH. We have updated and republished this mythbuster to provide even greater clarity about the difference between these two terms. under the age of 16 can consent to medical treatment if they have sufficient maturity Childright, 22: 11-18. Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. The case went to the High Court in 1984 where Mr Justice Woolf dismissed Mrs Gillick's claims. It is a high test of competence that is more difficult to satisfy the more complex the treatment and its outcomes become. 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. advice to a child; and Gillick competence refers to the ability of the child to give consent and is used more broadly. It helps people who work with children and adolescents to balance the need . Their fathers made an application to the court seeking the immunization of their children. The degree of maturity and intelligence needed depends on the gravity of the decision. To a more limited extent, 16 and 17 year-olds can also take medical decisions independently of their parents. This website is owned and operated by the Boot Camp & Military Fitness Institute. As cited in Family Law Week. Oxbridge Solutions Ltd. As Gillick was decided ultimately in the House of Lords 2, its authority extends to Scotland as well as to other parts of the UK. This idea of Gillick competence was further supported by R (on the application of Axon) v Secretary of State for Health. A plea for consistency over competence in children. Re R (A minor) (Wardship Consent to Treatment). In Scotland the NHS has provided a good practice guide on consent for health professionals (PDF) (Scottish Executive Health Department, 2006). x0 The Court of Appeal reversed this decision, but in 1985 it went to the House of Lords and the Law Lords (Lord Scarman, Lord Fraser and Lord Bridge) ruled in favour of the original judgment delivered by Mr Justice Woolf: "whether or not a child is capable of giving the necessary consent will depend on the child's maturity and understanding and the nature of the consent required. 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. The court will . 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. Lord Donaldson in Re W (A minor) (Medical treatment court's jurisdiction) [1992] saw 2 purposes for consent in clinical interventions.Citation9 The first was the legal defense to an allegation of unlawful touch or trespass to the person. It is task specific so more complex procedures require greater levels of competence. Gillick Competence. > Find out more about using the Fraser guidelines, Lord Scarman's comments in his judgment of the Gillick case in the House of Lords (Gillick v West Norfolk, 1985) are often referred to as the test of "Gillick competency". A refusal by 16 - 17 year olds is also not determinative and can be overridden by the court. Gillick competence needs to be assessed on a decision by decision basis, checking whether the child understands the implications of the treatment. Care Quality Commission (2019). << /Length 5 0 R /Filter /FlateDecode >> 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. Gillick Competence is a legal state where a person under 16 years old is considered to have "the degree of maturity and intelligence needed" to consent to a treatment2. Includes the application of the information in the clinics. 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 United Nations Convention on the Rights of the Child requires that the evolving capacities of children are respected and this requirement is reflected in the law of consent where a child with the necessary maturity and intelligence can give valid consent to examination or treatment.Citation2. Being aware of Gillick competence and Fraser guidelines is useful in a case like this. 5 See Gillick v West Norfolk AHA [1986] AC 112, 189. To date no court has found a child in need of life sustaining treatment competent to refuse that treatment.Citation8. Feature: My child, my choice. Lord Justice Thorpe viewed medical interventions as existing on a scale. 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. Engaging with and assessing the adolescent patient. Consent is permission to touch and give the agreed treatment. Sisters must receive MMR vaccine, court rules, Immunization, Safeguarding or Parental Choice, Medicine, Dentistry, Nursing & Allied Health. When prescribing contraception to children under 16 it is important to assess for coercion or pressure, for example coercion by an older partner. Although a question of private law rather than state intervention into family life, the courts are still obliged to follow the provisions of the Children Act 1989 and consider the best interests of the welfare of that child. The circular stated that the prescription of contraception was a matter for the doctors discretion and that they could be prescribed to under-16s without parental consent. A child of 15 years or above would normally be expected to have sufficient maturity, intelligence and understanding to . has strong wishes about their future living arrangements which may conflict with their parents' or carers' views. Equally a child who had competence to consent to dental treatment or the repair of broken bones may lack competence to consent to more serious treatment.Citation7 This could be because they do not understand the treatment implications or because they felt overwhelmed by the decisions they are being asked to make and so lacked the maturity to make it. Consent needs to be given voluntarily. Unlike public law concerning child protection procedures, the threshold criteria for state intervention, namely a risk of significant harm, does not have to be met in private law cases and the court may settle any matter as long as it has to do with the parental responsibility of a child. 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. Re L (Medical Treatment: Gillick Competence). Health professionals must be satisfied that the child understands: The necessity for immunization and the reasons for it; and. Introduction. Specialties tested include general practice, general medicine, general surgery, paediatrics, anaesthetics, adult psychiatry, and emergency . 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. 'Gillick competence' refers to a young person under 16 with capacity to make any relevant decision. Gillick competency and Fraser guidelines Balancing children's rights with the responsibility to keep them safe from harm . upgrade your browser. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent" (Gillick v West Norfolk, 1984). Victoria D. M. Gillick (ne Gudgeon; born 1946, in Hendon) is a British activist and campaigner best known for the eponymous 1985 UK House of Lords ruling that considered whether contraception could be prescribed to under-16s without parental consent or knowledge. and Wisbech AHA & DHSS in 1985, the young person will understand the professional's A child who is deemed Gillick competent is able to prevent their parents viewing their medical records. We use cookies to improve your website experience. This mythbuster clarifies the principles, laws and guidelines used when we assess childrens ability to make decisions about their treatment, as well as the differences between Gillick competence and Fraser guidelines. Registered charity in England and Wales (216401), Scotland (SC037717) and Jersey (384). Gillick competence is a term originating in England and Wales and is used in medical law to decide whether a child (a person under 16 years of age) is able to consent to their own medical treatment, without the need for parental permission or knowledge.. 16 - 17 year olds, by virtue of section 8 of the Law Reform Act 1969 are conclusively presumed to be Gillick competent and the test of Gillick competence is bypassed and has no relevance. It changes depending on the nature of the medical decision, e.g. You can also download or order Childline posters and wallet cards. There is specific guidance for medical professionals on using Gillick competence - see case history and legislation. Children who are 16 years old and over can be expected to have capacity to consent to treatment. Edinburgh: Scottish Executive. A patient under the age of 16 years can consent to medical treatment . In late 2021, the Court of Appeal overturned Bell v Tavistock, as the clinics policies and practices had not been found to be unlawful. In Northern Ireland the Department of Health provides consent guides for healthcare professionals (Department of Health, 2003). Gillick competence refers to the recognition that the capacity of a child to make serious decisions about his or her life will increase as does the age and understanding of that child. Consent for the medical treatment of patients under 18 years of age is generally provided by parents. More information about this is available in the guidance for medical professionals in each UK nation - see case history and legislation. > Find out more about recognising and responding to abuse. However, there is still a duty to keep the childs best interests at the heart of any decision, and the child or young person should be involved in the decision-making process as far as possible. Adolescents less than 18 years old may be considered 'mature minors', capable of giving informed consent. 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. condoms to young people under 16, but this has not been tested in court. Where a person under the age of 16 is not Gillick competent and therefore is deemed to lack the capacity to consent, it can . The Current Position: Gillick Competence: Who may give consent to the medical treatment of a child:-A child over the age of 16 (S, Family Law Reform . It does not compel nurses to provide the treatment. Alternatively the court could direct enforcement by arranging for the removal of the child by an officer of the court for the forcible administration of the immunization. Childhood immunization was considered by the High Court.Citation10 and subsequently by the Court of Appeal.Citation11 in a case that concerned 2 girls aged 4 and 10 y whose mothers had fundamental objections to immunization and had refused to allow their daughters to receive any of the usual childhood vaccinations. However, there are circumstances in which patients under the age of 18 can consent to their own medical treatment. However, unlike adults, treatment refusal can be overridden in some circumstances (by person with parental responsibility or court). Your information helps us decide when, where and what to inspect. If a person aged 16 or 17 years or a Gillick-competent child refuses treatment that refusal Sufficient time for the assessment must be allowed by the health professional who needs to be satisfied that a child has fully understood the nature and consequences of the proposed immunization and is mature enough to take account of broader health and social factors when making their decision. practitioner should be consulted for diagnosis and treatment of any and all medical conditions. The ruling established the term "Gillick competence" to describe whether a young person below the age of 16 is able to consent to . That said, it would rarely be appropriate or safe for a child less than 13 years of age to consent to treatment without a parents involvement. There is no set of defined questions to assess Gillick competency. Last reviewed 01/2018. What to do if the patient is in an abusive relationship. Assessment of Gillick competence requires an examination of how the child deals with the process of making a decision based on an analysis of the child's ability to understand and assess risks. Scottish Executive Health Department (2006). Gillick competence for children under 16 years old, Children under 16 years old can consent to medical treatment (but not necessarily refuse treatment) if they have sufficient maturity and judgement to enable them to fully understand what is proposed i.e. referred specifically to doctors but it is considered to apply to other health independence. =g|2Gu %$kOnvKTLl~RKv(~x$zz-` fE2y1 fi+]TMjaULT:i m}jKUX*K-m}jy. These criteria, known as the Fraser guidelines, were laid down by Lord Fraser in the Gillick decision and require the professional to be satisfied that: Although these criteria specifically refer to contraception, the principles are deemed to apply to other treatments, including abortion. The age of the children was significant in this case. London: Department of Health and Social Care. How do I view content? the young person cannot be persuaded to inform their parents or carers that they are seeking this advice or treatment (or to allow the practitioner to inform their parents or carers). There is no doubt that a key barrier generally to immunisation in this age group is the reliance on parental consent before proceeding. Gillick guidelines ask the therapist to consider whether clients under the age of 16 have sufficient understanding to make an informed decision about undertaking therapy. defined as people over the age of 18, are usually regarded as competent to decide The term "Gillick competence" comes from a landmark English case where the courts first recognised that a minor might be competent to make decisions without parental consent. As cited in Childrens Legal Centre (1985) Landmark decision for childrens rights. Any other browser may experience partial or no support. This small group he said now included hotly disputed immunization.Citation11, Despite the granting of an order by the High Court it is known that practical difficulties have, to date, prevented the giving of the vaccine to the children in the F v F [2013] case (Hickey 2013).Citation12,13. If under 16, is the patient Gillick competent? A licensed medical They may be used by a range of healthcare professionals working with under 16-year-olds, including doctors and nurse practitioners. Register a free Taylor & Francis Online account today to boost your research and gain these benefits: College of Human and Health Science; Swansea University; Swansea, Wales, UK, Convention on the rights of the child adopted under general assembly resolution 44/25, Section 8; mental capacity act 2005, section 1, Gillick or Fraser? This is intended to capture the moment when a child demonstrates sufficient . Consent is essential to the propriety of treatment and is necessary to meet the requirements of the law. As of May 2016, it appeared to Funston and Howard that some recent legislation worked explicitly to restrict the ability of Gillick competent children to consent to medical treatment outside of clinical settings. Care Quality Commission. The standard is based on the 1985 judicial decision of the House of Lords with respect to a case of the contraception advice given by an NHS . `ve-ej;U 73)_Qp6wS\Q3m&CTOg"!T LtPOh 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. ; Patient confidentiality versus parental rights. Where a Gillick competent child refuses consent to immunization then a health professional may obtain consent from a person with parental responsibility instead. It is task specific so more complex procedures require greater levels of competence. It was found that Gillick did not apply directly to the issues before the court in this case but there is useful commentary and discussion in the judgement regarding the use of Gillick competence. Alteration of an established legal test would be unusual, and cause confusion and following correspondence with Victoria Gillick, Wheeler is clear that she has never suggested to anyone, publicly or privately, that [she] disliked being associated with the term Gillick competent.Citation6. A persistent rumour arose that Victoria Gillick disliked having her name associated with the assessment of childrens capacity, but an editorial in the BMJ from 2006 claimed that Gillick said that she has never suggested to anyone, publicly or privately, that [she] disliked being associated with the term Gillick competent'. 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 in the young person's best interests to receive the advice, treatment or both without their parents' or carers' consent. 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. 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. Immunization is voluntary and generally it is for those who have parental responsibility for a child or children who are Gillick competent to decide on immunization. >> /Font << /TT2 10 0 R /TT1 9 0 R >> /XObject << /Im1 11 0 R >> >> Gillick Competence: An unnecessary burden . This first came into effect in England when Mrs. Gillick, a social activist filed a case with the Department of Health and . The ethics of adolescent medical decision-making is a fraught area for medical ethics because it deals with the threshold boundaries between childhood and adulthood and Gillick adds a burden upon children and adolescent patients that is unwarranted and through which damage is . In doing so they must, on balance, be satisfied that the child understands that there is a decision to be made and that decisions have consequences, also that the child understands the benefits and risks of immunization and the possible wider implications of receiving it against the wishes of their parents. workers and health promotion workers who may be giving contraceptive advice and This key principle is reflected in consent law applied to children. or without contraceptive treatment, unless the young person receives contraceptive A good practice guide on consent for health professionals in NHS Scotland (PDF). However, these are only obiter statements and were made by a lower court; therefore, they are not legally binding. Lord Scarman and Lord Fraser proposed slightly different tests (Lord Bridge agreed with both). The House of Lords focused on the issue of consent rather than a notion of parental rights or parental power. Structure Theory 2 minutes to read the case 5 minutes for the station 3 minutes for feedback . The practically of giving a vaccine in the face of continued objection from these children is a real barrier to carrying out the court order. This article considers the requirements for Gillick competence, it highlights the factors that must be considered when determining whether a child is competent to give consent to treatment. 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. However, the parens patriae jurisdiction of the court remains available allowing a court order to force treatment against a childs (and parents) wishes. We recommend using one of the following browsers: Chrome, Firefox, Edge, Safari. %PDF-1.3 For example, if a child or young person: Medical professionals need to consider Gillick competency if a young person under the age of 16 wishes to receive treatment without their parents' or carers' consent or, in some cases, knowledge. Treatment cannot generally proceed without it. Gillick competence is used to assess a child's capability to make and understand their decisions in a wider context. It is essential that health professionals are able to identify who can give consent on behalf of a child and how to determine whether a child has the competence to make a decision about receiving immunization themselves. their ability to explain a rationale around their reasoning and decision making. This will require an assessment on a case by case basis to determine if the child is Gillick competent. Children under 16 may be considered 'Gillick competent' to make treatment decisions, but may need to demonstrate this. The Gillick standard arose from the High Court's decision in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL), which is binding in the . stream Brief guide: capacity and competence to consent in under 18s (PDF). 15 August 2022. Obtaining consent for immunization becomes more complex where parental responsibility and the developmental concept of Gillick competence become intertwined as the child matures to adulthood. Mental Health Matters, What is Informed Consent? 5 0 obj In Queensland, a child can consent to a vaccination if they have the capacity to give or withhold consent. By confusing them, we lose crucial details necessary for obtaining consent. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. these criteria specifically refer to contraception, the principles are deemed It underpins the propriety of the treatment and furnishes a defense to the crime of battery and civil wrong of trespass.Citation1 It must be obtained before an immunization can proceed. There is no lower age limit for Gillick competence or Fraser guidelines to be applied. A child who has such understanding is considered Gillick competent . << /Type /Page /Parent 3 0 R /Resources 6 0 R /Contents 4 0 R >> It is sometimes also called the "mature minor principle" but the specific term "Gillick competence" is more commonly used. If the conditions are not all met, however, or there is reason to believe that the child is under pressure to give consent or is being exploited, there would be grounds to break confidentiality. 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