In practice both remedies are unlikely to be sanctioned as their impact on the child's welfare would be detrimental. Immunization may not be appropriate in every case. Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 (17 October 1985) 2016 In-text: (Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 (17 October 1985), 2016) The rule in Gillick must be applied when determining whether a child under 16 has competence to consent. may be obtained either from the parent or from the person themselves. >> Edinburgh: Scottish Executive. 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. The Fraser guidelines apply specifically to advice and treatment about contraception and sexual health. 2023 PA_IK_08. Where a health professional accepts the consent of a Gillick competent child it cannot be overruled by the child's parent. Young people also have the right to seek a second opinion from another medical professional (General Medical Council, 2020). Young people aged 16 or 17 are presumed in law, like adults, to have the capacity to consent to medical treatment. Note though that consent to medical The judge concluded that immunization would be in the best interests of the welfare of each child. Immunization he held was an area where there was room for genuine debate.Citation11. The risks, intended benefits and outcomes of the proposed immunization and alternatives to immunization, including the option of not having or delaying the immunization. 5 See Gillick v West Norfolk AHA [1986] AC 112, 189. If the health professional giving the immunisation felt a child was not Gillick competent then the consent of someone with parental responsibility would be sought. On 21 May 2009, confusion arose between Gillick competence, which identifies under-16s with the capacity to consent to their own treatment, and the Fraser guidelines, which are concerned only with contraception and focus on the desirability of parental involvement and the risks of unprotected sex in that area. The Australian High Court gave specific and strong approval for the Gillick decision in Marions Case, Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 189. This paper looks at the issue of consent from children and whether the test of Gillick competency, applied in medical and healthcare practice, ought to extend to participation in research. You can also download or order Childline posters and wallet cards. Gillick competence: A UK term of art referring to the competence of a child under the age of 16 to consent to his/her own medical care, without the need for parental permission. A patient under the age of 16 years can consent to medical treatment . Original; Landing; . Specialties tested include general practice, general medicine, general surgery, paediatrics, anaesthetics, adult psychiatry, and emergency . 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. 2K Yf0t Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. Care Quality Commission. Gillick competence = assesses whether a child is competent Patients between the ages of 16 to 18 are assumed to be competent and can give consent Where a person under the age of 16 is not Gillick competent and therefore is deemed to lack the capacity to consent, it can . Adolescents have the legal right to confidential health care. 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. In complex medical cases, such as those involving disagreements about treatment, you may wish to seek the opinion of a colleague about a childs capacity to consent (Care Quality Commission, 2019). The degree of maturity and intelligence needed depends on the gravity of the decision. We have updated and republished this mythbuster to provide even greater clarity about the difference between these two terms. The vaccines minister appears to be arguing that this barrier can be overcome by taking consent from the child under the rule in Gillick (Gillick v West Norfolk and Wisbech AHA [1986]). 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. 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. Our online and face-to-face training courses can help develop your understanding of how to protect children from abuse and safely recruit staff and volunteers to work with children: For further reading about Gillick competency and Fraser guidelines, search the NSPCC Library catalogueusing the keywords "Gillick competency" and "Fraser guidelines". In making his judgement the Law Lord, However, patient autonomy is not absolute, which will be an important part of this answer. Date: 27 February 2018. However, unlike adults, treatment refusal can be overridden in some circumstances (by person with parental responsibility or court). Consent is essential to the propriety of treatment and is necessary to meet the requirements of the law. 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 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. endobj Find out more about how to recognise when a child has experienced abuse, and how to respond if a child discloses abuse to you. Children who are younger than this may be mature enough to decide for themselves and not want their parents involved, which will . Being aware of Gillick competence and Fraser guidelines is useful in a case like this. Section 2 sets out when a child under the age of 16 can consent to medical treatment or procedures. Lr52 Y&(?~B?"2b`B)Q 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. Call us on 0808 800 5000 The Geeky Medics bank of 700+ OSCE stations provides everything you need to practise your clinical skills and prepare for your OSCEs. Any other browser may experience partial or no support. condoms to young people under 16, but this has not been tested in court. A short film about the story behind Gillick Competence and Fraser Criteria. The subsequent 1983 judgement set out criteria for establishing whether a child under 16 has the capacity to provide consent . Incorporated by Royal Charter. Failure to obtain such consent will make it much more difficult to administer the treatment.Citation9. 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. This form provides a structured method for obtaining evidence of the patient's capacity to The means by which to assess legal capacity in children under the age of 16 years, established in the case Gillick v West Norfolk and Wisbech Area Health Authority (1985) 2 A11 ER 402. Lord Fraser stated that a doctor should always encourage a girl aged under 16 to inform her parents or carers that she is seeking contraceptive advice (or allow the doctor to inform the parents or carers on her behalf). Gillick competence is a functional ability to make a decision. Fraser guidelines are used specifically for children requesting contraceptive or sexual health advice and treatment. This might . As cited in Family Law Week. 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. Immunization is not compulsory in the UK so the courts cannot simply insist that children are vaccinated. In law, a person's 18th birthday draws the line between childhood and adulthood (Children Act 1989 s105) - so in health care matters, an 18 year old enjoys as much autonomy as any other adult. Enter your email address to follow this website and receive notifications of new posts by email. ", > Find out more about assessing Gillick competency. In 1985, Mrs Gillick brought her concerns regarding guidance on contraceptive advice and treatment for girls under the age of 16 to the courts. independence. To a more limited extent, 16 and 17 year-olds can also take medical decisions independently of their parents. Children under the age of 16 can consent to their own treatment if they're believed to have enough intelligence, competence and understanding to fully appreciate what's involved in their treatment. It may also be interpreted as covering youth workers and health promotion workers who may be giving contraceptive advice and condoms to young people under 16, but this has not been tested in court. The issue before the House of Lords was only whether the minor involved could give consent. Includes the application of the information in the clinics. 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. It is not just an ability to choose . Calls to 0800 1111 are free and children can also contact Childline online or read about childrens rights on the Childline website. 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. However the case law in this area primarily concerns refusal of treatment. When assessing Gillick competence for immunization, a health professional has to decide whether the child is or is not competent to make that particular decision. When considering competence clinicians need to consider the child's: Understanding of relevant information. When practitioners are trying to decide whether a child is mature enough to make decisions, they often talk about whether the child is 'Gillick competent' or whether they Since Parliamentary legislation is superior to common law, it is the terms of Copyright 2023 % Health professionals must be confident in assessing a child's Gillick competence in order to ensure that the child's rights are respected, this requires the health professional to evaluate the child's maturity and intelligence when seeking consent to immunization. NSPCC / All rights reserved. If a person under the age of 18 refuses to consent to treatment, it is possible in some cases for their parents or the courts to overrule their decision. Although the judgment in the House of Lords referred specifically to doctors, it is considered by the Royal College of Obstetricians and Gynaecologists (RCOG) to apply to other health professionals, including general practitioners, gynaecologists, nurses, and practitioners in community contraceptive clinics, sexual health clinics and hospital services. "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. What is the Age of Legal Capacity (Scotland) Act 1991? More information about this is available in the guidance for medical professionals in each UK nation - see case history and legislation. Sexual activity with a child under 13 should always result in a child protection referral. Gillick competence is a functional ability to make a decision. A good practice guide on consent for health professionals in NHS Scotland (PDF). He required that a child could consent if he or she fully understood the medical treatment that is proposed: As a matter of law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed. It is task specific so more complex procedures require greater levels of competence. 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. To ensure the site functions as intended, please Accepted author version posted online: 30 Nov 2015, Register to receive personalised research and resources by email. However, this right can be exercised only on the basis that the welfare of the young person is paramount. There is no express authority in Australia on In re R and Re W, so whether a parents right terminates is unclear. professionals, including nurses. It is not a question of neglect or abuse that would trigger child protection proceedings. Gillick competence is used to assess a child's capability to make and understand their decisions in a wider context. Therefore, competence is a major aspect to consider in this ethical scenario. The understanding required for different interventions will vary, and capacity can also fluctuate such as in certain mental health conditions. Consent guides for healthcare professionals. Therefore each individual decision requires assessment of Gillick competence. A child who has such understanding is considered Gillick competent . Care Quality Commission (2019). Bell v Tavistock and Portman is a recent high-profile case on the lawfulness of prescribing puberty-suppressing drugs to children experiencing gender dysphoria. This will require an assessment on a case by case basis to determine if the child is Gillick competent. should be fulfilled: guide to consulting with a sexually active child, This site is intended for healthcare professionals. 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 is a very important concept in the area of consent to surgical treatment - if a doctor doesn't have a valid consent from either a parent or the child, or . parents' Article 8 rights do not . 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. Mental Health Matters, What is Informed Refusal? It is probably the case that for a person between 16 and 18 years old consent This test is known as the Gillick competence test. However, as with adults, this consent is only valid if given voluntarily and not under undue influence or pressure by anyone else. > Find out more about recognising and responding to abuse. The courts have so far declined invitations to define rigidly Gillick competence and the individual doctor is free to make a decision, consulting peers if this may be helpful, as to whether that child is Gillick competent. Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1984] Q.B. 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. Gillick competence (gil-ik) n. a rule for judging legal capacity in children under the age of 16 years, established in the case Gillick v West Norfolk and Wisbech Area Health Authority (1985) 2 A11 ER 402. But if she cannot be persuaded to do so they can proceed to give contraceptive advice and treatment as long as certain conditions are met. Learn how your comment data is processed. Allan Gaw recounts the famous Gillick case and events leading up to a landmark decision on medical consent in children. Another chapter has opened in the tortured history of the status of Gillick competence. Typical positions of emancipation arise when the minor is married (R v D [1984] AC 778, 791) or in the military. defined as people over the age of 18, are usually regarded as competent to decide Decision making competence does not simply arrive with puberty; it depends on the maturity and intelligence of the child and the seriousness of the treatment decision to be made. endobj 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. At 11 and 15 y the judge was obliged to consider whether they were Gillick competent, in that they had the maturity and intelligence to refuse the MMR vaccine. However, if a young person refuses treatment which may lead to their death or severe permanent harm, their decision can be overruled. > 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". However, where parents are in dispute with each other over an issue of parental responsibility, that can include disagreement over immunization, then if negotiation fails they can go to court to resolve the matter. Gillick competence needs to be assessed on a decision by decision basis, checking whether the child understands the implications of the treatment. The standard is based on a decision of the Lady Justice Purvis in the case Gillick v West Norfolk and . However, in 1985 the House of Lords reversed the Court of Appeal judgement (Scarman, 1985). The term has since been more widely used to help assess whether a child has the maturity to make their own decisions and to understand the . the child's age, maturity and mental capacity, their understanding of the issue and what it involves - including advantages, disadvantages and potential long-term impact, their understanding of the risks, implications and consequences that may arise from their decision, how well they understand any advice or information they have been given, their understanding of any alternative options, if available. Kennedy & Grubb (1998) argue that children pass through 3 developmental stages on their journey to becoming an autonomous adult.Citation3. 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. If you don't think a child is Gillick competent or there are inconsistencies in their understanding, you should seek consent from their parents or carers before proceeding. 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. In general, in English Law a minor is a person less than 18 years old. 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. Children's capacity to consent may be affected by different factors, for example stress, mental health conditions and the complexities of the decision they are making. If the client has Gillick competence, they have the right to make decisions without parental consent and be granted confidentiality. strictly prohibited. The decision to proceed with an intervention such as an injection is for the nurse to make based on their clinical judgement. The fathers argued that the immunizations were in the children's best interests. It does not compel nurses to provide the treatment. Mental Health Matters, What is the Mature Minor Doctrine? When prescribing contraception to children under 16 it is important to assess for coercion or pressure, for example coercion by an older partner. The Family Law Reform Act 1969 also gives the right to consent 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 . 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. How do I view content? However, the parens patriae jurisdiction of the court remains available allowing a court order to force treatment against a childs (and parents) wishes. =g|2Gu %$kOnvKTLl~RKv(~x$zz-` fE2y1 fi+]TMjaULT:i m}jKUX*K-m}jy. However There is no doubt that a key barrier generally to immunisation in this age group is the reliance on parental consent before proceeding. It is task specific so more complex procedures require greater levels of competence. treatment, their physical or mental health, or both, are likely to suffer, the young person's best interests require them to receive contraceptive advice The courts do not adopt an unquestioning recommendation of immunization but give careful consideration to each case on its facts. ; If under 13, is the patient engaging in sexual activity? << /Length 12 0 R /Type /XObject /Subtype /Image /Width 400 /Height 401 /Interpolate There is no lower age limit for Gillick competence or Fraser guidelines to be applied. 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. Gillick Competence. 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. Queensland. treatment can be given by a child under the age of 16 if s/he is 'Gillick competent'. Fraser guidelines originally just related to contraceptive advice and treatment but, following a case in 2006, they now apply to decisions about treatment for sexually transmitted infections and termination of pregnancy. That takes account of the child's understanding, ability to weigh risk and benefit, consideration of longer term factors such as effect on family life and on such things as schooling. Consent for the medical treatment of patients under 18 years of age is generally provided by parents. 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. 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). The two girls lived with their respective mothers. Hum Vaccin Immunother. eZ4he~9tQq,go`q{PgJP2 5hj+220wp5H7PZBPd@Bd @Bh;Q7~D$ Lord Scarmans test is generally considered to be the test of Gillick competency. Anyone who gives him consent may take it back, but the [health professional] only needs one and so long as they continue to have one they have the legal right to proceed.Citation9. 15 August 2022. 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. 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