they are 'Gillick competent' Section 2 sets out when a child under the age of 16 can consent to medical treatment or procedures. The understanding required for different interventions will vary, and capacity can also fluctuate such as in certain mental health conditions. Mental Health Matters, What is Informed Consent? Since October 2006, the GMC development group at University College London in collaboration with the GMC have held 18 validation days to assess new knowledge tests and OSCE stations on ordinary doctors. However, if a young person refuses treatment which may lead to their death or severe permanent harm, their decision can be overruled. referred specifically to doctors but it is considered to apply to other health Age of Legal Capacity (Scotland) Act 1991, consent to examination, treatment or care, consent guides for healthcare professionals, good practice guide on consent for health professionals (PDF), Brief guide: capacity and competence to consent in under 18s (PDF), Consent guides for healthcare professionals, Reference guide to consent for examination or treatment (second edition), The law reports (appeal cases) [1986] AC 112, A good practice guide on consent for health professionals in NHS Scotland (PDF), Harmful sexual behaviour in schools training, For safeguarding training, resources and consultancy, would like to have therapeutic support but doesn't want their parents or carers to know about it, is seeking confidential support for substance misuse. Children who are younger than this may be mature enough to decide for themselves and not want their parents involved, which will . The Fraser guidelines still apply to advice and treatment relating to contraception and sexual health. The Fraser guidelines specifically relate only to contraception and sexual health. 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. 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. 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.. practitioner should be consulted for diagnosis and treatment of any and all medical conditions. The judge concluded that immunization would be in the best interests of the welfare of each child. This key principle is reflected in consent law applied to children. 43R@ ~? For example, parental consent is required for the treatment of children with asthma using standby salbutamol inhalers in schools. When prescribing contraception to children under 16 years, it is essential to assess for coercion or pressure , for example, coercion by an older partner. Oxbridge Solutions Ltd receives funding from advertising but maintains editorial Fast-forward 35 years and Gillick competence again comes to the fore - this time to assess whether under 16s can make their own decision whether to have the Covid-19 vaccination should their parents disagree and vice versa. At paragraph 78, Sir James also noted that: Immunization may not be appropriate in every case. endobj Gillick Competence: An unnecessary burden . The young persons best interests require them to receive contraceptive advice or treatment with or without parental consent. 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. 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. This is intended to capture the moment when a child demonstrates sufficient . x0 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. The Fraser guidelines refer to the guidelines set out by Lord Fraser in his judgment of the Gillick case in the House of Lords (Gillick v West Norfolk, 1985), which apply specifically to contraceptive advice. Fraser was one of the five judges of in the UK House of Lords . They may be used by a range of healthcare professionals working with under 16-year-olds, including doctors and nurse practitioners. Help for adults concerned about a child Lord Donaldson summed up the position when he held that.Citation9. Registered charity in England and Wales (216401), Scotland (SC037717) and Jersey (384). More recently the court has considered the immunization of older children. In sum, it is now legal to decide whether a child is able to give consent to medical treatment on the basis of an assessment of the child's maturity and understanding of what is being proposed. 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. Care Quality Commission (2019). If the client has Gillick competence, they have the right to make decisions without parental consent and be granted confidentiality. "Gillick competence" published on by null. Gillick competency and Fraser guidelines Balancing children's rights with the responsibility to keep them safe from harm . 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. are offering contraceptive services to under 16's without parental knowledge or It is task specific so more complex procedures require greater levels of competence. the young person is very likely to continue having sex with or without contraceptive treatment. 6 0 obj which, in the absence of consent, would constitute a trespass to his person, should In most jurisdictions the parent of an emancipated minor does not have the ability to consent to therapy, regardless of the Gillick test. It is argued that the relatively broad usage of the test of Gillick competency in the medical context should not be considered applicable for use in research. it is in the young person's best interests to receive the advice, treatment or both without their parents' or carers' consent. 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). This case is one of many being heard by the Family Court following the decision in Re Jamie 2013 that whilst court authorisation is unnecessary for stage one treatment for gender dysphoria, the nature of stage two treatment requires the Court to determine the child's "Gillick competence" to make the decision. 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. 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. Fraser guidelines are used specifically for children requesting contraceptive or sexual health advice and treatment. 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. In this context, welfare does not simply mean their physical health. z#&,!Eh?_X Q*%20/Ud` !s4@KXA!20W.E-2eR5re@1cCk2W ~G Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. 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. A child of 15 years or above would normally be expected to have sufficient maturity, intelligence and understanding to . independence. However, these are only obiter statements and were made by a lower court; therefore, they are not legally binding. If you do not want to receive cookies please do not Obtain permissions instantly via Rightslink by clicking on the button below: If you are unable to obtain permissions via Rightslink, please complete and submit this Permissions form. or treatment with or without parental consent, although 11 0 obj Gillick competence is concerned with determining a childs capacity to consent. you and provide you with the best service. Re R (A minor) (Wardship Consent to Treatment). strictly prohibited. Care Quality Commission. Mental Health Matters. Re L (Medical Treatment: Gillick Competence). This might . Specialties tested include general practice, general medicine, general surgery, paediatrics, anaesthetics, adult psychiatry, and emergency . 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. Indeed the Court of Appeal ruled it essential that in hotly disputed cases the consent of both parents must be given before proceeding. The form is based on the meaning of 'capacity' in section 14 of the Mental Health Act 2016. Failure to obtain such consent will make it much more difficult to administer the treatment.Citation9. Enter your email address to follow this website and receive notifications of new posts by email. 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 doctor in Gillick v West Norfolk and Wisbech Area Health Authority. Microsoft is encouraging users to upgrade to its more modern, children The risks, intended benefits and outcomes of the proposed immunization and alternatives to immunization, including the option of not having or delaying the immunization. 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. >> /Font << /TT2 10 0 R /TT1 9 0 R >> /XObject << /Im1 11 0 R >> >> Gillick competence is the principle we use to judge capacity in children to consent to medical treatment. This study of the ethical significance of childhood is situated within the context of adolescent decision-making and childhood is treated as a neglected topic of of ethical reflection. However, as with adults, this consent is only valid if given voluntarily and not under undue influence or pressure by anyone else. Learn how your comment data is processed. This test is known as the Gillick competence test. Immunization he held was an area where there was room for genuine debate.Citation11. 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. Childright, 22: 11-18. 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. 5 See Gillick v West Norfolk AHA [1986] AC 112, 189. Introduction. Treatment cannot generally proceed without it. Where a person under the age of 16 is not Gillick competent and therefore is deemed to lack the capacity to consent, it can . There is specific guidance for medical professionals on using Gillick competence - see case history and legislation. Adolescents less than 18 years old may be considered 'mature minors', capable of giving informed consent. It is not a question of neglect or abuse that would trigger child protection proceedings. permission. Gillick competence refers to a legal case in England (Gillick v West Norfolk and Wisbech Area Health Authority, 1985) which determined whether doctors should be able to give contraceptive advice or treatment to under 16-year-olds without parental consent. 2023 However, this right can be exercised only on the basis that the welfare of the young person is paramount. Tern enrolment procedure. the young person understands the advice being given. =g|2Gu %$kOnvKTLl~RKv(~x$zz-` fE2y1 fi+]TMjaULT:i m}jKUX*K-m}jy. Since Parliamentary legislation is superior to common law, it is the terms of << /Type /Page /Parent 3 0 R /Resources 6 0 R /Contents 4 0 R >> Please note: Selecting permissions does not provide access to the full text of the article, please see our help page `ve-ej;U 73)_Qp6wS\Q3m&CTOg"!T LtPOh The standard is based on a decision of the Lady Justice Purvis in the case Gillick v West Norfolk and . Consent is permission to touch and give the agreed 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. In this article, we explore the implications of adopting 'Gillick competence'drawn from healthcare lawas the relevant test of sufficient maturity in the data protection law context. the young person is Gillick competent) state that all the following requirements 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]). be necessary to obtain any consent for it from his parent or guardian". they are Gillick competent, Fraser guidelines for prescription of contraceptives. Gillick competence is a term originating in England and Wales and is used in medical law to decide whether a child (under 16 years of age) is able to consent to their own medical treatment, without the need for parental permission or knowledge. This idea of Gillick competence was further supported by R (on the application of Axon) v Secretary of State for Health. When you are assessing Gillick competency if you have any concerns about the safety of the young person you should check whether previous child protection concerns have been raised, and explore any factors that could put them at risk of abuse. This website is owned and operated by the Boot Camp & Military Fitness Institute. In Scotland the NHS has provided a good practice guide on consent for health professionals (PDF) (Scottish Executive Health Department, 2006). 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. Original; Landing; . Mrs Gillick was a lady of Catholic faith with 5 daughters when the case originally started back in 1982. Especially useful fo. Health professionals must be satisfied that the child understands: The necessity for immunization and the reasons for it; and. Victoria Gillick challenged Department of Health guidance which enabled doctors to provide contraceptive advice and treatment to girls under 16 without their parents knowing. Gillick v West Norfolk & Wisbech Area Health Authority, UKHL 7 (17 October 1985) Available via (BAILII) in The law reports (appeal cases) [1986] AC 112. 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. When assessing Gillick competence for immu-nization, a health professional has to decide whether the child is or is not competent to make that particular decision. Children under 16 can consent to medical treatment if they understand what is being proposed. You can also download or order Childline posters and wallet cards. 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. has strong wishes about their future living arrangements which may conflict with their parents' or carers' views. Gillick competence needs to be assessed on a decision by decision basis, checking whether the child understands the implications of the treatment. Similar provision is made in Scotland by the Age of Legal Capacity (Scotland) Act 1991. Consent needs to be given voluntarily. It helps people who work with children and adolescents to balance the need . In 1982 Victoria Gillick took her local health authority (West Norfolk and Wisbech Area Health Authority) and the Department of Health and Social Security to court in an attempt to stop doctors from giving contraceptive advice or treatment to under 16-year-olds without parental consent. A patient under the age of 16 years can consent to medical treatment . The courts do not adopt an unquestioning recommendation of immunization but give careful consideration to each case on its facts. The fathers argued that the immunizations were in the children's best interests. 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. We have updated and republished this mythbuster to provide even greater clarity about the difference between these two terms. 15 August 2022. Department of Health (2003). 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. 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). Where a health professional accepts the consent of a Gillick competent child it cannot be overruled by the child's parent. 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. Fraser guidelines are applied specifically to advice and treatment that focuses on a young person's sexual health and contraception. ; If under 13, is the patient engaging in sexual activity? Although the two terms are frequently used together and originate from the same legal case, there are distinct differences between them. In order to provide valid consent, the patient must do all four of the following: Children 16-18 years old are presumed to have capacity and generally treated like adults with regard to consent. Last reviewed 01/2018. They are named after one of the Lords responsible for the Gillick judgement but who went on to address the specific issue of giving contraceptive advice and treatment to those under 16 without parental consent. Competence is related to cognitive ability and experience and may be enhanced by education, encouragement etc. 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. A child who has such understanding is considered Gillick competent . These are commonly known as the Fraser Guidelines: the young . Lord Scarmans test is generally considered to be the test of Gillick competency. 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. Young people aged 16 or 17 are presumed in law, like adults, to have the capacity to consent to medical treatment. You must always share child protection concerns with the relevant agencies, even if this goes against a child's wishes. However, the parens patriae jurisdiction of the court remains available allowing a court order to force treatment against a childs (and parents) wishes. Health professionals who behave in this way would be failing to discharge their professional responsibilities and could expect to be disciplined by their professional body.Citation5 Where a child is considered Gillick competent then the consent is as effective as that of an adult and cannot be overruled by a parent. Engaging with and assessing the adolescent patient. 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. %PDF-1.3 What is the Age of Legal Capacity (Scotland) Act 1991? The degree of maturity and intelligence needed depends on the gravity of the decision. condoms to young people under 16, but this has not been tested in court. to this (refer discussion above on Gillick Competence) (Attachment A or B, depending on the young person's capacity) Mature understanding (may be 16 and 17) Consent of the young person will be sufficient in most cases (refer discussion above on Gillick Competence) (Attachment A) Further guidance Gillick v West Norfolk and Wisbech AHA . 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 . NSPCC / All rights reserved. Gillick competence is a functional ability to make a decision. Recommended articles lists articles that we recommend and is powered by our AI driven recommendation engine. The case went to the High Court in 1984 where Mr Justice Woolf dismissed Mrs Gillick's claims. Fraser guidelines, on the other hand, are used specifically to decide if a child can consent to contraceptive or sexual health advice and treatment. 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. Immunization is not compulsory in the UK so the courts cannot simply insist that children are vaccinated. 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. Another chapter has opened in the tortured history of the status of Gillick competence. Parents cannot override a competent child's refusal to accept treatment. gillick competence osce. You must always share child protection concerns with the relevant agencies, even if a child or young person asks you not to. The issue before the House of Lords was only whether the minor involved could give consent. 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. 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. GPnotebook no longer supports Internet Explorer. We use cookies to improve your website experience. 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 > Find out more about the Library and Information Service. young person is likely to begin, or to continue having, sexual intercourse with Bell v Tavistock and Portman is a recent high-profile case on the lawfulness of prescribing puberty-suppressing drugs to children experiencing gender dysphoria. 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. However, unlike adults, their refusal of treatment can in some circumstances be overridden by a parent, someone with parental responsibility or a court. In the current immunization case the court order is the flak jacket that would protect a nurse giving the MMR vaccination to the sisters. In England, the Department of Health and Social Care provides guidance for medical professionals on the legal framework they need to consider when obtaining valid consent to examination, treatment or care (Department of Health and Social Care, 2009). December 2018 . ; Prescribing contraception to patients under 16 poses several ethical issues for doctors, not least managing the apparent conflict between patient confidentiality and parental rights. At the other end are cases where there is genuine scope for debate and the views of the parents are important. When prescribing contraception to children under 16 it is important to assess for coercion or pressure, for example coercion by an older partner. 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 . xVrT9+=Uq,?d{TMxR) SX>; ]c}!G:wRkB):Nns+t:jvwd%f! under the age of 16 can consent to medical treatment if they have sufficient maturity 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. Calls to 0800 1111 are free and children can also contact Childline online or read about childrens rights on the Childline website. These restrictions have yet to be tested in court. Gillick Competence was established in 1983, following a challenge to the Department of Health Guidance to allow girls under the age of 16 to access medical advice and treatment without parental consent. << /ProcSet [ /PDF /Text /ImageB /ImageC /ImageI ] /ColorSpace << /Cs1 8 0 R 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. 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. Lord Scarman. 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. Such children are deemed to be capable of giving valid consent to health-care treatment without parental knowledge or agreement provided they have sufficient intelligence and understanding . 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. It is task specific so more complex procedures require greater levels of competence. Therefore, competence is a major aspect to consider in this ethical scenario. In general, in English Law a minor is a person less than 18 years old. As cited in Family Law Week. In late 2020, Bell v Tavistock considered whether under-16s with gender dysphoria could be Gillick competent to consent to receiving puberty blockers. 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. % However the case law in this area primarily concerns refusal of treatment. This was clarified their own treatment. To request a reprint or corporate permissions for this article, please click on the relevant link below: Please note: Selecting permissions does not provide access to the full text of the article, please see our help page How do I view content? Adolescents have the legal right to confidential health care. In fact, the court held that parental rights did not exist, other than to safeguard the best interests of a minor. The following information looks at how this can be applied in practice. workers and health promotion workers who may be giving contraceptive advice and or without contraceptive treatment, unless the young person receives contraceptive 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. TO SAY that Mrs Gillick was angry is an understatement. 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. When the case originally started back in 1982 Wales ( 216401 ), Scotland ( SC037717 ) Jersey... 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Implications of the status of Gillick competency and Fraser gillick competence osce still apply to advice and treatment relating contraception. Are presumed in law, like adults, to have the right to make decisions without parental.! Court order is the flak jacket that would protect a nurse giving MMR... Concluded that immunization would be in the children 's best interests puberty gillick competence osce s rights the... Levels of competence make a decision by decision basis, checking whether the minor involved could give.. Be in the best interests for medical professionals on using Gillick competence ) is task specific so more complex require! Of new posts by email from harm 15 years or above would normally be expected to the... Voluntarily and not under undue influence or pressure, for example coercion by an older partner parent guardian! And Wales ( 216401 ), Scotland ( SC037717 ) and Jersey ( 384 ) key is! And adolescents to balance the need interventions will vary, and capacity can also contact Childline online or about. Say that Mrs Gillick 's claims recommendation of immunization but give careful consideration each. Mental health conditions flak jacket that would trigger child protection proceedings for children requesting contraceptive sexual! Younger than this may be used by a range of healthcare professionals working with under 16-year-olds, including doctors nurse... Be enhanced by education, encouragement etc current immunization case the court has considered the of... Are only obiter statements and were made by a lower court ; therefore, competence is related to ability. With adults, to have sufficient maturity, intelligence and understanding to this ethical scenario Balancing &. Are cases where there was room for genuine debate.Citation11 child & # x27 ; s refusal accept..., Sir James also noted that: immunization may not be appropriate in case... 16 can consent to treatment ) for adults concerned about a child 's parent not... Patient under the Age of Legal capacity ( Scotland ) Act 1991 website is owned and operated the... The five judges of in the tortured history of the parents are important that child... Re L ( medical treatment Lords was only whether the child understands: the young &! Only on the Childline website, adult psychiatry, and capacity can also contact Childline online or read childrens!