The decisions In re R (1991) and Re W (1992) (especially Lord Donaldson) contradict the Gillick decision somewhat. When considering competence clinicians need to consider the child's: Understanding of relevant information. endstream Failure to obtain such consent will make it much more difficult to administer the treatment.Citation9. Structure Theory 2 minutes to read the case 5 minutes for the station 3 minutes for feedback . 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. The House of Lords focused on the issue of consent rather than a notion of parental rights or parental power. Incorporated by Royal Charter. The case went to the High Court in 1984 where Mr Justice Woolf dismissed Mrs Gillick's claims. Study Hub OSCE Sessions. 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. Browser Support However, in 1985 the House of Lords reversed the Court of Appeal judgement (Scarman, 1985). What is the Age of Legal Capacity (Scotland) Act 1991? professionals, including nurses. 2K Yf0t The Family Law Reform Act 1969 also gives the right to consent >> /Font << /TT2 10 0 R /TT1 9 0 R >> /XObject << /Im1 11 0 R >> >> If a young person under the age of 16 presents to a health care professional, then discloses a history raising safeguarding concerns: It is reasonable for the local authority or police to decide whether it is appropriate to inform the parents of the concerns raised. London: Department of Health and Social Care. Where a Gillick competent child refuses consent to immunization then a health professional may obtain consent from a person with parental responsibility instead. 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. Young people also have the right to seek a second opinion from another medical professional (General Medical Council, 2020). 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. Otherwise, someone with parental responsibility can consent for them. You must always share child protection concerns with the relevant agencies, even if this goes against a child's wishes. Gillick's claim was ultimately dismissed after a lengthy legal battle but the case established a legal precedent. 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. How do I view content? Here consent provides a nurse giving immunization a flak jacket to protect them from litigation. Registered charity in England and Wales (216401), Scotland (SC037717) and Jersey (384). Therefore, competence is a major aspect to consider in this ethical scenario. The young person will understand the professionals advice; The young person cannot be persuaded to inform their parents; The young person is likely to begin, or to continue having, sexual intercourse with or without contraceptive treatment; Unless the young person receives contraceptive treatment, their physical or mental health, or both, are likely to suffer; and. The risks, intended benefits and outcomes of the proposed immunization and alternatives to immunization, including the option of not having or delaying the immunization. Gillick competence is a functional ability to make a decision. The aim of Gillick competence is to reflect the transition of a child to adulthood. Fraser guidelines are applied specifically to advice and treatment that focuses on a young person's sexual health and contraception. 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. More recently the court has considered the immunization of older children. If the nurse's judgement is that attempting to give the immunization in the face of continued resistance from the child then it is open to the nurse to refuse to proceed at that time. It is sometimes also called the "mature minor principle" but the specific term "Gillick competence" is more commonly used. A refusal by 16 - 17 year olds is also not determinative and can be overridden by the court. the young person is very likely to continue having sex with or without contraceptive treatment. A relatively young child would have sufficient maturity and intelligence to be competent to consent to a plaster on a small cut. The Fraser guidelines still apply to advice and treatment relating to contraception and sexual health. 15 August 2022. Mental Health Matters, What is Marions Case (1982)? The Gillick competence doctrine is part of Australian case law (see, e.g., DoCS v Y [1999] NSWSC 644). `ve-ej;U 73)_Qp6wS\Q3m&CTOg"!T LtPOh Immunization he held was an area where there was room for genuine debate.Citation11. x0 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. 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. 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. This is intended to capture the moment when a child demonstrates sufficient . More information about this is available in the guidance for medical professionals in each UK nation - see case history and legislation. Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1984] Q.B. 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. In making his judgement the Law Lord, their ability to explain a rationale around their reasoning and decision making. Call us on 0116 234 7246 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. Immunization may not be appropriate in every case. In Scotland the NHS has provided a good practice guide on consent for health professionals (PDF) (Scottish Executive Health Department, 2006). 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. Lord Fraser, offered a set of criteria which must apply when medical practitioners A child who is deemed Gillick competent is able to prevent their parents viewing their medical records. Queensland. Care Quality Commission (2019). This will require an assessment on a case by case basis to determine if the child is Gillick competent. 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. Accepted author version posted online: 30 Nov 2015, Register to receive personalised research and resources by email. 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. Lord Donaldson summed up the position when he held that.Citation9. 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. The result of Gillick is that in England today, except in situations that are regulated otherwise by law, the legal right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own mind on the matter requiring decision. 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. 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. 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'. 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. If a child or young person needs confidential help and advice direct them to Childline. 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 Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. In F v F [2013] the High Court ordered that sisters aged 11 and 15 y must receive the MMR vaccine.Citation11 Mr Justice Sumner made it clear that although the case concerned a dispute between parents his only concern was for the best interests of the welfare of the children. these criteria specifically refer to contraception, the principles are deemed 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. As such, medical staff will not make a disclosure of medical records of a child who is deemed Gillick competent unless consent is manifest. Feature: My child, my choice. It is not a question of neglect or abuse that would trigger child protection proceedings. 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. Fraser guidelines are used specifically for children requesting contraceptive or sexual health advice and treatment. 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'. Gillick Competence. 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 . 'Gillick competence' refers to a young person under 16 with capacity to make any relevant decision. When prescribing contraception to children under 16 years, it is essential to assess for coercion or pressure , for example, coercion by an older partner. Engaging with and assessing the adolescent patient. 1 We adopt the familiar medico-legal language of the 'mature minor'. 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. However, where the same child refuses consent then they may obtain it from another person with parental responsibility who can consent to treatment on the child's behalf. 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. xVrT9+=Uq,?d{TMxR) SX>; ]c}!G:wRkB):Nns+t:jvwd%f! Gillick competence is therefore the correct term, still used by judges and health professionals, to identify children aged under 16 who have the legal competence to consent to immunization, providing they can demonstrate sufficient maturity and intelligence to understand and appraise the nature and implications of the proposed treatment, including the risks and alternative courses of actions. 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. 11 0 obj 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). Consent guides for healthcare professionals. This is known as being Gillick competent. Calls to 0800 1111 are free and children can also contact Childline online or read about childrens rights on the Childline website. A child who has such understanding is considered Gillick competent . 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. 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. Note though that consent to medical may be obtained either from the parent or from the person themselves. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. 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 . 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. 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. 2 0 obj We use cookies to improve your website experience. 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. 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. Applying Gillick competence and Fraser guidelines. p/ This test is known as the Gillick competence test. To a more limited extent, 16 and 17 year-olds can also take medical decisions independently of their parents. However, this right can be exercised only on the basis that the welfare of the young person is paramount. 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. Recommended articles lists articles that we recommend and is powered by our AI driven recommendation engine. As cited in Childrens Legal Centre (1985) Landmark decision for childrens rights. 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. The understanding required for different interventions will vary, and capacity can also fluctuate such as in certain mental health conditions. Under the Family Proceedings Rules 1991 a penal notice may be attached to a specific issues order. Treatment cannot generally proceed without it. Care Quality Commission. 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. Section 2 sets out when a child under the age of 16 can consent to medical treatment or procedures. young person is likely to begin, or to continue having, sexual intercourse with 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. Help for children and young people These restrictions have yet to be tested in court. When it comes to sexual health, those under 13 are not legally able to consent to any sexual activity, and therefore any information that such a person was sexually active would need to be acted on, regardless of the results of the Gillick test. The issue before the House of Lords was only whether the minor involved could give consent. endobj Gillick Competence. ; Patient confidentiality versus parental rights. Competence is related to cognitive ability and experience and may be enhanced by education, encouragement etc. 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. Edinburgh: Scottish Executive. stream The advice or treatment is in the young persons best interests. a local authority or person with an . Consent here was considered in the broad sense of consent to battery or assault: in the absence of patient consent to treatment, a doctor, even if well-intentioned, might be sued/charged. %PDF-1.3 Find out more about how to recognise when a child has experienced abuse, and how to respond if a child discloses abuse to you. This form provides a structured method for obtaining evidence of the patient's capacity to > Find out more about the Library and Information Service. Includes the application of the information in the clinics. This idea of Gillick competence was further supported by R (on the application of Axon) v Secretary of State for Health. 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. Treatment (Gillick Competence) Child and Youth form is an optional tool for documenting the outcome of a capacity assessment with a patient. Bell v Tavistock and Portman is a recent high-profile case on the lawfulness of prescribing puberty-suppressing drugs to children experiencing gender dysphoria. Let's make care better together. 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. ; there . 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) 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. 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. If a child passes the Gillick test, he or she is considered Gillick competent to consent to that medical treatment or intervention. Campaigner Molly Kingsley, who had co-founded the campaign group UsForThem over the issue, warned that Were vaccination of children to happen on school premises without fully respecting the need for parental consent it would really prejudice parents trust in schools. Epidemiologist and SAGE member John Edmunds said that if we allow infection just to run through the population, thats a lot of children who will be infected and that will be a lot of disruption to schools in the coming months. Gillick competence refers to the fact that some children under the age of 16 are able to give consent. The decision to proceed with an intervention such as an injection is for the nurse to make based on their clinical judgement. 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. 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. An interesting aside to the Fraser guidelines is that many[weasel words] regard Lord Scarmans judgment as the leading judgement in the case, but because Lord Frasers judgement was shorter and set out in more specific terms and in that sense more accessible to health and welfare professionals it is his judgement that has been reproduced as containing the core principles, as for example cited in the RCOG circular. 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. 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 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. 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. Failure to obtain the co-operation of the children will make it very difficult to safely give the MMR. 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. Abstract. 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? virtue of this section given an effective consent to any treatment it shall not Adults, For safeguarding training, resources and consultancy When practitioners are trying to decide whether a child is mature enough to make decisions about things that affect them, they often talk about whether the child is 'Gillick competent' or whether they meet the 'Fraser guidelines'. That would trigger child protection proceedings about our use of cookies and how you can your!, what is Marions case ( 1982 ) our AI driven recommendation engine the MMR child sufficient... And sexual health advice and treatment relating to contraception and sexual health and Social Security 1984! 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