This lack of authority reflects that the reported cases have all involved minors who have been found to be incompetent, and that Australian courts will make decisions in the parens patriae jurisdiction regardless of Gillick competence. Incorporated by Royal Charter. Develop the safeguarding skills, knowledge and competencies required for Level 4 healthcare professionals. Therefore each individual decision requires assessment of Gillick competence. 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. ; there . However, this right can be exercised only on the basis that the welfare of the young person is paramount. 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). > 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". Lord Scarman and Lord Fraser proposed slightly different tests (Lord Bridge agreed with both). Mental Health Matters. under the age of 16 can consent to medical treatment if they have sufficient maturity The case is binding in England and Wales, and has been adopted to varying extents in Australia, Canada, and New Zealand. If under 16, is the patient Gillick competent? 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 is known as being Gillick competent. 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. Lord Donaldson stressed that consent also has a second equally important clinical purpose: The clinical purpose (of consent) stems from the fact that in many instances the co-operation of the patient, and the patient's faith or at least confidence in the efficacy of the treatment, is a major factor contributing to the treatment's success. the young person understands the advice being given. 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. 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. He held that there are a small group of decisions to be made about a child that require the agreement of both parents; these include changing a child's surname, sterilisation and circumcision. GP mythbuster 8: Gillick competency and Fraser guidelines, differences between Gillick competence and Fraser guidelines, Wheeler R (2006) Gillick or Fraser? useGPnotebook. Where a Gillick competent child refuses consent to immunization then a health professional may obtain consent from a person with parental responsibility instead. Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. Mental Health Matters, What is Informed Refusal? 2(1) and 3(1) Mental Capacity Act 2005. What is Gillick competence? Brief guide: capacity and competence to consent in under 18s (PDF). 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 . Your information helps us decide when, where and what to inspect. Usually, when a parent wants to overrule a young persons decision to refuse treatment, health professionals will apply to the courts for a final decision. If a child passes the Gillick test, he or she is considered Gillick competent to consent to that medical treatment or intervention. Adolescents have the legal right to confidential health care. Mental Health Matters, What is Informed Consent? &Ed@ Scottish Executive Health Department (2006). ; If under 13, is the patient engaging in sexual activity? stream 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. Last reviewed 01/2018. BMJ, Gillick v West Norfolk & Wisbech AHA & DHSS [1983] 3 WLR (QBD), Axon, R (on the application of) v Secretary of State for Health [2006] EWHC 37 (Admin), He/she has sufficient maturity and intelligence to understand the nature and implications of the proposed treatment, He/she cannot be persuaded to tell her parents or to allow the doctor to tell them, He/she is very likely to begin or continue having sexual intercourse with or without contraceptive treatment, His/her physical or mental health is likely to suffer unless he/she received the advice or treatment. Registered charity in England and Wales (216401), Scotland (SC037717) and Jersey (384). 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. In 1983 the judgement from this case laid out criteria for establishing whether a child under has the capacity to provide consent to treatment; the so-called Gillick test. Gillick sought a declaration that prescribing contraception was illegal because the doctor would commit an offence of encouraging sex with a minor and that it would be treatment without consent as consent vested in the parent; she was unsuccessful before the High Court of Justice, but succeeded in the Court of Appeal. Feature: My child, my choice. 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. 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? Gillick Competence: An unnecessary burden . This key principle is reflected in consent law applied to children. Legal competence to make decisions is conditional on the child gradually acquiring both: That takes account of the child's experiences and the child's ability to manage influences on their decision making such as information, peer pressure, family pressure, fear and misgivings. has strong wishes about their future living arrangements which may conflict with their parents' or carers' views. '2P@LH(21qTV5-.A \RT,2P|Hd 41 Fe2 Im^Xd@R/ independence. 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. condoms to young people under 16, but this has not been tested in court. 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. 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. z#&,!Eh?_X Q*%20/Ud` !s4@KXA!20W.E-2eR5re@1cCk2W ~G 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. By closing this message, you are consenting to our use of cookies. The decision to proceed with an intervention such as an injection is for the nurse to make based on their clinical judgement. 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. Another chapter has opened in the tortured history of the status of Gillick competence. Applied tests for competence are wide-ranging and context dependent. It is sometimes also called the "mature minor principle" but the specific term "Gillick competence" is more commonly used. 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'. they are Gillick competent, Fraser guidelines for prescription of contraceptives. 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. Gillick competence is a functional ability to make a decision. A relatively young child would have sufficient maturity and intelligence to be competent to consent to a plaster on a small cut. 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. This is because we have an overriding duty to act in the best interests of a child. 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. 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. 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. The decisions In re R (1991) and Re W (1992) (especially Lord Donaldson) contradict the Gillick decision somewhat. [Accessed 02/02/2020]. The standard is based on the 1985 judicial decision of the House of Lords with respect . The United Nations Convention on Children's Rights (UNCRC; 1989) defines a child as any person under 18; however, by convention British courts refer to all persons under 18 as minors, those under 16 as children and 16 and 17 y olds as young persons.Citation2 The UNCRC requires that childhood is recognized as a developmental period and that our domestic laws must be developed in a manner consistent with the evolving capacities of the child (United Nations 1989, Article 5).Citation2 As children grow and develop in maturity, their views and wishes must be given greater weight and their development toward adulthood must be respected and promoted. The rule in Gillick must be applied when determining whether a child under 16 has competence to consent. Immunization may not be appropriate in every case. 2 0 obj 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. It is up to the doctor to decide whether the child has the maturity and intelligence to fully understand the nature of the treatment, the options, the risks involved and the benefits. 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. We use cookies to improve your website experience. Although people with parental responsibility were generally free to act alone when making decisions for their children this freedom was not unfettered. However, patient autonomy is not absolute, which will be an important part of this answer. 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. Browser Support 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 . 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). 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. 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 courts do not adopt an unquestioning recommendation of immunization but give careful consideration to each case on its facts. 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. advice to a child; and Gillick competence refers to the ability of the child to give consent and is used more broadly. Help for children and young people 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. Lord Donaldson summed up the position when he held that.Citation9. Being aware of Gillick competence and Fraser guidelines is useful in a case like this. Where a person under the age of 16 is not Gillick competent and therefore is deemed to lack the capacity to consent, it can . As such, medical staff will not make a disclosure of medical records of a child who is deemed Gillick competent unless consent is manifest. Axton v The Secretary of State for Health (The Family Planning Association: intervening) (2006) EWHC 37. If you do not want to receive cookies please do not Where both parents and a Gillick competent child refuse then resorting to litigation is likely to be an ineffective approach. in England and Wales by the House of Lords in the case of Gillick vs West Norfolk Tern enrolment procedure. Indeed the Court of Appeal ruled it essential that in hotly disputed cases the consent of both parents must be given before proceeding. At one end there are the obvious cases where parental objection would have no value in child welfare terms, for example urgent lifesaving treatment such as a blood transfusion. 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. Bell v Tavistock and Portman is a recent high-profile case on the lawfulness of prescribing puberty-suppressing drugs to children experiencing gender dysphoria. 08/12/20. Re W (A minor) (Medical treatment court's jurisdiction). Mrs Gillick was a lady of Catholic faith with 5 daughters when the case originally started back in 1982. 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. How do I view content? The common law recognises that a child or young person may . 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. be necessary to obtain any consent for it from his parent or guardian". endobj Accepted author version posted online: 30 Nov 2015, Register to receive personalised research and resources by email. their ability to explain a rationale around their reasoning and decision making. 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. The judge concluded that neither child was competent due to the influence of the mother on their beliefs about immunization.Citation12, In Re B (Child) [2003] the Court of Appeal accepted that, in general, there is wide scope for parental objection to medical intervention. Although the original question was around the use of contraception, the ruling covers a child's own medical treatment without their parents . young person is likely to begin, or to continue having, sexual intercourse with 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. You must always share child protection concerns with the relevant agencies, even if this goes against a child's wishes. Call Childline on 0800 1111, Weston House, 42 Curtain Road, London, EC2A 3NH. 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 Fraser guidelines specifically relate only to contraception and sexual health. In early September 2021, guidance circulated to NHS trusts stated that most 12- to 15-year-olds should be deemed Gillick competent to provide [their] own consent to be vaccinated against COVID-19, despite the JCVI fail[ing] to recommend Covid-19 vaccines for healthy 12- to 15-year-olds. And Lord Fraser proposed slightly different tests ( Lord Bridge agreed with both ) of child. W ( a minor ) ( especially Lord Donaldson ) contradict the Gillick test, he or is. Applied when determining whether a child or young person may ) EWHC 37 will an... To a plaster on a small cut to that medical treatment court 's )... 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