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 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. 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. Gillick competence is a functional ability to make a decision. it is in the young person's best interests to receive the advice, treatment or both without their parents' or carers' consent. "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. advice to a child; and Gillick competence refers to the ability of the child to give consent and is used more broadly. Although the two terms are frequently used together and originate from the same legal case, there are distinct differences between them. the Family Law Reform Act 1969 states: "The consent of a minor who Gillick competency can be used when young people wish to refuse medical treatment. Original; Landing; . should be fulfilled: guide to consulting with a sexually active child, This site is intended for healthcare professionals. 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. 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. they are Gillick competent, Fraser guidelines for prescription of contraceptives. Another chapter has opened in the tortured history of the status of Gillick competence. 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. 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. In Northern Ireland the Department of Health provides consent guides for healthcare professionals (Department of Health, 2003). 5 See Gillick v West Norfolk AHA [1986] AC 112, 189. 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. 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 competence is a functional ability to make a decision. 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]). TO SAY that Mrs Gillick was angry is an understatement. This was clarified Accepted author version posted online: 30 Nov 2015, Register to receive personalised research and resources by email. Treatment (Gillick Competence) Child and Youth form is an optional tool for documenting the outcome of a capacity assessment with a patient. These restrictions have yet to be tested in court. z#&,!Eh?_X Q*%20/Ud` !s4@KXA!20W.E-2eR5re@1cCk2W ~G Mental Health Matters. This first came into effect in England when Mrs. Gillick, a social activist filed a case with the Department of Health and . 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. It may also be interpreted as covering youth If under 16, is the patient Gillick competent? There is specific guidance for medical professionals on using Gillick competence - see case history and legislation. their own treatment. You must always share child protection concerns with the relevant agencies, even if a child or young person asks you not to. There is no lower age limit for Gillick competence or Fraser guidelines to be applied. 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. Your information helps us decide when, where and what to inspect. 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. 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'. Especially useful fo. 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. In this case, Silber J interestingly appeared to suggest that when a child becomes Gillick competent , their parents' Article 8 rights disappear in relation to the particular issue i.e. The degree of maturity and intelligence needed depends on the gravity of the decision. The ethics of adolescent medical decision-making is a fraught area for medical ethics because it deals with the threshold boundaries between childhood and adulthood and Gillick adds a burden upon children and adolescent patients that is unwarranted and through which damage is . a local authority or person with an . Feature: My child, my choice. If a child or young person needs confidential help and advice direct them to Childline. . << /Length 5 0 R /Filter /FlateDecode >> However, unlike adults, treatment refusal can be overridden in some circumstances (by person with parental responsibility or court). A patient under the age of 16 years can consent to medical treatment . 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. Young people also have the right to seek a second opinion from another medical professional (General Medical Council, 2020). Edinburgh: Scottish Executive. As cited in Childrens Legal Centre (1985) Landmark decision for childrens rights. >> /Font << /TT2 10 0 R /TT1 9 0 R >> /XObject << /Im1 11 0 R >> >> The understanding required for different interventions will vary, and capacity can also fluctuate such as in certain mental health conditions. endstream 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. 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). Children who are 16 years old and over can be expected to have capacity to consent to treatment. 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. However, in 1985 the House of Lords reversed the Court of Appeal judgement (Scarman, 1985). 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). It is probably the case that for a person between 16 and 18 years old consent young person is likely to begin, or to continue having, sexual intercourse with the young person is very likely to continue having sex with or without contraceptive treatment. However the Family Law Reform Act 1969 states: "The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, should be as effective as it would be if he were of full age; and . 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. In most jurisdictions the parent of an emancipated minor does not have the ability to consent to therapy, regardless of the Gillick test. 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. Gillick competence is concerned with determining a childs capacity to consent. Introduction. and judgement to enable them fully to understand what is proposed. This is because we have an overriding duty to act in the best interests of a child. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. may be obtained either from the parent or from the person themselves. In late 2021, the Court of Appeal overturned Bell v Tavistock, as the clinics policies and practices had not been found to be unlawful. In doing so they must, on balance, be satisfied that the child understands that there is a decision to be made and that decisions have consequences, also that the child understands the benefits and risks of immunization and the possible wider implications of receiving it against the wishes of their parents. you and provide you with the best service. A short film about the story behind Gillick Competence and Fraser Criteria. Brief guide: capacity and competence to consent in under 18s (PDF). However, if a young person refuses treatment which may lead to their death or severe permanent harm, their decision can be overruled. 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'. It is task specic so more complex procedures require greater lev-els of competence. Help for children and young people Applying Gillick competence and Fraser guidelines. 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. Consent for the medical treatment of patients under 18 years of age is generally provided by parents. Following a legal ruling in 2006, Fraser guidelines can also be applied to advice and treatment for sexually transmitted infections and the termination of pregnancy (Axton v The Secretary of State for Health, 2006). The so-called Fraser Guidelines (some people refer to assessing whether 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. ; If under 13, is the patient engaging in sexual activity? You should always encourage a child to tell their parents or carers about the decisions they are making. Registered charity in England and Wales (216401), Scotland (SC037717) and Jersey (384). The case is binding in England and Wales, and has been adopted to varying extents in Australia, Canada, and New Zealand. >> 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? 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. The courts do not adopt an unquestioning recommendation of immunization but give careful consideration to each case on its facts. This website is owned and operated by the Boot Camp & Military Fitness Institute. 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. has attained the age of sixteen years to any surgical, medical or dental treatment 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. ; Prescribing contraception to patients under 16 poses several ethical issues for doctors, not least managing the apparent conflict between patient confidentiality and parental rights. In some circumstances this may not be in the best interest of the young person. A licensed medical If a young person presents repeatedly about sexually transmitted infections or the termination of pregnancy this may be an indicator of. Fraser guidelines are applied specifically to advice and treatment that focuses on a young person's sexual health and contraception. If a Gillick-competent child consents to treatment, a parent cannot override that consent. Lord Scarmans test is generally considered to be the test of Gillick competency. It is not a question of neglect or abuse that would trigger child protection proceedings. It is not just an ability to choose . Re R (A minor) (Wardship Consent to Treatment). 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. These restrictions have yet to be the test of Gillick competence and Criteria! 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