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. Consent needs to be given voluntarily. It is task specic so more complex procedures require greater lev-els of competence. Mental Health Matters, What is Marions Case (1982)? 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. 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. professional clinical judgement when diagnosing or treating any medical condition. Lord Justice Thorpe viewed medical interventions as existing on a scale. 6 0 obj The Fraser guidelines specifically relate only to contraception and sexual health. Gillicks case involved a health departmental circular advising doctors on the contraception of minors (for this purpose, under 16s). 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 . Yet even where, as in F v F [2013],Citation12 the courts order that children be given the immunization, the practicalities of actually doing so mean that the children remain unvaccinated. ", > Find out more about assessing Gillick competency. Gillick competency can be used when young people wish to refuse medical treatment. 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. Engaging with and assessing the adolescent patient. 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. Failure to obtain the co-operation of the children will make it very difficult to safely give the MMR. 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 the other end are cases where there is genuine scope for debate and the views of the parents are important. Introduction. Where a person under the age of 16 is not Gillick competent and therefore is deemed to lack the capacity to consent, it can be given on their behalf by someone with parental responsibility or by the court. 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. stream Otherwise, someone with parental responsibility can consent for them. Help for children and young people 5 Howick Place | London | SW1P 1WG. Where a competent child under 16 refuses a specific treatment which is in their best interests, but the parents support the . The English Gillick case held that . 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. Call us on 0116 234 7246 There is no lower age limit for Gillick competence or Fraser guidelines to be applied. The Fraser guidelines apply specifically to advice and treatment about contraception and sexual health. 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. Treatment cannot generally proceed without it. the Family Law Reform Act 1969 states: "The consent of a minor who should be fulfilled: guide to consulting with a sexually active child, This site is intended for healthcare professionals. 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. To a more limited extent, 16 and 17 year-olds can also take medical decisions independently of their parents. There are no potential conflicts of interest. However, unlike adults, treatment refusal can be overridden in some circumstances (by person with parental responsibility or court). 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. The case went to the High Court in 1984 where Mr Justice Woolf dismissed Mrs Gillick's claims. be as effective as it would be if he were of full age; and where a minor has by 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. We use cookies to improve your website experience. However The content herein is provided for informational purposes and does not replace the need to apply Under the Family Proceedings Rules 1991 a penal notice may be attached to a specific issues order. However, patient autonomy is not absolute, which will be an important part of this answer. 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. 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'. Immunization he held was an area where there was room for genuine debate.Citation11. 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. treatment can be given by a child under the age of 16 if s/he is 'Gillick competent'. The judge concluded that immunization would be in the best interests of the welfare of each child. The child of tender years who rely on a person with parental responsibility to consent to treatment. '2P@LH(21qTV5-.A \RT,2P|Hd 41 Fe2 Im^Xd@R/ under the age of 16 can consent to medical treatment if they have sufficient maturity At paragraph 78, Sir James also noted that: useGPnotebook. If the client has Gillick competence, they have the right to make decisions without parental consent and be granted confidentiality. . Fraser was one of the five judges of in the UK House of Lords . virtue of this section given an effective consent to any treatment it shall not 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. Incorporated by Royal Charter. Courts cannot treat the matter as a case of significant harm to a child that would warrant state intervention under the Children Act 1989. The right to decide on competence must not be used as a license to disregard the wishes of parents whenever the health professional finds it convenient to do so. `ve-ej;U 73)_Qp6wS\Q3m&CTOg"!T LtPOh What to do if the patient is in an abusive relationship. the young person is very likely to continue having sex with or without contraceptive treatment. This key principle is reflected in consent law applied to children. It changes depending on the nature of the medical decision, e.g. This provides private law remedies to settle matters of parental responsibility concerning a child. 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. and judgement to enable them fully to understand what is proposed. >> /Font << /TT2 10 0 R /TT1 9 0 R >> /XObject << /Im1 11 0 R >> >> It is considered good practice for doctors and other health professionals to follow the criteria outlined by Lord Fraser in 1985 in the House of Lords' ruling in the case of Victoria Gillick v West Norfolk and Wisbech Health Authority and Department of Health and Social Security. Section 2 sets out when a child under the age of 16 can consent to medical treatment or procedures. 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.. Assessment of Gillick competence requires an examination of how the child deals with the process of making a decision based on an analysis of the child's ability to understand and assess risks. may be obtained either from the parent or from the person themselves. 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. Young people aged 16 or 17 are presumed in law, like adults, to have the capacity to consent to medical treatment. 'Gillick competence' refers to a young person under 16 with capacity to make any relevant decision. advice, the young person cannot be persuaded to inform their parents, the advice to a child; and Gillick competence refers to the ability of the child to give consent and is used more broadly. In late 2020, Bell v Tavistock considered whether under-16s with gender dysphoria could be Gillick competent to consent to receiving puberty blockers. 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. We have updated and republished this mythbuster to provide even greater clarity about the difference between these two terms. ; Patient confidentiality versus parental rights. The degree of maturity and intelligence needed depends on the gravity of the decision. What is the Age of Legal Capacity (Scotland) Act 1991? It is argued that Gillick competence is an unnecessary burden with an unethical foundation. the young person understands the advice being given. Lord Donaldson summed up the position when he held that.Citation9. Later she had a total of 10 children. 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. The age of the children was significant in this case. The advice or treatment is in the young persons best interests. Sisters must receive MMR vaccine, court rules, Immunization, Safeguarding or Parental Choice, Medicine, Dentistry, Nursing & Allied Health. Gillick competence is a functional ability to make a decision. The case is binding in England and Wales, and has been adopted to varying extents in Australia, Canada, and New Zealand. A good practice guide on consent for health professionals in NHS Scotland (PDF). Typical positions of emancipation arise when the minor is married (R v D [1984] AC 778, 791) or in the military. 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. 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. 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. 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. As cited in Family Law Week. Accepted author version posted online: 30 Nov 2015, Register to receive personalised research and resources by email. This is because we have an overriding duty to act in the best interests of a child. 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. 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. He said:"it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.". It is not just an ability to choose where the child recognizes that there is a choice to be made and is willing to make it. By confusing them, we lose crucial details necessary for obtaining consent. defined as people over the age of 18, are usually regarded as competent to decide 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. We recommend using one of the following browsers: Chrome, Firefox, Edge, Safari. 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. In Scotland, the Age of Legal Capacity (Scotland) Act 1991 sets out when children have the legal capacity to make decisions. In Northern Ireland the Department of Health provides consent guides for healthcare professionals (Department of Health, 2003). ; If under 13, is the patient engaging in sexual activity? 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. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. "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. It is sometimes also called the "mature minor principle" but the specific term "Gillick competence" is more commonly used. Find out more about how to recognise when a child has experienced abuse, and how to respond if a child discloses abuse to you. There is no doubt that a key barrier generally to immunisation in this age group is the reliance on parental consent before proceeding. 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. 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. 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. Treatment (Gillick Competence) Child and Youth form is an optional tool for documenting the outcome of a capacity assessment with a patient. From these, and subsequent cases, it is suggested that although the parental right to veto treatment ends, parental powers do not terminate as suggested by Lord Scarman in Gillick. 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 . It is task specific so more complex procedures require greater levels of competence. The following information looks at how this can be applied in practice. 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]). 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