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 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. Structure Theory 2 minutes to read the case 5 minutes for the station 3 minutes for feedback . Brief guide: capacity and competence to consent in under 18s (PDF). Lord Fraser stated that a doctor should always encourage a girl aged under 16 to inform her parents or carers that she is seeking contraceptive advice (or allow the doctor to inform the parents or carers on her behalf). Subscribe to our weekly email keeping you up-to-date with all the developments in child protection policy, research, practice and guidance. Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. In general, in English Law a minor is a person less than 18 years old. 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. '2P@LH(21qTV5-.A \RT,2P|Hd 41 Fe2 Im^Xd@R/ 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. 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. Therefore each individual decision requires assessment of Gillick competence. 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. The court will . Typical positions of emancipation arise when the minor is married (R v D [1984] AC 778, 791) or in the military. These restrictions have yet to be tested in court. Gillick Competence: An unnecessary burden . This provides private law remedies to settle matters of parental responsibility concerning a child. Gillick competence is used to assess a child's capability to make and understand their decisions in a wider context. Treatment (Gillick Competence) Child and Youth form is an optional tool for documenting the outcome of a capacity assessment with a patient. This key principle is reflected in consent law applied to children. 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. This would allow a person who failed to comply with an order to be jailed for contempt. 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. The advice or treatment is in the young persons best interests. Another chapter has opened in the tortured history of the status of Gillick competence. 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. 11 0 obj Allan Gaw recounts the famous Gillick case and events leading up to a landmark decision on medical consent in children. Each station includes the following 3 components: Student instructions (the brief before beginning a station) Patient script (explaining the symptoms/signs the patient should report/demonstrate) Parents cannot override a competent child's refusal to accept treatment. If a child passes the Gillick test, he or she is considered Gillick competent to consent to that medical treatment or intervention. Gillick competence (gil-ik) n. a rule for judging 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. 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. However, in 1985 the House of Lords reversed the Court of Appeal judgement (Scarman, 1985). Gillick competence is the principle we use to judge capacity in children to consent to medical treatment. 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). 6 0 obj endobj Although the two terms are frequently used together and originate from the same legal case, there are distinct differences between them. Please note: Selecting permissions does not provide access to the full text of the article, please see our help page 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. "Gillick competence" published on by null. 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. 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. By closing this message, you are consenting to our use of cookies. 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. eZ4he~9tQq,go`q{PgJP2 5hj+220wp5H7PZBPd@Bd @Bh;Q7~D$ However, this right can be exercised only on the basis that the welfare of the young person is paramount. The so-called Fraser Guidelines (some people refer to assessing whether 3099067 Lord Scarmans test is generally considered to be the test of Gillick competency. 2K Yf0t 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. 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. Copyright We use cookies to improve your website experience. 1 We adopt the familiar medico-legal language of the 'mature minor'. . You must always share child protection concerns with the relevant agencies, even if a child or young person asks you not to. In this context, welfare does not simply mean their physical health. Mental Health Matters, What is Marions Case (1982)? 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. Where both parents and a Gillick competent child refuse then resorting to litigation is likely to be an ineffective approach. to apply to other treatments, including abortion, the Fraser guidelines 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. How do I view content? While Gillick competence does not simply arrive with puberty and it cannot simply be presumed that a child is Gillick competent, it is not an overly time consuming process when undertaken confidently and competently. Victoria Gillick challenged Department of Health guidance which enabled doctors to provide contraceptive advice and treatment to girls under 16 without their parents knowing. 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). defined as people over the age of 18, are usually regarded as competent to decide true /ColorSpace 8 0 R /SMask 13 0 R /BitsPerComponent 8 /Filter /FlateDecode 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. Young people aged 16 or 17 are presumed in law, like adults, to have the capacity to consent to medical treatment. << /Length 12 0 R /Type /XObject /Subtype /Image /Width 400 /Height 401 /Interpolate When prescribing contraception to children under 16 years, it is essential to assess for coercion or pressure , for example, coercion by an older partner. Bell v Tavistock and Portman is a recent high-profile case on the lawfulness of prescribing puberty-suppressing drugs to children experiencing gender dysphoria. Indeed the Court of Appeal ruled it essential that in hotly disputed cases the consent of both parents must be given before proceeding. Lord Scarman and Lord Fraser proposed slightly different tests (Lord Bridge agreed with both). The court rejected a claim that not granting parents a right to know whether their child had sought an abortion, birth control or contraception breached Article 8 of the European Convention on Human Rights. In most jurisdictions the parent of an emancipated minor does not have the ability to consent to therapy, regardless of the Gillick test. In practice both remedies are unlikely to be sanctioned as their impact on the child's welfare would be detrimental. You should always encourage a child to tell their parents or carers about the decisions they are making. The practically of giving a vaccine in the face of continued objection from these children is a real barrier to carrying out the court order. 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. Here consent provides a nurse giving immunization a flak jacket to protect them from litigation. Gillick competence needs to be assessed on a decision by decision basis, checking whether the child understands the implications of the treatment. For example, if a child or young person: Medical professionals need to consider Gillick competency if a young person under the age of 16 wishes to receive treatment without their parents' or carers' consent or, in some cases, knowledge. If a person aged 16 or 17 years or a Gillick-competent child refuses treatment that refusal Gillick competence is concerned with determining a childs capacity to consent. be necessary to obtain any consent for it from his parent or guardian". It changes depending on the nature of the medical decision, e.g. 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. > Find out more about the Library and Information Service. 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]). The judge concluded that immunization would be in the best interests of the welfare of each child. Underage sexual activity is a possible indicator of. Edinburgh: Scottish Executive. Accepted author version posted online: 30 Nov 2015, Register to receive personalised research and resources by email. This study of the implications of Gillick competence argues it is an unnecessary burden with an unethical foundation. Consent is the legal expression of the moral principle of autonomy. These are commonly known as the Fraser Guidelines: the young . This includes making sure its in the girl's best interests for advice to be given and that she understands the advice. Due to the unique specifics of that treatment, the High Court concluded that in such cases the answer will almost always be no, a priori. Courts cannot treat the matter as a case of significant harm to a child that would warrant state intervention under the Children Act 1989. It is not just an ability to choose . Applied tests for competence are wide-ranging and context dependent. You can also download or order Childline posters and wallet cards. Includes the application of the information in the clinics. << /Type /Page /Parent 3 0 R /Resources 6 0 R /Contents 4 0 R >> A refusal by 16 - 17 year olds is also not determinative and can be overridden by the court. Gillick competence is the principle we use to judge capacity in children to consent to medical treatment. People also read lists articles that other readers of this article have read. 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, the parens patriae jurisdiction of the court remains available allowing a court order to force treatment against a childs (and parents) wishes. In late 2021, the Court of Appeal overturned Bell v Tavistock, as the clinics policies and practices had not been found to be unlawful. the young person's physical or mental health or both are likely to suffer unless they receive the advice or 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. You must always share child protection concerns with the relevant agencies, even if this goes against a child's wishes. 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. and judgement to enable them fully to understand what is proposed. stream Adolescence is a transitional phase of growth and development between childhood and adulthood. In general, in English Law a minor is a person less than 18 years old. 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. 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'. The ruling established the term "Gillick competence" to describe whether a young person below the age of 16 is able to consent to . 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. We have also added a section about safeguarding concerns. The English Gillick case held that . Start typing to see results or hit ESC to close, Three things required for consent to be valid, The ultimate responsibility for ensuring the patient is consented properly lies with the. A different level of competence would be needed for having a small cut dressed compared . 947 Abstract. 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. 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. referred specifically to doctors but it is considered to apply to other health Our online and face-to-face training courses can help develop your understanding of how to protect children from abuse and safely recruit staff and volunteers to work with children: For further reading about Gillick competency and Fraser guidelines, search the NSPCC Library catalogueusing the keywords "Gillick competency" and "Fraser guidelines". 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. 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. 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. their ability to explain a rationale around their reasoning and decision making. The subsequent 1983 judgement set out criteria for establishing whether a child under 16 has the capacity to provide consent . This site uses Akismet to reduce spam. the young person is Gillick competent) state that all the following requirements In some circumstances this may not be in the best interest of the young person. 2 0 obj Children who are younger than this may be mature enough to decide for themselves and not want their parents involved, which will . Lord Fraser, offered a set of criteria which must apply when medical practitioners Any distribution or duplication of the information contained herein is 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. 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. 5 Howick Place | London | SW1P 1WG. Rather it is an ability to understand, where the child must recognize that there is a choice to be made and that choices have consequences and they must be willing, able and mature enough to make that choice. Health professionals must be satisfied that the child understands: The necessity for immunization and the reasons for it; and. 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. Date: 27 February 2018. Call us on 0808 800 5000 Did you know that with a free Taylor & Francis Online account you can gain access to the following benefits? It is lawful for doctors to provide contraceptive advice and treatment without parental consent providing certain criteria are met. O>Gr~AdBsSO2 Ee3P?N6Ih 5oWhP Ic1Pb^j'rv!WDK+.I{709J*ZlSxoqkw[76MXHRXu/\n?HE,Qg"@ 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. 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. 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. Introduction. 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. Consent needs to be given voluntarily. Lord Justice Thorpe viewed medical interventions as existing on a scale. It may also be interpreted as covering youth workers and health promotion workers who may be giving contraceptive advice and condoms to young people under 16, but this has not been tested in court. Department of Health (2003). 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 . Gillicks case involved a health departmental circular advising doctors on the contraception of minors (for this purpose, under 16s). When considering competence clinicians need to consider the child's: Understanding of relevant information. ; Patient confidentiality versus parental rights. Applying Gillick competence and Fraser guidelines. 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. This is because we have an overriding duty to act in the best interests of a child. TO SAY that Mrs Gillick was angry is an understatement. 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. condoms to young people under 16, but this has not been tested in court. strictly prohibited. Help for adults concerned about a child which, in the absence of consent, would constitute a trespass to his person, should Specialties tested include general practice, general medicine, general surgery, paediatrics, anaesthetics, adult psychiatry, and emergency . A short film about the story behind Gillick Competence and Fraser Criteria. Being aware of Gillick competence and Fraser guidelines is useful in a case like this. More information about this is available in the guidance for medical professionals in each UK nation - see case history and legislation. Of this article have read like adults, to have the capacity to contraceptive. That in hotly disputed cases the consent of both parents must be and... The nature of the Gillick test burden with gillick competence osce unethical foundation test, he or she is considered Gillick child. Resorting to litigation is likely to be given and that she understands the implications of the.... 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