Be careful that you don't mix up these two terms. It is not just an ability to choose . Edinburgh: Scottish Executive. 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. 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.. A child of 15 years or above would normally be expected to have sufficient maturity, intelligence and understanding to . 2 0 obj a local authority or person with an . Cited by lists all citing articles based on Crossref citations.Articles with the Crossref icon will open in a new tab. workers and health promotion workers who may be giving contraceptive advice and Adolescence is a transitional phase of growth and development between childhood and adulthood. 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. Microsoft is encouraging users to upgrade to its more modern, children As Gillick was decided ultimately in the House of Lords 2, its authority extends to Scotland as well as to other parts of the UK. 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. In late 2020, Bell v Tavistock considered whether under-16s with gender dysphoria could be Gillick competent to consent to receiving puberty blockers. Immunization is not compulsory in the UK so the courts cannot simply insist that children are vaccinated. practitioner should be consulted for diagnosis and treatment of any and all medical conditions. To ensure the site functions as intended, please Any other browser may experience partial or no support. 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. 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. the young person understands the advice being given. 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. Care Quality Commission (2019). The risks, intended benefits and outcomes of the proposed immunization and alternatives to immunization, including the option of not having or delaying the immunization. Another chapter has opened in the tortured history of the status of Gillick competence. 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. eZ4he~9tQq,go`q{PgJP2 5hj+220wp5H7PZBPd@Bd @Bh;Q7~D$ The Australian High Court gave specific and strong approval for the Gillick decision in Marions Case, Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 189. the young person's physical or mental health or both are likely to suffer unless they receive the advice or treatment. Gillicks case involved a health departmental circular advising doctors on the contraception of minors (for this purpose, under 16s). Re R (A minor) (Wardship Consent to Treatment). 581. However Call us on 0808 800 5000 Gillick v West Norfolk and . 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. which, in the absence of consent, would constitute a trespass to his person, should Gillick competence needs to be assessed on a decision by decision basis, checking whether the child understands the implications of the treatment. << /Type /Page /Parent 3 0 R /Resources 6 0 R /Contents 4 0 R >> This was clarified 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. A licensed medical You should always encourage a child to tell their parents or carers about the decisions they are making. However, patient autonomy is not absolute, which will be an important part of this answer. Mental Health Matters, What is the Mature Minor Doctrine? 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. 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. Copyright 2023 That said, it would rarely be appropriate or safe for a child less than 13 years of age to consent to treatment without a parents involvement. 'Gillick competence' refers to a young person under 16 with capacity to make any relevant decision. Feature: My child, my choice. In Northern Ireland the Department of Health provides consent guides for healthcare professionals (Department of Health, 2003). In practice both remedies are unlikely to be sanctioned as their impact on the child's welfare would be detrimental. ", > Find out more about assessing Gillick competency. Section 2 sets out when a child under the age of 16 can consent to medical treatment or procedures. For more information, please visit our Permissions help page. 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. This is known as an assessment of 'Gillick competency'. 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. 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. Please note: Selecting permissions does not provide access to the full text of the article, please see our help page Failure to obtain such consent will make it much more difficult to administer the treatment.Citation9. 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. Mental Health Matters, What is Informed Refusal? For safeguarding training, resources and consultancy The fathers argued that the immunizations were in the children's best interests. It is task specific so more complex procedures require greater levels of competence. 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. 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. Brief guide: capacity and competence to consent in under 18s (PDF). The young persons best interests require them to receive contraceptive advice or treatment with or without parental consent. 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 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. The Fraser guidelines still apply to advice and treatment relating to contraception and sexual health. Gillick competence is the principle we use to judge capacity in children to consent to medical treatment. 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. Young people also have the right to seek a second opinion from another medical professional (General Medical Council, 2020). strictly prohibited. How do I view content? Courts cannot treat the matter as a case of significant harm to a child that would warrant state intervention under the Children Act 1989. Gillick competence refers to the fact that some children under the age of 16 are able to give consent. If a Gillick-competent child consents to treatment, a parent cannot override that 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). 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 . 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 . In Scotland, the Age of Legal Capacity (Scotland) Act 1991 sets out when children have the legal capacity to make decisions. 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. Sufficient time for the assessment must be allowed by the health professional who needs to be satisfied that a child has fully understood the nature and consequences of the proposed immunization and is mature enough to take account of broader health and social factors when making their decision. 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. 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. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. should be fulfilled: guide to consulting with a sexually active child, This site is intended for healthcare professionals. 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. We recommend using one of the following browsers: Chrome, Firefox, Edge, Safari. What is Gillick competence? PA_IK_08. 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. If a child or young person needs confidential help and advice direct them to Childline. There is no set of defined questions to assess Gillick competency. Tern enrolment procedure. 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. A good practice guide on consent for health professionals in NHS Scotland (PDF). At paragraph 78, Sir James also noted that: The rule in Gillick must be applied when determining whether a child under 16 has competence to consent. in England and Wales by the House of Lords in the case of Gillick vs West Norfolk Therefore, competence is a major aspect to consider in this ethical scenario. 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. The Family Law Reform Act 1969 also gives the right to consent 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. 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. The ruling holds particularly significant implications for the legal rights of minor children in England in that it is broader in scope than merely medical consent. Adolescents have the legal right to confidential health care. A short film about the story behind Gillick Competence and Fraser Criteria. 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. 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. 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. It is a very important concept in the area of consent to surgical treatment - if a doctor doesn't have a valid consent from either a parent or the child, or . In general, in English Law a minor is a person less than 18 years old. Gillick competence is the principle we use to judge capacity in children to consent to medical treatment. Incorporated by Royal Charter. 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. It is probably the case that for a person between 16 and 18 years old consent 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 subsequent 1983 judgement set out criteria for establishing whether a child under 16 has the capacity to provide consent . 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. The standard is based on a decision of the Lady Justice Purvis in the case Gillick v West Norfolk and . Oxbridge Solutions Ltd. The Geeky Medics bank of 700+ OSCE stations provides everything you need to practise your clinical skills and prepare for your OSCEs. {1XeJ v'cjt]aVfD9q$|rd[gNTM-P(Y"RUUbl{ U>CA%q\6h4; This case is one of many being heard by the Family Court following the decision in Re Jamie 2013 that whilst court authorisation is unnecessary for stage one treatment for gender dysphoria, the nature of stage two treatment requires the Court to determine the child's "Gillick competence" to make the decision. 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. 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. defined as people over the age of 18, are usually regarded as competent to decide More information about this is available in the guidance for medical professionals in each UK nation - see case history and legislation. 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. Gillick Competence. 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. Lr52 Y&(?~B?"2b`B)Q Subscribe to our weekly email keeping you up-to-date with all the developments in child protection policy, research, practice and guidance. &Ed@ We recommend using one of the following browsers: Chrome, Firefox, Edge, Safari. This key principle is reflected in consent law applied to children. It is not just There is specific guidance for medical professionals on using Gillick competence - see case history and legislation. In this context, welfare does not simply mean their physical health. Victoria Gillick challenged Department of Health guidance which enabled doctors to provide contraceptive advice and treatment to girls under 16 without their parents knowing. > Find out more about recognising and responding to abuse. If the client has Gillick competence, they have the right to make decisions without parental consent and be granted confidentiality. you and provide you with the best service. You must always share child protection concerns with the relevant agencies, even if this goes against a child's wishes. Otherwise, someone with parental responsibility can consent for them. 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. Kennedy & Grubb (1998) argue that children pass through 3 developmental stages on their journey to becoming an autonomous adult.Citation3. It is a high test of competence that is more difficult to satisfy the more complex the treatment and its outcomes become. Gillick Competence is a legal state where a person under 16 years old is considered to have "the degree of maturity and intelligence needed" to consent to a treatment2. 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. Immunization may not be appropriate in every case. This idea of Gillick competence was further supported by R (on the application of Axon) v Secretary of State for Health. In some circumstances this may not be in the best interest of the young person. 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. referred specifically to doctors but it is considered to apply to other health 43R@ ~? This includes making sure its in the girl's best interests for advice to be given and that she understands the advice. Date: 27 February 2018. 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. This small group he said now included hotly disputed immunization.Citation11, Despite the granting of an order by the High Court it is known that practical difficulties have, to date, prevented the giving of the vaccine to the children in the F v F [2013] case (Hickey 2013).Citation12,13. Gillick v West Norfolk and Wisbech Area Health Authority went to the House of Lords and is often used as a legal precedent across the UK. 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. 5 See Gillick v West Norfolk AHA [1986] AC 112, 189. 3099067 This site uses Akismet to reduce spam. Queensland. 2K Yf0t Note though that consent to medical z#&,!Eh?_X Q*%20/Ud` !s4@KXA!20W.E-2eR5re@1cCk2W ~G Mental Health Matters, What is Informed Consent? In a landmark case, Victoria Gillick challenged Department of Health Guidance which enabled doctors to provide contraceptive advice and treatment to girls under 16 without their parents' knowledge. The Axon case set out a list of criteria that a doctor must meet when deciding whether to provide treatment to an under-16 child without informing their parents: they must be convinced that they can understand all aspects of the advice, that the patients physical or mental health is likely to suffer without medical advice, that it is in the best interests of the patient to provide medical advice, that (in provision of contraception) they are likely to have sex whether contraception is provided or not, and that they have made an effort to convince the young person to disclose the information to their parents.