The Gillick standard arose from the High Court's decision in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL), which is binding in the . We recommend using one of the following browsers: Chrome, Firefox, Edge, Safari. 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. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. 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. Find out more about how to recognise when a child has experienced abuse, and how to respond if a child discloses abuse to you. 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. 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. It does not compel nurses to provide the treatment. Failure to obtain such consent will make it much more difficult to administer the treatment.Citation9. What to do if the patient is in an abusive relationship. As cited in Childrens Legal Centre (1985) Landmark decision for childrens rights. Copyright 2023 It is not just an ability to choose . The decisions In re R (1991) and Re W (1992) (especially Lord Donaldson) contradict the Gillick decision somewhat. endobj More information about this is available in the guidance for medical professionals in each UK nation - see case history and legislation. Children under 16 can consent to medical treatment if they understand what is being proposed. Never before has Gillick been extended to permit a mature child to make autonomous medical decisions over and above the curial 'parens patriae' power.In 2013, two judicial decisions promulgated from different Australian courts are in conflict over this most fundamental of questions. Any other browser may experience partial or no support. young person is likely to begin, or to continue having, sexual intercourse with This mythbuster clarifies the principles, laws and guidelines used when we assess childrens ability to make decisions about their treatment, as well as the differences between Gillick competence and Fraser guidelines. Incorporated by Royal Charter. % If under 16, is the patient Gillick competent? 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. The Fraser guidelines still apply to advice and treatment relating to contraception and sexual health. The courts have so far declined invitations to define rigidly Gillick competence and the individual doctor is free to make a decision, consulting peers if this may be helpful, as to whether that child is Gillick competent. As of May 2016, it appeared to Funston and Howard that some recent legislation worked explicitly to restrict the ability of Gillick competent children to consent to medical treatment outside of clinical settings. Mental Health Matters, What is Marions Case (1982)? Similar provision is made in Scotland by the Age of Legal Capacity (Scotland) Act 1991. 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 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. If the client has Gillick competence, they have the right to make decisions without parental consent and be granted confidentiality. Fraser guidelines are used specifically for children requesting contraceptive or sexual health advice and treatment. 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. However, this right can be exercised only on the basis that the welfare of the young person is paramount. In late 2021, the Court of Appeal overturned Bell v Tavistock, as the clinics policies and practices had not been found to be unlawful. Such children are deemed to be capable of giving valid consent to health-care treatment without parental knowledge or agreement provided they have sufficient intelligence and understanding . If a person aged 16 or 17 years or a Gillick-competent child refuses treatment that refusal We have updated and republished this mythbuster to provide even greater clarity about the difference between these two terms. A good practice guide on consent for health professionals in NHS Scotland (PDF). The House of Lords focused on the issue of consent rather than a notion of parental rights or parental power. You must always share child protection concerns with the relevant agencies, even if a child or young person asks you not to. Especially useful fo. This might . Autonomy - Doctors must respect the decision made by a patient. has attained the age of sixteen years to any surgical, medical or dental treatment << /Length 12 0 R /Type /XObject /Subtype /Image /Width 400 /Height 401 /Interpolate However, if a young person refuses treatment which may lead to their death or severe permanent harm, their decision can be overruled. 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. O>Gr~AdBsSO2 Ee3P?N6Ih 5oWhP Ic1Pb^j'rv!WDK+.I{709J*ZlSxoqkw[76MXHRXu/\n?HE,Qg"@ 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. Mental Health Matters. The understanding required for different interventions will vary, and capacity can also fluctuate such as in certain mental health conditions. If a Gillick-competent child consents to treatment, a parent cannot override that consent. 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. eZ4he~9tQq,go`q{PgJP2 5hj+220wp5H7PZBPd@Bd @Bh;Q7~D$ However, the parens patriae jurisdiction of the court remains available allowing a court order to force treatment against a childs (and parents) wishes. 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. She felt her rights as a parent had been undermined by a set of government guidelines issued to doctors, and she was . This first came into effect in England when Mrs. Gillick, a social activist filed a case with the Department of Health and . the young person understands the advice being given. 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. Consent needs to be given voluntarily. you and provide you with the best service. 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. advice, the young person cannot be persuaded to inform their parents, the In Queensland, a child can consent to a vaccination if they have the capacity to give or withhold consent. However, Scots Law has gone beyond Gillick with the enactment in 1991 of the Age of Legal Capacity (Scotland) Act (the 'Scottish Act'). should be fulfilled: guide to consulting with a sexually active child, This site is intended for healthcare professionals. To date no court has found a child in need of life sustaining treatment competent to refuse that treatment.Citation8. Re L (Medical Treatment: Gillick Competence). In sum, it is now legal to decide whether a child is able to give consent to medical treatment on the basis of an assessment of the child's maturity and understanding of what is being proposed. The young persons best interests require them to receive contraceptive advice or treatment with or without parental consent. 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. Young people also have the right to seek a second opinion from another medical professional (General Medical Council, 2020). ; If under 13, is the patient engaging in sexual activity? Oxbridge Solutions Ltd receives funding from advertising but maintains editorial Being aware of Gillick competence and Fraser guidelines is useful in a case like this. All of her daughters were well below the age where their possibly giving consent themselves was likely to be an issue - one was a newborn. Where a Gillick competent child refuses consent to immunization then a health professional may obtain consent from a person with parental responsibility instead. People also read lists articles that other readers of this article have read. Competence is related to cognitive ability and experience and may be enhanced by education, encouragement etc. 2 0 obj In most jurisdictions the parent of an emancipated minor does not have the ability to consent to therapy, regardless of the Gillick test. 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. Department of Health (2003). The case is binding in England and Wales, and has been adopted to varying extents in Australia, Canada, and New Zealand. in England and Wales by the House of Lords in the case of Gillick vs West Norfolk Gillick competence = assesses whether a child is competent Patients between the ages of 16 to 18 are assumed to be competent and can give consent In late 2020, Bell v Tavistock considered whether under-16s with gender dysphoria could be Gillick competent to consent to receiving puberty blockers. A refusal by 16 - 17 year olds is also not determinative and can be overridden by the court. Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 (17 October 1985) 2016 In-text: (Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 (17 October 1985), 2016) Lord Donaldson summed up the position when he held that.Citation9. Gillick guidelines ask the therapist to consider whether clients under the age of 16 have sufficient understanding to make an informed decision about undertaking therapy. Mental Health Matters, What is the Mature Minor Doctrine? Childright, 22: 11-18. Department of Health and Social Care (2009) Reference guide to consent for examination or treatment (second edition). There are no potential conflicts of interest. This test is known as the Gillick competence test. endobj 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. their own treatment. The subsequent 1983 judgement set out criteria for establishing whether a child under 16 has the capacity to provide consent . Call us on 0808 800 5000 GP mythbuster 8: Gillick competency and Fraser guidelines, differences between Gillick competence and Fraser guidelines, Wheeler R (2006) Gillick or Fraser? Opinion from another medical professional ( General medical Council, 2020 ) to contraception and sexual health advice treatment! Consent and be granted confidentiality whether a child under 16 has the to! 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