What is the Age of Legal Capacity (Scotland) Act 1991? 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. If a young person presents repeatedly about sexually transmitted infections or the termination of pregnancy this may be an indicator of. Re R (A minor) (Wardship Consent to Treatment). The United Nations Convention on Children's Rights (UNCRC; 1989) defines a child as any person under 18; however, by convention British courts refer to all persons under 18 as minors, those under 16 as children and 16 and 17 y olds as young persons.Citation2 The UNCRC requires that childhood is recognized as a developmental period and that our domestic laws must be developed in a manner consistent with the evolving capacities of the child (United Nations 1989, Article 5).Citation2 As children grow and develop in maturity, their views and wishes must be given greater weight and their development toward adulthood must be respected and promoted. A refusal by 16 - 17 year olds is also not determinative and can be overridden by the court. 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. 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. Where a health professional accepts the consent of a Gillick competent child it cannot be overruled by the child's parent. Oxbridge Solutions Ltd. endobj 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. 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. Fraser guidelines are used specifically for children requesting contraceptive or sexual health advice and treatment. 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. Hum Vaccin Immunother. 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. 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. sometimes termed as Gillick Competence, is granted to a person under the age of 18 where they can demonstrate sufficient insight and understanding of major decisions . If a Gillick competent child refuses medical examination or treatment then the law does allow a person with parental responsibility to consent in their place. Typical positions of emancipation arise when the minor is married (R v D [1984] AC 778, 791) or in the military. 15 August 2022. 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. Department of Health and Social Care (2009) Reference guide to consent for examination or treatment (second edition). Find out more about how to recognise when a child has experienced abuse, and how to respond if a child discloses abuse to you. under the age of 16 can consent to medical treatment if they have sufficient maturity We have also added a section about safeguarding concerns. It may also be interpreted as covering youth 11 0 obj 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. 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. %PDF-1.3 Gillick v West Norfolk & Wisbech Area Health Authority, UKHL 7 (17 October 1985) Available via (BAILII) in The law reports (appeal cases) [1986] AC 112. 16 - 17 year olds, by virtue of section 8 of the Law Reform Act 1969 are conclusively presumed to be Gillick competent and the test of Gillick competence is bypassed and has no relevance. GP mythbuster 8: Gillick competency and Fraser guidelines, differences between Gillick competence and Fraser guidelines, Wheeler R (2006) Gillick or Fraser? << /Length 5 0 R /Filter /FlateDecode >> 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. Enter your email address to follow this website and receive notifications of new posts by email. Fraser guidelines are applied specifically to advice and treatment that focuses on a young person's sexual health and contraception. This lack of authority reflects that the reported cases have all involved minors who have been found to be incompetent, and that Australian courts will make decisions in the parens patriae jurisdiction regardless of Gillick competence. Mental Health Matters, What is the Mature Minor Doctrine? Consent needs to be given voluntarily . Young people aged 16 or 17 are presumed in law, like adults, to have the capacity to consent to medical treatment. Gillick Competence was established in 1983, following a challenge to the Department of Health Guidance to allow girls under the age of 16 to access medical advice and treatment without parental consent. Competence is related to cognitive ability and experience and may be enhanced by education, encouragement etc. 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. This is known as an assessment of 'Gillick competency'. > Find out more about using the Fraser guidelines, Lord Scarman's comments in his judgment of the Gillick case in the House of Lords (Gillick v West Norfolk, 1985) are often referred to as the test of "Gillick competency". > Find out more about the Library and Information Service. For example, parental consent is required for the treatment of children with asthma using standby salbutamol inhalers in schools. 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. 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. 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 . Fraser was one of the five judges of in the UK House of Lords . 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. 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. Consent needs to be given voluntarily. referred specifically to doctors but it is considered to apply to other health If a child or young person needs confidential help and advice direct them to Childline. If a person aged 16 or 17 years or a Gillick-competent child refuses treatment that refusal Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1984] Q.B. 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. condoms to young people under 16, but this has not been tested in court. their ability to explain a rationale around their reasoning and decision making. 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. 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). 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. Recommended articles lists articles that we recommend and is powered by our AI driven recommendation engine. 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. Later she had a total of 10 children. However, Scots Law has gone beyond Gillick with the enactment in 1991 of the Age of Legal Capacity (Scotland) Act (the 'Scottish Act'). Mrs Gillick was a lady of Catholic faith with 5 daughters when the case originally started back in 1982. A relatively young child would have sufficient maturity and intelligence to be competent to consent to a plaster on a small cut. 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 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. z#&,!Eh?_X Q*%20/Ud` !s4@KXA!20W.E-2eR5re@1cCk2W ~G 5 See Gillick v West Norfolk AHA [1986] AC 112, 189. 5 0 obj There are no potential conflicts of interest. Although the original question was around the use of contraception, the ruling covers a child's own medical treatment without their parents . The House of Lords focused on the issue of consent rather than a notion of parental rights or parental power. 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. 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. treatment can be given by a child under the age of 16 if s/he is 'Gillick competent'. There is specific guidance for medical professionals on using Gillick competence - see case history and legislation. 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. In early September 2021, guidance circulated to NHS trusts stated that most 12- to 15-year-olds should be deemed Gillick competent to provide [their] own consent to be vaccinated against COVID-19, despite the JCVI fail[ing] to recommend Covid-19 vaccines for healthy 12- to 15-year-olds. 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. stream 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. 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. Study Hub OSCE Sessions. 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 . 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. 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 . 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. Care Quality Commission. 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. When practitioners are trying to decide whether a child is mature enough to make decisions, they often talk about whether the child is 'Gillick competent' or whether they A licensed medical The advice or treatment is in the young persons best interests. it is in the young person's best interests to receive the advice, treatment or both without their parents' or carers' consent. Gillick competence needs to be assessed on a decision by decision basis, checking whether the child understands the implications of the treatment. 'Gillick competence' refers to a young person under 16 with capacity to make any relevant decision. 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. Abstract. 6 0 obj Call Childline on 0800 1111, Weston House, 42 Curtain Road, London, EC2A 3NH. However, if a young person refuses treatment which may lead to their death or severe permanent harm, their decision can be overruled. Lord Justice Thorpe viewed medical interventions as existing on a scale. The following information looks at how this can be applied in practice. Otherwise, someone with parental responsibility can consent for them. Both Gillick competency and Fraser guidelines refer to a legal case from the 1980s which looked at whether doctors should be able to give contraceptive advice or treatment to young people under 16-years-old without parental consent. 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.