We have also added a section about safeguarding concerns. 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. A good practice guide on consent for health professionals in NHS Scotland (PDF). strictly prohibited. ", > Find out more about assessing Gillick competency. Abstract. the young person's physical or mental health or both are likely to suffer unless they receive the advice or treatment. their ability to explain a rationale around their reasoning and decision making. Department of Health and Social Care (2009) Reference guide to consent for examination or treatment (second edition). At the other end are cases where there is genuine scope for debate and the views of the parents are important. 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. What is the Age of Legal Capacity (Scotland) Act 1991? 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. the Family Law Reform Act 1969 states: "The consent of a minor who
People also read lists articles that other readers of this article have read. 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. Enter your email address to follow this website and receive notifications of new posts by email. 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.. to apply to other treatments, including abortion, the Fraser guidelines
We have updated and republished this mythbuster to provide even greater clarity about the difference between these two terms. The decisions In re R (1991) and Re W (1992) (especially Lord Donaldson) contradict the Gillick decision somewhat. A child who has such understanding is considered Gillick competent . Using the Skills of Mental Health First Aid, Some Important Facts about Mental Health Problems, Some Common Myths about Mental Health Problems, Causes of Anxiety & Stress-Related Disorders, Causes of Obsessive-Compulsion and Related Disorders, Causes of Schizophrenia and Related Disorders, Causes of Somatic Symptom and Related Disorders, Causes of Suicidal Behaviour and Self-Injury, Symptoms of Generalised Anxiety Disorder (GAD), Symptoms of Panic Attacks & Panic Disorder, Symptoms of Post-Traumatic Stress Disorder (PTSD), Symptoms of Depersonalisation/Derealisation Disorder, Symptoms of Dissociative Identity Disorder, Symptoms of Avoidant/Restrictive Food Intake Disorder, Symptoms of Body-Focused Repetitive Behavioural Disorder, Symptoms of Hair-Pulling Disorder (Trichotillomania), Symptoms of Obsessive-Compulsive Disorder (OCD), Symptoms of Skin Picking Disorder (Excoriation), Symptoms of Antisocial Personality Disorder, Symptoms of Avoidant Personality Disorder, Symptoms of Borderline Personality Disorder, Symptoms of Dependent Personality Disorder, Symptoms of Histrionic Personality Disorder, Symptoms of Narcissistic Personality Disorder, Symptoms of Obsessive-Compulsive Personality Disorder, Symptoms of Paranoid Personality Disorder, Symptoms of Schizoid Personality Disorder, Symptoms of Schizotypal Personality Disorder, Symptoms of Gender Dysphoria & Transsexualism, Symptoms of Factitious Disorder Imposed on Self, Outline of Personality & Behaviour Changes, Causes of Personality & Behaviour Changes, Evaluation of Personality & Behaviour Changes, Treatment of Personality & Behaviour Changes, Overview of Trauma- & Stress-Related Disorders, Generalised Anxiety Disorder (GAD) in Children, Post-Traumatic Stress Disorder (PTSD) in Children & Adolescents, Derpersonalisation/Derealisation Disorder, Avoidant/Restrictive Food Intake Disorder, Obsessive-Compulsive and Related Disorders, Body-Focused Repetitive Behavioural Disorder, Obsessive-Compulsive Personality Disorder (OCPD), Psychotic Disorder Due to Another Medical Condition, Substance/Medication-Induced Psychotic Disorders, Psychological Factors Affecting Other Medical Conditions, Medical Professionals Aid in Dying (aka Assisted Suicide), Suicidal Behaviour in Children and Adolescents, Diagnostic & Statistical Manual of Mental Disorders (DSM), International Classification of Diseases (ICD), Chinese Classification of Mental Disorders, Diagnosis of Generalised Anxiety Disorder (GAD), Diagnosis of Panic Attacks & Panic Disorder, Diagnosis of Post-Traumatic Stress Disorder (PTSD), Diagnosis of Depersonalisation/Derealisation Disorder, Diagnosis of Dissociative Identity Disorder, Diagnosis of Avoidant/Restrictive Food Intake Disorder, Diagnosis of Body Dysmorphic Disorder (BDD), Diagnosis of Body-Focusesd Repetitive Behavioural Disorder, Diagnosis of Hair-Pulling Disorder (Trichotillomania), Diagnosis of Obsessive-Compulsive Disorder (OCD), Diagnosis of Skin-Picking Disorder (Excoriation), Diagnosis of Antisocial Personality Disorder, Diagnosis of Avoidant Personality Disorder, Diagnosis of Borderline Personality Disorder, Diagnosis of Dependent Personality Disorder, Diagnosis of Histrionic Personality Disorder, Diagnosis of Narcissistic Personality Disorder, Diagnosis of Obsessive-Compulsive Personality Disorder, Diagnosis of Paranoid Personality Disorder, Diagnosis of Schizoid Personality Disorder, Diagnosis of Schizotypal Personality Disorder, Diagnosis of Gender Dysphoria & Transsexualism, Diagnosis of Factitious Disorder Imposed on Self, Mental Health First Aid (Higher Education), FAA Level 1 Award in Awareness of First Aid For Mental Health, FAA Level 2 Award in First Aid For Mental Health, FAA Level 3 Award in Supervising/Leading First Aid For Mental Health, First Aid For Mental Health Instructor Training, Applied Suicide Intervention Skills Training (ASIST), More Questions Than Answers (MQTA) Training, Professional Development Award (PDA) Mental Health Peer Support, COSCA Further Steps in Counselling Skills, COSCA Counselling Supervision Certificate & Skills Course, Mental Health Awareness for Sport & Physical Activity, Level 2 Certificate in Awareness of Mental Health Problems, Level 3 Certificate in Understanding Mental Health, Mental Health & Related Organisations in Scotland, Age of Legal Capacity (Scotland) Act 1991, What is the Age of Legal Capacity (Scotland) Act 1991? >> The Fraser guidelines specifically relate only to contraception and sexual health. However, these are only obiter statements and were made by a lower court; therefore, they are not legally binding. In some circumstances this may not be in the best interest of the young person. Immunization may not be appropriate in every case. As such, medical staff will not make a disclosure of medical records of a child who is deemed Gillick competent unless consent is manifest. 2(1) and 3(1) Mental Capacity Act 2005. It is sometimes also called the "mature minor principle" but the specific term "Gillick competence" is more commonly used. 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. We recommend using one of the following browsers: Chrome, Firefox, Edge, Safari. The form is based on the meaning of 'capacity' in section 14 of the Mental Health Act 2016. The result of Gillick is that in England today, except in situations that are regulated otherwise by law, the legal right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own mind on the matter requiring decision. The House of Lords focused on the issue of consent rather than a notion of parental rights or parental power. Note though that consent to medical
Study Hub OSCE Sessions. Call Childline on 0800 1111, Weston House, 42 Curtain Road, London, EC2A 3NH. Consent is essential to the propriety of treatment and is necessary to meet the requirements of the law. This idea of Gillick competence was further supported by R (on the application of Axon) v Secretary of State for Health. Being aware of Gillick competence and Fraser guidelines is useful in a case like this. 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. Axton v The Secretary of State for Health (The Family Planning Association: intervening) (2006) EWHC 37. The common law recognises that a child or young person may . > 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". This key principle is reflected in consent law applied to children. ; Patient confidentiality versus parental rights. 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. Obtaining consent for immunization becomes more complex where parental responsibility and the developmental concept of Gillick competence become intertwined as the child matures to adulthood. 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. If a person aged 16 or 17 years or a Gillick-competent child refuses treatment that refusal eZ4he~9tQq,go`q{PgJP2 5hj+220wp5H7PZBPd@Bd @Bh;Q7~D$ It was determined that children under 16 can consent if they have sufficient understanding and intelligence to fully understand what is involved in a proposed treatment, including its purpose, nature, likely effects and risks, chances of success and the availability of other options. 581. Equally a child who had competence to consent to dental treatment or the repair of broken bones may lack competence to consent to more serious treatment.Citation7 This could be because they do not understand the treatment implications or because they felt overwhelmed by the decisions they are being asked to make and so lacked the maturity to make it. The Gillick Competency Principle is in effect in Australia since 1992 and deals with parental guidance and information with respect to minors' use of contraceptives and decisions with respect to abortion and pregnancy. independence. referred specifically to doctors but it is considered to apply to other health
upgrade your browser. 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. endobj to treatment to anyone aged 16 to 18. "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. &Ed@ 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. In late 2020, Bell v Tavistock considered whether under-16s with gender dysphoria could be Gillick competent to consent to receiving puberty blockers. National Society for the Prevention of Cruelty to Children. 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. Although the two terms are frequently used together and originate from the same legal case, there are distinct differences between them. Adolescence is a transitional phase of growth and development between childhood and adulthood. condoms to young people under 16, but this has not been tested in court. To a more limited extent, 16 and 17 year-olds can also take medical decisions independently of their parents. Gillick competence is used to assess a child's capability to make and understand their decisions in a wider context. This was clarified
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. 1 We adopt the familiar medico-legal language of the 'mature minor'. Cited by lists all citing articles based on Crossref citations.Articles with the Crossref icon will open in a new tab. It is not a question of neglect or abuse that would trigger child protection proceedings. 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 . 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. A relatively young child would have sufficient maturity and intelligence to be competent to consent to a plaster on a small cut. Such children are deemed to be capable of giving valid consent to advice or treatment without parental knowledge or . Re R (A minor) (Wardship Consent to Treatment). The case is binding in England and Wales, and has been adopted to varying extents in Australia, Canada, and New Zealand. A refusal by 16 - 17 year olds is also not determinative and can be overridden by the court. These are commonly known as the Fraser Guidelines: the young . Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. 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. A licensed medical Oxbridge Solutions Ltd receives funding from advertising but maintains editorial -'d2fgK~8P:nC3
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Fraser guidelines originally just related to contraceptive advice and treatment but, following a case in 2006, they now apply to decisions about treatment for sexually transmitted infections and termination of pregnancy. If a child passes the Gillick test, he or she is considered Gillick competent to consent to that medical treatment or intervention. In fact, the court held that parental rights did not exist, other than to safeguard the best interests of a minor. Microsoft is encouraging users to upgrade to its more modern, children
Registered charity in England and Wales (216401), Scotland (SC037717) and Jersey (384). 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. There is specific guidance for medical professionals on using Gillick competence - see case history and legislation. 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. In 1985, Mrs Gillick brought her concerns regarding guidance on contraceptive advice and treatment for girls under the age of 16 to the courts. 6 0 obj Gillick Competence: An unnecessary burden . However, as with adults, this consent is only valid if given voluntarily and not under undue influence or pressure by anyone else. under the age of 16 can consent to medical treatment if they have sufficient maturity
The degree of maturity and intelligence needed depends on the gravity of the decision. their own treatment. Typical positions of emancipation arise when the minor is married (R v D [1984] AC 778, 791) or in the military. stream Gillick competence is concerned with determining a childs capacity to consent. Call us on 0808 800 5000
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. 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. 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. 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 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). Their fathers made an application to the court seeking the immunization of their children. At paragraph 78, Sir James also noted that: Last reviewed 01/2018. Edinburgh: Scottish Executive. A court order is no guarantee that the vaccine will be administered. 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. 43R@
~? 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. are offering contraceptive services to under 16's without parental knowledge or
>> /Font << /TT2 10 0 R /TT1 9 0 R >> /XObject << /Im1 11 0 R >> >> In Scotland, the Age of Legal Capacity (Scotland) Act 1991 sets out when children have the legal capacity to make decisions. Gillick competence is a functional ability to make a decision. 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 courts do not adopt an unquestioning recommendation of immunization but give careful consideration to each case on its facts. Learn how your comment data is processed. The fathers argued that the immunizations were in the children's best interests. In Queensland, a child can consent to a vaccination if they have the capacity to give or withhold consent. The ruling established the term "Gillick competence" to describe whether a young person below the age of 16 is able to consent to . 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. Includes the application of the information in the clinics. It is not just an ability to choose . the young person is very likely to continue having sex with or without contraceptive treatment. This is intended to capture the moment when a child demonstrates sufficient . The nature of the standard remains uncertain. A plea for consistency over competence in children. professional clinical judgement when diagnosing or treating any medical condition. This study of the implications of Gillick competence argues it is an unnecessary burden with an unethical foundation. GPnotebook stores small data files on your computer called cookies so that we can recognise The risks, intended benefits and outcomes of the proposed immunization and alternatives to immunization, including the option of not having or delaying the immunization. Date: 27 February 2018. These restrictions have yet to be tested in court. z#&,!Eh?_X Q*%20/Ud` !s4@KXA!20W.E-2eR5re@1cCk2W
~G Sisters must receive MMR vaccine, court rules, Immunization, Safeguarding or Parental Choice, Medicine, Dentistry, Nursing & Allied Health. be as effective as it would be if he were of full age; and where a minor has by
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. More recently the court has considered the immunization of older children. The issue before the House of Lords was only whether the minor involved could give consent. Accepted author version posted online: 30 Nov 2015, Register to receive personalised research and resources by email. 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. 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 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. Lord Scarman and Lord Fraser proposed slightly different tests (Lord Bridge agreed with both).
Young people aged 16 or 17 are presumed in law, like adults, to have the capacity to consent to medical treatment. The understanding required for different interventions will vary, and capacity can also fluctuate such as in certain mental health conditions. 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. Fraser guidelines are used specifically for children requesting contraceptive or sexual health advice and treatment. a local authority or person with an . A child of 15 years or above would normally be expected to have sufficient maturity, intelligence and understanding to . these criteria specifically refer to contraception, the principles are deemed
When consenting children to medical treatment, the terms Gillick competence and Fraser guidelines are frequently used interchangeably despite there being a clear distinction between them. 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. For example, parental consent is required for the treatment of children with asthma using standby salbutamol inhalers in schools. Additionally, a child may have the capacity to consent to some treatments but not others. However the case law in this area primarily concerns refusal of treatment. << /Type /Page /Parent 3 0 R /Resources 6 0 R /Contents 4 0 R >> 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". The standard is based on a decision of the Lady Justice Purvis in the case Gillick v West Norfolk and . ; there . the young person understands the advice being given. TO SAY that Mrs Gillick was angry is an understatement. 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. Bell v Tavistock and Portman is a recent high-profile case on the lawfulness of prescribing puberty-suppressing drugs to children experiencing gender dysphoria. Key Difference. 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. which, in the absence of consent, would constitute a trespass to his person, should
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. The child's safety and wellbeing is paramount. 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. Hum Vaccin Immunother. and judgement to enable them fully to understand what is proposed. << /ProcSet [ /PDF /Text /ImageB /ImageC /ImageI ] /ColorSpace << /Cs1 8 0 R Consent is the legal expression of the moral principle of autonomy. In South Australia and New South Wales legislation clarifies the common law, establishing a Gillick-esque standard of competence but preserving concurrent consent between parent and child for the ages 14-16. Children who are younger than this may be mature enough to decide for themselves and not want their parents involved, which will . How do I view content? Mental Health Matters, What is Marions Case (1982)? endstream %PDF-1.3 Gillick sought a declaration that prescribing contraception was illegal because the doctor would commit an offence of encouraging sex with a minor and that it would be treatment without consent as consent vested in the parent; she was unsuccessful before the High Court of Justice, but succeeded in the Court of Appeal. Oxbridge Solutions Ltd. useGPnotebook. 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. Lord Scarmans test is generally considered to be the test of Gillick competency. Health professionals must be satisfied that the child understands: The necessity for immunization and the reasons for it; and. Mental Health Matters, What is Informed Refusal? 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. Gillick competency and Fraser guidelines Balancing children's rights with the responsibility to keep them safe from harm . 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.