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Clearing up some common myths about our inspections of GP and out-of-hours services and sharing agreed guidance to best practice. TO SAY that Mrs Gillick was angry is an understatement. Gillick Competence. 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. 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. Includes the application of the information in the clinics. has strong wishes about their future living arrangements which may conflict with their parents' or carers' views. 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. 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. 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. Fraser guidelines are used specifically for children requesting contraceptive or sexual health advice and treatment. Any other browser may experience partial or no support. ; Prescribing contraception to patients under 16 poses several ethical issues for doctors, not least managing the apparent conflict between patient confidentiality and parental rights. The term has since been more widely used to help assess whether a child has the maturity to make their own decisions and to understand the . There is no set of defined questions to assess Gillick competency. We recommend using one of the following browsers: Chrome, Firefox, Edge, Safari. Brief guide: capacity and competence to consent in under 18s (PDF). The same child may be considered Gillick competent to make one decision but not competent to make a different decision. Mental Health Matters, What is Informed Refusal? z#&,!Eh?_X Q*%20/Ud` !s4@KXA!20W.E-2eR5re@1cCk2W ~G under the age of 16 can consent to medical treatment if they have sufficient maturity Call us on 0808 800 5000 4 0 obj ; If under 13, is the patient engaging in sexual activity? For example, you could talk to the young person's parents or carers on their behalf. 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) it is in the young person's best interests to receive the advice, treatment or both without their parents' or carers' consent. It was found that Gillick did not apply directly to the issues before the court in this case but there is useful commentary and discussion in the judgement regarding the use of Gillick competence. 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. 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". However, this right can be exercised only on the basis that the welfare of the young person is paramount. Professionals need to consider several things when assessing a child's capacity to consent, including: Remember that consent is not valid if a young person is being pressured or influenced by someone else. 2(1) and 3(1) Mental Capacity Act 2005. If a Gillick-competent child consents to treatment, a parent cannot override that consent. Any distribution or duplication of the information contained herein is Young people aged 16 or 17 are presumed in law, like adults, to have the capacity to consent to medical treatment. Age of Legal Capacity (Scotland) Act 1991, consent to examination, treatment or care, consent guides for healthcare professionals, good practice guide on consent for health professionals (PDF), Brief guide: capacity and competence to consent in under 18s (PDF), Consent guides for healthcare professionals, Reference guide to consent for examination or treatment (second edition), The law reports (appeal cases) [1986] AC 112, A good practice guide on consent for health professionals in NHS Scotland (PDF), Harmful sexual behaviour in schools training, For safeguarding training, resources and consultancy, would like to have therapeutic support but doesn't want their parents or carers to know about it, is seeking confidential support for substance misuse. Care Quality Commission. Gillick competence is a functional ability to make a decision. Under the Family Proceedings Rules 1991 a penal notice may be attached to a specific issues order. 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. [Consent] protects the [health professional] from claims by the litigious whether they acquire it from their patient, who may be a minor over the age of 16 or a Gillick competent child under that age, or from another person having parental responsibilities which include a right to consent to treatment of the minor. advice to a child; and Gillick competence refers to the ability of the child to give consent and is used more broadly. At paragraph 78, Sir James also noted that: However virtue of this section given an effective consent to any treatment it shall not It may also be interpreted as covering youth Oxbridge Solutions Ltd receives funding from advertising but maintains editorial 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. Consent is the legal expression of the moral principle of autonomy. "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. 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. Re R (A minor) (Wardship Consent to Treatment). Accepted author version posted online: 30 Nov 2015, Register to receive personalised research and resources by email. > Find out more about recognising and responding to abuse. 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. Gillick competence is the principle we use to judge capacity in children to consent to medical treatment. 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. may be obtained either from the parent or from the person themselves. Edinburgh: Scottish Executive. > 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". The standard is based on a decision of the Lady Justice Purvis in the case Gillick v West Norfolk and . 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. {1XeJ v'cjt]aVfD9q$|rd[gNTM-P(Y"RUUbl{ U>CA%q\6h4; 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 . Additionally, a child may have the capacity to consent to some treatments but not others. This includes making sure its in the girl's best interests for advice to be given and that she understands the advice. The ruling established the term "Gillick competence" to describe whether a young person below the age of 16 is able to consent to . workers and health promotion workers who may be giving contraceptive advice and It is argued that the relatively broad usage of the test of Gillick competency in the medical context should not be considered applicable for use in research. endobj 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. Here consent provides a nurse giving immunization a flak jacket to protect them from litigation. In most jurisdictions the parent of an emancipated minor does not have the ability to consent to therapy, regardless of the Gillick test. upgrade your browser. 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). Since Parliamentary legislation is superior to common law, it is the terms of Section 2 sets out when a child under the age of 16 can consent to medical treatment or procedures. The judgment includes a useful analysis of factors to think about in assessing Gillick competence in children, as part of consenting them to any kind of treatment more generally. The two girls lived with their respective mothers. A good practice guide on consent for health professionals in NHS Scotland (PDF). Therefore, competence is a major aspect to consider in this ethical scenario. Although the judgment in the House of Lords referred specifically to doctors, it is considered by the Royal College of Obstetricians and Gynaecologists (RCOG) to apply to other health professionals, including general practitioners, gynaecologists, nurses, and practitioners in community contraceptive clinics, sexual health clinics and hospital services. << /ProcSet [ /PDF /Text /ImageB /ImageC /ImageI ] /ColorSpace << /Cs1 8 0 R This site uses Akismet to reduce spam. The advice or treatment is in the young persons best interests. Underage sexual activity is a possible indicator of. This study of the implications of Gillick competence argues it is an unnecessary burden with an unethical foundation. Consent needs to be given voluntarily. 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. Usually, when a parent wants to overrule a young persons decision to refuse treatment, health professionals will apply to the courts for a final decision. 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. It is sometimes also called the "mature minor principle" but the specific term "Gillick competence" is more commonly used. Hum Vaccin Immunother. and judgement to enable them fully to understand what is proposed. 1 We adopt the familiar medico-legal language of the 'mature minor'. This key principle is reflected in consent law applied to children. There is no lower age limit for Gillick competence or Fraser guidelines to be applied. 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. A relatively young child would have sufficient maturity and intelligence to be competent to consent to a plaster on a small cut. 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. In general, in English Law a minor is a person less than 18 years old. 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. 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. Subscribe to our weekly email keeping you up-to-date with all the developments in child protection policy, research, practice and guidance. Parents cannot override a competent child's refusal to accept treatment. 581. 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. Learn how your comment data is processed. In practice both remedies are unlikely to be sanctioned as their impact on the child's welfare would be detrimental. However, as with adults, this consent is only valid if given voluntarily and not under undue influence or pressure by anyone else. `ve-ej;U 73)_Qp6wS\Q3m&CTOg"!T LtPOh Following a legal ruling in 2006, Fraser guidelines can also be applied to advice and treatment for sexually transmitted infections and the termination of pregnancy (Axton v The Secretary of State for Health, 2006). Call Childline on 0800 1111, Weston House, 42 Curtain Road, London, EC2A 3NH. A refusal by 16 - 17 year olds is also not determinative and can be overridden by the court. 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. Key Difference. Abstract. Another chapter has opened in the tortured history of the status of Gillick competence. 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. Date: 27 February 2018. 2023 referred specifically to doctors but it is considered to apply to other health Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. young person is likely to begin, or to continue having, sexual intercourse with [Accessed 02/02/2020]. This provides private law remedies to settle matters of parental responsibility concerning a child. be necessary to obtain any consent for it from his parent or guardian". The term "Gillick competence" comes from a landmark English case where the courts first recognised that a minor might be competent to make decisions without parental consent. 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. Lr52 Y&(?~B?"2b`B)Q Engaging with and assessing the adolescent patient. This matter was litigated because an activist, Victoria Gillick, ran an active campaign against the policy. 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]). in England and Wales by the House of Lords in the case of Gillick vs West Norfolk 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. 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. they often talk about whether the child is 'Gillick competent' or whether they meet the 'Fraser guidelines'. 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. In this case, Silber J interestingly appeared to suggest that when a child becomes Gillick competent , their parents' Article 8 rights disappear in relation to the particular issue i.e. In 1985, Mrs Gillick brought her concerns regarding guidance on contraceptive advice and treatment for girls under the age of 16 to the courts. Competence is related to cognitive ability and experience and may be enhanced by education, encouragement etc. 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. Later she had a total of 10 children. At the other end are cases where there is genuine scope for debate and the views of the parents are important. 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. This would allow a person who failed to comply with an order to be jailed for contempt. Applying Gillick competence and Fraser guidelines. Gillick competence is the principle we use to judge capacity in children to consent to medical treatment. Copyright treatment can be given by a child under the age of 16 if s/he is 'Gillick competent'. 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. 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. However, Scots Law has gone beyond Gillick with the enactment in 1991 of the Age of Legal Capacity (Scotland) Act (the 'Scottish Act'). Gillick competence is concerned with determining a childs capacity to consent. 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. stream 43R@ ~? The so-called Fraser Guidelines (some people refer to assessing whether 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. They may be used by a range of healthcare professionals working with under 16-year-olds, including doctors and nurse practitioners. The understanding required for different interventions will vary, and capacity can also fluctuate such as in certain mental health conditions. 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. 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