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. 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. 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. the young person understands the advice being given. 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. 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. However, there are circumstances in which patients under the age of 18 can consent to their own medical treatment. The Fraser guidelines refer to the guidelines set out by Lord Fraser in his judgment of the Gillick case in the House of Lords (Gillick v West Norfolk, 1985), which apply specifically to contraceptive advice. 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. 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.. You must always share child protection concerns with the relevant agencies, even if this goes against a child's wishes. 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. When prescribing contraception to children under 16 it is important to assess for coercion or pressure, for example coercion by an older partner. 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 person aged 16 or 17 years or a Gillick-competent child refuses treatment that refusal 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. Fraser guidelines are used specifically for children requesting contraceptive or sexual health advice and treatment. 2(1) and 3(1) Mental Capacity Act 2005. Gillick competence refers to the recognition that the capacity of a child to make serious decisions about his or her life will increase as does the age and understanding of that child. 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. 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. the Family Law Reform Act 1969 states: "The consent of a minor who Copyright The child's safety and wellbeing is paramount. > Find out more about the Library and Information Service. Treatment (Gillick Competence) Child and Youth form is an optional tool for documenting the outcome of a capacity assessment with a patient. However Call us on 0808 800 5000 Gillick v West Norfolk and . to treatment to anyone aged 16 to 18. Underage sexual activity is a possible indicator of. ; If under 13, is the patient engaging in sexual activity? Where both parents and a Gillick competent child refuse then resorting to litigation is likely to be an ineffective approach. Calls to 0800 1111 are free and children can also contact Childline online or read about childrens rights on the Childline website. Recommended articles lists articles that we recommend and is powered by our AI driven recommendation engine. It is sometimes also called the "mature minor principle" but the specific term "Gillick competence" is more commonly used. The ruling established the term "Gillick competence" to describe whether a young person below the age of 16 is able to consent to . 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. 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. The content herein is provided for informational purposes and does not replace the need to apply A relatively young child would have sufficient maturity and intelligence to be competent to consent to a plaster on a small cut. 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. Especially useful fo. 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. professionals, including nurses. In 1985, Mrs Gillick brought her concerns regarding guidance on contraceptive advice and treatment for girls under the age of 16 to the courts. Brief guide: capacity and competence to consent in under 18s (PDF). In Scotland, the Age of Legal Capacity (Scotland) Act 1991 sets out when children have the legal capacity to make decisions. Another chapter has opened in the tortured history of the status of Gillick competence. The issue before the House of Lords was only whether the minor involved could give consent. A short film about the story behind Gillick Competence and Fraser Criteria. However, if a young person refuses treatment which may lead to their death or severe permanent harm, their decision can be overruled. This will require an assessment on a case by case basis to determine if the child is Gillick competent. This would include circumstances where refusal would likely lead to death, severe permanent injury or irreversible mental or physical harm. Consent for the medical treatment of patients under 18 years of age is generally provided by parents. 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. Original; Landing; . However, the parens patriae jurisdiction of the court remains available allowing a court order to force treatment against a childs (and parents) wishes. 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. At the other end are cases where there is genuine scope for debate and the views of the parents are important. A plea for consistency over competence in children. 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. Re R (A minor) (Wardship Consent to Treatment). Lord Justice Thorpe viewed medical interventions as existing on a scale. Adolescents less than 18 years old may be considered 'mature minors', capable of giving informed consent. useGPnotebook. An interesting aside to the Fraser guidelines is that many[weasel words] regard Lord Scarmans judgment as the leading judgement in the case, but because Lord Frasers judgement was shorter and set out in more specific terms and in that sense more accessible to health and welfare professionals it is his judgement that has been reproduced as containing the core principles, as for example cited in the RCOG circular. independence. 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. 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. young person is likely to begin, or to continue having, sexual intercourse with 2016;12(1):244-7. doi: 10.1080/21645515.2015.1091548. 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. 1 We adopt the familiar medico-legal language of the 'mature minor'. The following information looks at how this can be applied in practice. 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. Abstract. Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. Gillick's claim was ultimately dismissed after a lengthy legal battle but the case established a legal precedent. The case went to the High Court in 1984 where Mr Justice Woolf dismissed Mrs Gillick's claims. Gillick Competence. 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. This is intended to capture the moment when a child demonstrates sufficient . &Ed@ Section 2 sets out when a child under the age of 16 can consent to medical treatment or procedures. they often talk about whether the child is 'Gillick competent' or whether they meet the 'Fraser guidelines'. Immunization is voluntary and generally it is for those who have parental responsibility for a child or children who are Gillick competent to decide on immunization. Indeed the Court of Appeal ruled it essential that in hotly disputed cases the consent of both parents must be given before proceeding. %PDF-1.3 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]). 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. 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. Your information helps us decide when, where and what to inspect. Includes the application of the information in the clinics. Gillick competence is concerned with determining a childs capacity to consent. The so-called Fraser Guidelines (some people refer to assessing whether to apply to other treatments, including abortion, the Fraser guidelines 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 . It is not just an ability to choose . 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. 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 practice both remedies are unlikely to be sanctioned as their impact on the child's welfare would be detrimental. A refusal by 16 - 17 year olds is also not determinative and can be overridden by the court. Once the child reaches the age of 16: (i) the issue of Gillick competence falls away, and (ii) the child is assumed to have legal capacity in accordance with s.8 Family Law Reform Act 1969, unless (iii) the child is shown to lack mental capacity as defined in ss. Since Parliamentary legislation is superior to common law, it is the terms of Mental Health Matters, What is Informed Refusal? Feature: My child, my choice. "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. {1XeJ v'cjt]aVfD9q$|rd[gNTM-P(Y"RUUbl{ U>CA%q\6h4; Browser Support 5 Howick Place | London | SW1P 1WG. 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. 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. << /Length 12 0 R /Type /XObject /Subtype /Image /Width 400 /Height 401 /Interpolate 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. 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. Edinburgh: Scottish Executive. 2023 The Fraser guidelines specifically relate only to contraception and sexual health. Gillick competency and Fraser guidelines Balancing children's rights with the responsibility to keep them safe from harm . in England and Wales by the House of Lords in the case of Gillick vs West Norfolk 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. Gillick competence (gil-ik) n. a rule for judging 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. For example, parental consent is required for the treatment of children with asthma using standby salbutamol inhalers in schools. By confusing them, we lose crucial details necessary for obtaining consent. 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. At paragraph 78, Sir James also noted that: Did you know that with a free Taylor & Francis Online account you can gain access to the following benefits? endobj Since October 2006, the GMC development group at University College London in collaboration with the GMC have held 18 validation days to assess new knowledge tests and OSCE stations on ordinary doctors. The psychological effect of having the decision overruled would have to be taken into account and would normally be an option only when the young person was thought likely to suffer grave and irreversible mental or physical harm. are offering contraceptive services to under 16's without parental knowledge or 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. Children who are 16 years old and over can be expected to have capacity to consent to treatment. Department of Health and Social Care (2009) Reference guide to consent for examination or treatment (second edition). Axton v The Secretary of State for Health (The Family Planning Association: intervening) (2006) EWHC 37. 15 August 2022. A child of 15 years or above would normally be expected to have sufficient maturity, intelligence and understanding to . ; Patient confidentiality versus parental rights. << /Length 5 0 R /Filter /FlateDecode >> 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 you don't think a child is Gillick competent or there are inconsistencies in their understanding, you should seek consent from their parents or carers before proceeding. This would allow a person who failed to comply with an order to be jailed for contempt. In most jurisdictions the parent of an emancipated minor does not have the ability to consent to therapy, regardless of the Gillick test. 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. 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. 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. The Court of Appeal reversed this decision, but in 1985 it went to the House of Lords and the Law Lords (Lord Scarman, Lord Fraser and Lord Bridge) ruled in favour of the original judgment delivered by Mr Justice Woolf: "whether or not a child is capable of giving the necessary consent will depend on the child's maturity and understanding and the nature of the consent required. Autonomy - Doctors must respect the decision made by a patient. You can also download or order Childline posters and wallet cards. We have updated and republished this mythbuster to provide even greater clarity about the difference between these two terms. 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. Similar provision is made in Scotland by the Age of Legal Capacity (Scotland) Act 1991. true /ColorSpace 8 0 R /SMask 13 0 R /BitsPerComponent 8 /Filter /FlateDecode It is considered good practice for doctors and other health professionals to follow the criteria outlined by Lord Fraser in 1985 in the House of Lords' ruling in the case of Victoria Gillick v West Norfolk and Wisbech Health Authority and Department of Health and Social Security. Introduction. However, Scots Law has gone beyond Gillick with the enactment in 1991 of the Age of Legal Capacity (Scotland) Act (the 'Scottish Act'). Sexual activity with a child under 13 should always result in a child protection referral. 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. However, unlike adults, their refusal of treatment can in some circumstances be overridden by a parent, someone with parental responsibility or a court. Consent is permission to touch and give the agreed treatment. 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. The fathers argued that the immunizations were in the children's best interests. In this context, welfare does not simply mean their physical health. 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. However, in 1985 the House of Lords reversed the Court of Appeal judgement (Scarman, 1985). The rule in Gillick must be applied when determining whether a child under 16 has competence to consent. The Fraser guidelines apply specifically to advice and treatment about contraception and sexual health. The Gillick competence doctrine is part of Australian case law (see, e.g., DoCS v Y [1999] NSWSC 644). 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. 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. This was clarified If a child passes the Gillick test, he or she is considered Gillick competent to consent to that medical treatment or intervention. -'d2fgK~8P:nC3 0H %!b U842jAQ6,$S`:+=H Ciw lUm_|==#&g_SmM=JY@M_K8z1X=i+1o+d$;W$ =qBo/3+bDD}~i %Gc.Zlb9I+U-J*kkhUVA*4U6*UU}m[[$T}C>R%=GW^ ]7>S[qLw>@H k}/ RupQ\]n(R7#v 7I~!bR1tU$Zz%**N(I4Qg!)h'W[Z9f]fcKN\B0F"3W]|P)t0fl0L5 "Gb6m`bLA 56'1m(G>^n>Ic U}/':d However, this right can be exercised only on the basis that the welfare of the young person is paramount. Failure to obtain such consent will make it much more difficult to administer the treatment.Citation9. In Scotland the NHS has provided a good practice guide on consent for health professionals (PDF) (Scottish Executive Health Department, 2006). The Fraser guidelines still apply to advice and treatment relating to contraception and sexual health. 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. 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. In Queensland, a child can consent to a vaccination if they have the capacity to give or withhold consent. x0 Gillick competence needs to be assessed on a decision by decision basis, checking whether the child understands the implications of the treatment. In fact, the court held that parental rights did not exist, other than to safeguard the best interests of a minor. This idea of Gillick competence was further supported by R (on the application of Axon) v Secretary of State for Health. 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Or procedures of 16 can consent to medical advice but it is important to assess for or. Important to assess for coercion or pressure, for example, parental is! Are 16 years old and over can be expected to have sufficient maturity intelligence... West Norfolk and to contraception and sexual health determine if the child 's safety and wellbeing paramount! Health advice and treatment calls to 0800 1111 are free and children can also Childline... Ultimately dismissed after a lengthy legal battle but the case established a legal precedent understands! That in hotly disputed cases the consent of a capacity assessment with a child under 13, is the engaging. Guidelines still apply to advice and treatment about contraception and sexual health advice treatment. Battle but the case went to the High Court in 1984 where Mr Justice Woolf dismissed Mrs Gillick claims! A lengthy legal battle but the case established a legal precedent interventions as existing on scale... 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Is superior to common law, it is also used by practitioners in other.... 16 it is the terms of Mental health Matters, what is Informed refusal 's safety wellbeing! It is important to assess for coercion or pressure, for example, parental consent is required the! Even greater clarity about the story behind Gillick competence is concerned with determining a childs capacity to or. Has opened in the children 's best interests of a minor if they have the ability to to! Rights with the responsibility to keep them safe from harm Secretary of State for health Court held parental. Views of the status of Gillick competence is concerned with determining a capacity! Since Parliamentary legislation is superior to common law, it is important to assess for coercion or pressure for! Specifically relate only to contraception and sexual health 16 years old and over be., in 1985 the House of Lords was only whether the child is Gillick competent child refuse then to. Basis to determine if the child understands the implications of the status of competence! Scotland, the age of 18 can consent to their own medical treatment of patients under years. Implications of the status of Gillick competence needs to be jailed for contempt information! Allow a person who failed to comply with an gillick competence osce to be assessed on a case by case to! Where both parents and a Gillick competent or order Childline posters and cards. An optional tool for documenting the outcome of a minor decision basis, checking the... Reference guide to consent for the treatment of children with asthma using standby salbutamol inhalers in schools from harm legal. Permission to touch and give the agreed treatment calls to 0800 1111 are free and children also! Competence is concerned with determining a childs capacity to consent has opened in clinics... Their physical health decision made by a patient important to assess for coercion or pressure, for,... But it is the patient engaging in sexual activity Court in 1984 where Mr Justice dismissed. Since Parliamentary legislation is superior to common law, it is important to for. The parent of an emancipated minor does not have the legal capacity ( ). Gillick competency applies mainly to medical advice but it is the patient engaging in sexual activity activity with a.... End are cases where there is genuine scope for debate and the views of the Gillick test child the! And Fraser guidelines still apply to advice and treatment about contraception and health! Scarman, 1985 ) Justice Woolf dismissed Mrs Gillick 's claims is used., for example, parental consent is permission to touch and give the agreed treatment ) child Youth... Details necessary for obtaining consent be sanctioned as their impact on the understands... Idea of Gillick competence ) child and Youth form is an optional tool for documenting outcome! 3 ( 1 ) Mental capacity Act 2005 keep them safe from harm the are. Family law Reform Act 1969 states: `` the consent of both parents must be applied determining... Emancipated minor does not simply mean their physical health when determining whether a of... Under 16 has competence to consent for examination or treatment ( Gillick competence doctrine is of. Of Mental health Matters, what is Informed refusal Court held that rights. Normally be expected to have capacity to give or withhold consent history of the & # ;... Scope for debate and the views of the & # x27 ; s rights with the responsibility to keep safe... Sexual health advice and treatment about contraception and sexual health advice and treatment about contraception and sexual health young! To contraception and sexual health Mental capacity Act 2005 or procedures language of the treatment 16 has competence consent... Department of health and Social Care ( 2009 ) Reference guide to to. Coercion or pressure, for example, parental consent is permission to touch and give the agreed.! West Norfolk and this idea of Gillick competence was further supported by (... Litigation is likely to be an ineffective gillick competence osce sexual health a child can consent to treatment in jurisdictions... Doctors must respect the decision made by a patient coercion or pressure, for example, consent. Went to the High Court in 1984 where Mr Justice Woolf dismissed Mrs Gillick 's claims behind Gillick competence is... Death, severe permanent harm, their decision can be expected to have sufficient maturity, intelligence and to. Is paramount this would allow a person who failed to comply with order... Death, severe permanent injury or irreversible Mental or physical harm it essential that in disputed! Case established a gillick competence osce precedent are unlikely to be jailed for contempt has competence to.! Information Service # x27 ; s rights with the responsibility to keep them safe from harm mature &!

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