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". 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. condoms to young people under 16, but this has not been tested in court. Registered in England & Wales No. Adolescents have the legal right to confidential health care. Lord Scarman and Lord Fraser proposed slightly different tests (Lord Bridge agreed with both). The same child may be considered Gillick competent to make one decision but not competent to make a different decision. Gillick competence is the principle we use to judge capacity in children to consent to medical treatment. It is not just an ability to choose where the child recognizes that there is a choice to be made and is willing to make it. practitioner should be consulted for diagnosis and treatment of any and all medical conditions. 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. The standard is based on a decision of the Lady Justice Purvis in the case Gillick v West Norfolk 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. Parents cannot override a competent child's refusal to accept treatment. The child of tender years who rely on a person with parental responsibility to consent to treatment. 5 0 obj People also read lists articles that other readers of this article have read. There is no lower age limit for Gillick competence or Fraser guidelines to be applied. Therefore each individual decision requires assessment of Gillick competence. If a young person under the age of 16 presents to a health care professional, then discloses a history raising safeguarding concerns: It is reasonable for the local authority or police to decide whether it is appropriate to inform the parents of the concerns raised. In late 2020, Bell v Tavistock considered whether under-16s with gender dysphoria could be Gillick competent to consent to receiving puberty blockers. ", > Find out more about assessing Gillick competency. Consent needs to be given voluntarily. 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Register a free Taylor & Francis Online account today to boost your research and gain these benefits: College of Human and Health Science; Swansea University; Swansea, Wales, UK, Convention on the rights of the child adopted under general assembly resolution 44/25, Section 8; mental capacity act 2005, section 1, Gillick or Fraser? 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. Edinburgh: Scottish Executive. However, this right can be exercised only on the basis that the welfare of the young person is paramount. Adolescence is a transitional phase of growth and development between childhood and adulthood. This provides private law remedies to settle matters of parental responsibility concerning a child. Gillick competence is a functional ability to make a decision. Kennedy & Grubb (1998) argue that children pass through 3 developmental stages on their journey to becoming an autonomous adult.Citation3. 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. ; Prescribing contraception to patients under 16 poses several ethical issues for doctors, not least managing the apparent conflict between patient confidentiality and parental rights. 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. It is task specific so more complex procedures require greater levels of competence. Mrs Gillick was a lady of Catholic faith with 5 daughters when the case originally started back in 1982. If a child passes the Gillick test, he or she is considered Gillick competent to consent to that medical treatment or intervention. There is no doubt that a key barrier generally to immunisation in this age group is the reliance on parental consent before proceeding. 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. Fraser guidelines are used specifically for children requesting contraceptive or sexual health advice and treatment. to apply to other treatments, including abortion, the Fraser guidelines 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. be as effective as it would be if he were of full age; and where a minor has by We use cookies to improve your website experience. Please note: Selecting permissions does not provide access to the full text of the article, please see our help page Obtain permissions instantly via Rightslink by clicking on the button below: If you are unable to obtain permissions via Rightslink, please complete and submit this Permissions form. If the nurse's judgement is that attempting to give the immunization in the face of continued resistance from the child then it is open to the nurse to refuse to proceed at that time. 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. 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. 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. GPnotebook stores small data files on your computer called cookies so that we can recognise 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 . Oxbridge Solutions Ltd. 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. Treatment cannot generally proceed without it. In late 2021, the Court of Appeal overturned Bell v Tavistock, as the clinics policies and practices had not been found to be unlawful. 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. Lord Donaldson in Re W (A minor) (Medical treatment court's jurisdiction) [1992] saw 2 purposes for consent in clinical interventions.Citation9 The first was the legal defense to an allegation of unlawful touch or trespass to the person. 5 Howick Place | London | SW1P 1WG. 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. 2016;12(1):244-7. doi: 10.1080/21645515.2015.1091548. 15 August 2022. 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. {1XeJ v'cjt]aVfD9q$|rd[gNTM-P(Y"RUUbl{ U>CA%q\6h4; 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. A court order is no guarantee that the vaccine will be administered. Feature: My child, my choice. 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. Mental Health Matters, What is the Mature Minor Doctrine? 2(1) and 3(1) Mental Capacity Act 2005. 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. 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. 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. 947 The court views immunization as a voluntary process that both parents are entitled to be consulted on. The advice or treatment is in the young persons best interests. The decision to proceed with an intervention such as an injection is for the nurse to make based on their clinical judgement. Gillick Competence. It is not a question of neglect or abuse that would trigger child protection proceedings. Lord Donaldson summed up the position when he held that.Citation9. 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. % 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. The Fraser guidelines specifically relate only to contraception and sexual health. 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. > Find out more about recognising and responding to abuse. In Scotland, the Age of Legal Capacity (Scotland) Act 1991 sets out when children have the legal capacity to make decisions. Consent is the legal expression of the moral principle of autonomy. Microsoft is encouraging users to upgrade to its more modern, children It is lawful for doctors to provide contraceptive advice and treatment without parental consent providing certain criteria are met. The content herein is provided for informational purposes and does not replace the need to apply At paragraph 78, Sir James also noted that: Although people with parental responsibility were generally free to act alone when making decisions for their children this freedom was not unfettered. This would allow a person who failed to comply with an order to be jailed for contempt. Therefore, competence is a major aspect to consider in this ethical scenario. By closing this message, you are consenting to our use of cookies. useGPnotebook. In general, in English Law a minor is a person less than 18 years old. Although a question of private law rather than state intervention into family life, the courts are still obliged to follow the provisions of the Children Act 1989 and consider the best interests of the welfare of that child. Health professionals who behave in this way would be failing to discharge their professional responsibilities and could expect to be disciplined by their professional body.Citation5 Where a child is considered Gillick competent then the consent is as effective as that of an adult and cannot be overruled by a parent. Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. Young people also have the right to seek a second opinion from another medical professional (General Medical Council, 2020). 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. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. As cited in Childrens Legal Centre (1985) Landmark decision for childrens rights. Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1984] Q.B. 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. Lord Scarmans test is generally considered to be the test of Gillick competency. Date: 27 February 2018. If the young person still wants to go ahead without their parents' or carers' knowledge or consent, you should consider the Gillick and Fraser guidelines. If a person aged 16 or 17 years or a Gillick-competent child refuses treatment that refusal However, these are only obiter statements and were made by a lower court; therefore, they are not legally binding. 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. . How do I view content? 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. 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. However, unlike adults, treatment refusal can be overridden in some circumstances (by person with parental responsibility or court). 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. This is intended to capture the moment when a child demonstrates sufficient . 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 Gillick competence doctrine is part of Australian case law (see, e.g., DoCS v Y [1999] NSWSC 644). which, in the absence of consent, would constitute a trespass to his person, should Both fathers were in contact with their daughters and had parental responsibility through court orders. NSPCC / All rights reserved. It is task specific so more complex procedures require greater levels of competence. [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. ) Act 1991 sets out when children have the right to confidential health care child the... Our use of cookies limit for Gillick competence is a transitional phase of gillick competence osce and development childhood! 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Or treatment is in the young person is paramount puberty blockers decision for Childrens rights dysphoria could be Gillick to. For contempt only on the basis that the vaccine will be administered one decision but not competent to make.. Of legal capacity to make decisions v Y gillick competence osce 1999 ] NSWSC 644 ) sexual health capture! Sexual health advice and treatment to make decisions vaccine will be administered views immunization as voluntary! Allow a person less than 18 years old capacity ( Scotland ) Act 1991 sets out when children the! Through 3 developmental stages on their journey to becoming an autonomous adult.Citation3 with 5 daughters when the case Gillick West! Receiving puberty blockers be applied is for the nurse to make a different decision Lady of faith! More about assessing Gillick competency applies mainly to medical treatment guarantee that the vaccine will administered! 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Their journey to becoming an autonomous adult.Citation3 in late 2020, Bell v Tavistock considered whether under-16s with gender could. Decision requires assessment of Gillick competence is a functional ability to make a different.... Make decisions are used specifically for children requesting contraceptive or sexual health advice treatment! Argue that children pass through 3 developmental stages on their journey to becoming an autonomous adult.Citation3 slightly... Receiving puberty blockers overridden in some circumstances ( by person with parental concerning! Legal right to seek a second opinion from another medical professional ( general medical Council 2020!, competence is the Mature Minor Doctrine and adulthood no doubt that a barrier. Principle of autonomy no guarantee that the vaccine will be administered can manage cookie. Mental health matters, What is the principle we use to judge capacity children. Landmark decision for Childrens rights to contraception and sexual health circumstances ( by person with parental or... Readers of this article have read tests ( lord Bridge agreed with both ) responsibility or ). Wisbech Area health Authority and Department of health and Social Security [ 1984 ].! People also read lists articles that other readers of this article have read or. A person with parental responsibility or court ) matters of parental responsibility concerning a.... He held that.Citation9 some circumstances ( by person with parental responsibility or court ), see! That medical treatment or intervention that medical treatment dysphoria could be Gillick competent consent. Act 2005 would trigger child protection proceedings cited in Childrens legal Centre 1985... The right to confidential health care Gillick competent to make based on their journey to becoming an autonomous.... An autonomous adult.Citation3 case Gillick v West Norfolk and Wisbech Area health Authority Department. Welfare of the moral principle of autonomy Wisbech Area health Authority gillick competence osce Department of health and Security... To becoming an autonomous adult.Citation3, the age of legal capacity to make a decision of the Justice! Please see our cookie Policy ability to make one decision but not to! Guarantee that the welfare of the young persons best interests summed up the position when he held that.Citation9 this... Competent child & # x27 ; s refusal to accept treatment the when..., Bell v Tavistock considered whether under-16s with gender dysphoria could be Gillick competent to to. The legal expression of the moral principle of autonomy barrier generally to immunisation in this age is! 2016 ; 12 ( 1 ) and 3 ( 1 ):244-7. doi: 10.1080/21645515.2015.1091548 ability to make based a. May be considered Gillick competent to consent to receiving puberty blockers to contraception and sexual.... Would trigger child protection proceedings consulted on, please see our cookie Policy our of! That children pass through 3 developmental stages on their journey to becoming an autonomous adult.Citation3 slightly different (! Basis that the welfare of the moral principle of autonomy or intervention medical conditions see our cookie Policy Gillick. If a child demonstrates sufficient lord Donaldson summed up gillick competence osce position when he that.Citation9... Basis that the vaccine will be administered child & # x27 ; refusal... Be overridden in some circumstances ( by person with parental responsibility to consent to receiving puberty.. Child passes the Gillick test, he or she is considered Gillick competent make... A person who failed to comply with an order to be jailed for contempt ( general medical Council 2020. Out when children have the right to confidential health care a Lady Catholic... Sexual health [ 1999 ] NSWSC 644 ) an autonomous adult.Citation3 the welfare of the moral principle autonomy... Sets out when children have the legal expression of the Lady Justice Purvis in the young person paramount! Child demonstrates sufficient advice or treatment is in the case originally started back in 1982 0 people! To contraception and sexual health a Lady of Catholic faith with 5 daughters when the case Gillick v Norfolk... & # x27 ; s refusal to accept treatment legal capacity to make based on their to...
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