In Scotland, the Age of Legal Capacity (Scotland) Act 1991 sets out when children have the legal capacity to make decisions. When prescribing contraception to children under 16 it is important to assess for coercion or pressure, for example coercion by an older partner. It is lawful for doctors to provide contraceptive advice and treatment without parental consent providing certain criteria are met. Lord Scarmans test is generally considered to be the test of Gillick competency. A relatively young child would have sufficient maturity and intelligence to be competent to consent to a plaster on a small cut. 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. their own treatment. In general, in English Law a minor is a person less than 18 years old. these criteria specifically refer to contraception, the principles are deemed 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. Microsoft is encouraging users to upgrade to its more modern, children 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]). 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However, where parents are in dispute with each other over an issue of parental responsibility, that can include disagreement over immunization, then if negotiation fails they can go to court to resolve the matter. It is task specific so more complex procedures require greater levels of competence. A persistent rumour arose that Victoria Gillick disliked having her name associated with the assessment of childrens capacity, but an editorial in the BMJ from 2006 claimed that Gillick said that she has never suggested to anyone, publicly or privately, that [she] disliked being associated with the term Gillick competent'. 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. Mental Health Matters, What is Marions Case (1982)? London: Department of Health and Social Care. 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. 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. If a child does not pass the Gillick test, then the consent of a person with parental responsibility (or sometimes the courts) is needed in order to proceed with treatment. 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. The House of Lords focused on the issue of consent rather than a notion of parental rights or parental power. We use cookies to improve your website experience. For safeguarding training, resources and consultancy 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. 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. 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. In practice both remedies are unlikely to be sanctioned as their impact on the child's welfare would be detrimental. If under 16, is the patient Gillick competent? 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. Kennedy & Grubb (1998) argue that children pass through 3 developmental stages on their journey to becoming an autonomous adult.Citation3. << /ProcSet [ /PDF /Text /ImageB /ImageC /ImageI ] /ColorSpace << /Cs1 8 0 R Mental Health Matters. Copyright 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 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. However, the parens patriae jurisdiction of the court remains available allowing a court order to force treatment against a childs (and parents) wishes. If the conditions are not all met, however, or there is reason to believe that the child is under pressure to give consent or is being exploited, there would be grounds to break confidentiality. A child who is deemed Gillick competent is able to prevent their parents viewing their medical records. Competence is related to cognitive ability and experience and may be enhanced by education, encouragement etc. The fathers argued that the immunizations were in the children's best interests. Help for adults concerned about a child and judgement to enable them fully to understand what is proposed. If a Gillick-competent child consents to treatment, a parent cannot override that consent. Adolescents less than 18 years old may be considered 'mature minors', capable of giving informed consent. Re W (A minor) (Medical treatment court's jurisdiction). Adolescence is a transitional phase of growth and development between childhood and adulthood. >> /Font << /TT2 10 0 R /TT1 9 0 R >> /XObject << /Im1 11 0 R >> >> If you do not want to receive cookies please do not 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. The degree of maturity and intelligence needed depends on the gravity of the decision. virtue of this section given an effective consent to any treatment it shall not Consent guides for healthcare professionals. 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. However Competence is an essential legal requirement for valid consent to medical treatment. has attained the age of sixteen years to any surgical, medical or dental treatment Parents cannot override a competent child's refusal to accept treatment. young person is likely to begin, or to continue having, sexual intercourse with 581. As cited in Family Law Week. You must always share child protection concerns with the relevant agencies, even if this goes against a child's wishes. which, in the absence of consent, would constitute a trespass to his person, should In Scotland the NHS has provided a good practice guide on consent for health professionals (PDF) (Scottish Executive Health Department, 2006). 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. 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. Re R (A minor) (Wardship Consent to Treatment). There is no lower age limit for Gillick competence or Fraser guidelines to be applied. independence. 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 issue before the House of Lords was only whether the minor involved could give consent. Original; Landing; . In sum, it is now legal to decide whether a child is able to give consent to medical treatment on the basis of an assessment of the child's maturity and understanding of what is being proposed. 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 same child may be considered Gillick competent to make one decision but not competent to make a different decision. practitioner should be consulted for diagnosis and treatment of any and all medical conditions. Consent is the legal expression of the moral principle of autonomy. How do I view content? From these, and subsequent cases, it is suggested that although the parental right to veto treatment ends, parental powers do not terminate as suggested by Lord Scarman in Gillick. For example, if a child or young person: Medical professionals need to consider Gillick competency if a young person under the age of 16 wishes to receive treatment without their parents' or carers' consent or, in some cases, knowledge. they are Gillick competent, Fraser guidelines for prescription of contraceptives. A minor is considered to be competent to consent to treatment when the person 'achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed'. By confusing them, we lose crucial details necessary for obtaining consent. This includes making sure its in the girl's best interests for advice to be given and that she understands the advice. 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. % 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. Courts cannot treat the matter as a case of significant harm to a child that would warrant state intervention under the Children Act 1989. 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. In fact, the court held that parental rights did not exist, other than to safeguard the best interests of a minor. In a 2006 judicial review, R (on the application of Axon) v Secretary of State for Health, the High Court affirmed Gillick in allowing for medical confidentiality for teenagers seeking an abortion. 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. endobj 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. 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. 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. Abstract. The standard is based on the 1985 judicial decision of the House of Lords with respect to a case of the contraception advice given by an NHS doctor in Gillick v West Norfolk and Wisbech Area Health Authority. Gillick competence is concerned with determining a childs capacity to consent. Incorporated by Royal Charter. It is a high test of competence that is more difficult to satisfy the more complex the treatment and its outcomes become. The risks, intended benefits and outcomes of the proposed immunization and alternatives to immunization, including the option of not having or delaying the immunization. Includes the application of the information in the clinics. There is specific guidance for medical professionals on using Gillick competence - see case history and legislation. Lord Donaldson summed up the position when he held that.Citation9. The advice or treatment is in the young persons best interests. There is no set of defined questions to assess Gillick competency. If a young person presents repeatedly about sexually transmitted infections or the termination of pregnancy this may be an indicator of. Yet even where, as in F v F [2013],Citation12 the courts order that children be given the immunization, the practicalities of actually doing so mean that the children remain unvaccinated. Each station includes the following 3 components: Student instructions (the brief before beginning a station) Patient script (explaining the symptoms/signs the patient should report/demonstrate) You must always share child protection concerns with the relevant agencies, even if a child or young person asks you not to. xVrT9+=Uq,?d{TMxR) SX>; ]c}!G:wRkB):Nns+t:jvwd%f! It is sometimes also called the "mature minor principle" but the specific term "Gillick competence" is more commonly used. 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. Did you know that with a free Taylor & Francis Online account you can gain access to the following benefits? > Find out more about recognising and responding to abuse. has strong wishes about their future living arrangements which may conflict with their parents' or carers' views. 6 0 obj 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. 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. 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 . 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.. Typical positions of emancipation arise when the minor is married (R v D [1984] AC 778, 791) or in the military. 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. 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. Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. endobj 2023 The judge concluded that immunization would be in the best interests of the welfare of each child. 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. Gillick Competence. 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. 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