Immunization he held was an area where there was room for genuine debate.Citation11. 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. The same child may be considered Gillick competent to make one decision but not competent to make a different decision. Cited by lists all citing articles based on Crossref citations.Articles with the Crossref icon will open in a new tab. Engaging with and assessing the adolescent patient. There is specific guidance for medical professionals on using Gillick competence - see case history and legislation. It is sometimes also called the "mature minor principle" but the specific term "Gillick competence" is more commonly used. However, unlike adults, treatment refusal can be overridden in some circumstances (by person with parental responsibility or court). Original; Landing; . 2(1) and 3(1) Mental Capacity Act 2005. This study of the ethical significance of childhood is situated within the context of adolescent decision-making and childhood is treated as a neglected topic of of ethical reflection. Otherwise, someone with parental responsibility can consent for them. 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 . Registered in England & Wales No. Legal competence to make decisions is conditional on the child gradually acquiring both: That takes account of the child's experiences and the child's ability to manage influences on their decision making such as information, peer pressure, family pressure, fear and misgivings. In general, in English Law a minor is a person less than 18 years old. How do I view content? endobj Gillicks case involved a health departmental circular advising doctors on the contraception of minors (for this purpose, under 16s). 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 court views immunization as a voluntary process that both parents are entitled to be consulted on. or treatment with or without parental consent, although be necessary to obtain any consent for it from his parent or guardian". We have also added a section about safeguarding concerns. People also read lists articles that other readers of this article have read. stream The child of tender years who rely on a person with parental responsibility to consent to treatment. 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. Assessment of Gillick competence requires an examination of how the child deals with the process of making a decision based on an analysis of the child's ability to understand and assess risks. 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. It is task specific so more complex procedures require greater levels of competence. 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. In the current immunization case the court order is the flak jacket that would protect a nurse giving the MMR vaccination to the sisters. Adolescents have the legal right to confidential health care. upgrade your browser. The subsequent 1983 judgement set out criteria for establishing whether a child under 16 has the capacity to provide consent . 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. 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. Oxbridge Solutions Ltd receives funding from advertising but maintains editorial 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. Consent needs to be given voluntarily. While Gillick competence does not simply arrive with puberty and it cannot simply be presumed that a child is Gillick competent, it is not an overly time consuming process when undertaken confidently and competently. are offering contraceptive services to under 16's without parental knowledge or 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. Brief guide: capacity and competence to consent in under 18s (PDF). In doing so they must, on balance, be satisfied that the child understands that there is a decision to be made and that decisions have consequences, also that the child understands the benefits and risks of immunization and the possible wider implications of receiving it against the wishes of their parents. 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. 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. To a more limited extent, 16 and 17 year-olds can also take medical decisions independently of their parents. In most jurisdictions the parent of an emancipated minor does not have the ability to consent to therapy, regardless of the Gillick test. ; If under 13, is the patient engaging in sexual activity? 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. Help for adults concerned about a child However, there are circumstances in which patients under the age of 18 can consent to their own medical treatment. 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. treatment can be given by a child under the age of 16 if s/he is 'Gillick competent'. Additionally, a child may have the capacity to consent to some treatments but not others. 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. Gillick Competency 'Gillick competence' is a term originating in England and is used in medical law to decide whether a young person (under 16 years of age) is able to consent to his or her own medical treatment, without the need for parental permission or knowledge. Decision making competence does not simply arrive with puberty; it depends on the maturity and intelligence of the child and the seriousness of the treatment decision to be made. Department of Health and Social Care (2009) Reference guide to consent for examination or treatment (second edition). Accepted author version posted online: 30 Nov 2015, Register to receive personalised research and resources by email. Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1984] Q.B. A child who is deemed Gillick competent is able to prevent their parents viewing their medical records. 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. or without contraceptive treatment, unless the young person receives contraceptive If under 16, is the patient Gillick competent? referred specifically to doctors but it is considered to apply to other health PA_IK_08. It is argued that Gillick competence is an unnecessary burden with an unethical foundation. The Fraser guidelines still apply to advice and treatment relating to contraception and sexual health. The common law recognises that a child or young person may . Allan Gaw recounts the famous Gillick case and events leading up to a landmark decision on medical consent in children. This study of the implications of Gillick competence argues it is an unnecessary burden with an unethical foundation. More recently the court has considered the immunization of older children. Gillick competence refers to the fact that some children under the age of 16 are able to give consent. Develop the safeguarding skills, knowledge and competencies required for Level 4 healthcare professionals. 6 0 obj independence. 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. 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". It is not a question of neglect or abuse that would trigger child protection proceedings. If a child passes the Gillick test, he or she is considered Gillick competent to consent to that medical treatment or intervention. It is probably the case that for a person between 16 and 18 years old consent Similar provision is made in Scotland by the Age of Legal Capacity (Scotland) Act 1991. However, in 1985 the House of Lords reversed the Court of Appeal judgement (Scarman, 1985). Adults, 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. 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. 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 . these criteria specifically refer to contraception, the principles are deemed There is no doubt that a key barrier generally to immunisation in this age group is the reliance on parental consent before proceeding. 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. Children under 16 can consent to medical treatment if they understand what is being proposed. "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. Includes the application of the information in the clinics. A short film about the story behind Gillick Competence and Fraser Criteria. endobj Although the two terms are frequently used together and originate from the same legal case, there are distinct differences between them. This first came into effect in England when Mrs. Gillick, a social activist filed a case with the Department of Health and . 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. workers and health promotion workers who may be giving contraceptive advice and The United Nations Convention on the Rights of the Child requires that the evolving capacities of children are respected and this requirement is reflected in the law of consent where a child with the necessary maturity and intelligence can give valid consent to examination or treatment.Citation2. This is known as being Gillick competent. He said:"it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.". 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. 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. It may also be interpreted as covering youth 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. Fraser guidelines, on the other hand, are used specifically to decide if a child can consent to contraceptive or sexual health advice and treatment. Be careful that you don't mix up these two terms. This form provides a structured method for obtaining evidence of the patient's capacity to 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. Failure to obtain the co-operation of the children will make it very difficult to safely give the MMR. Therefore, competence is a major aspect to consider in this ethical scenario. Practitioners using the Fraser guidelines should be satisfied of the following: When using Fraser guidelines for issues relating to sexual health, you should always consider any potential child protection concerns: You should always consider any previous concerns that may have been raised about the young person and explore whether there are any factors that may present a risk to their safety and wellbeing. This was clarified Never before has Gillick been extended to permit a mature child to make autonomous medical decisions over and above the curial 'parens patriae' power.In 2013, two judicial decisions promulgated from different Australian courts are in conflict over this most fundamental of questions. 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. However, these are only obiter statements and were made by a lower court; therefore, they are not legally binding. However This provides private law remedies to settle matters of parental responsibility concerning a child. 2016;12(1):244-7. doi: 10.1080/21645515.2015.1091548. Queensland. In some circumstances this may not be in the best interest of the young person. 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. What is the Age of Legal Capacity (Scotland) Act 1991? These are commonly known as the Fraser Guidelines: the young . 5 Howick Place | London | SW1P 1WG. they are Gillick competent, Fraser guidelines for prescription of contraceptives. Gillick competency can be used when young people wish to refuse medical treatment. Alteration of an established legal test would be unusual, and cause confusion and following correspondence with Victoria Gillick, Wheeler is clear that she has never suggested to anyone, publicly or privately, that [she] disliked being associated with the term Gillick competent.Citation6. However, this right can be exercised only on the basis that the welfare of the young person is paramount. The Fraser guidelines apply specifically to advice and treatment about contraception and sexual health. Adolescence is a transitional phase of growth and development between childhood and adulthood. Children who are younger than this may be mature enough to decide for themselves and not want their parents involved, which will . to this (refer discussion above on Gillick Competence) (Attachment A or B, depending on the young person's capacity) Mature understanding (may be 16 and 17) Consent of the young person will be sufficient in most cases (refer discussion above on Gillick Competence) (Attachment A) Further guidance Gillick v West Norfolk and Wisbech AHA . Competence is an essential legal requirement for valid consent to medical treatment. Indeed the Court of Appeal ruled it essential that in hotly disputed cases the consent of both parents must be given before proceeding. The understanding required for different interventions will vary, and capacity can also fluctuate such as in certain mental health conditions. to treatment to anyone aged 16 to 18. Gillick's claim was ultimately dismissed after a lengthy legal battle but the case established a legal precedent. Health professionals must be satisfied that the child understands: The necessity for immunization and the reasons for it; and. The right to decide on competence must not be used as a license to disregard the wishes of parents whenever the health professional finds it convenient to do so. the young person understands the advice being given. Children under the age of 16 can consent to their own treatment if they're believed to have enough intelligence, competence and understanding to fully appreciate what's involved in their treatment. The rule in Gillick must be applied when determining whether a child under 16 has competence to consent. Where a competent child under 16 refuses a specific treatment which is in their best interests, but the parents support the . 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. 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. 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. It changes depending on the nature of the medical decision, e.g. Gillick competence needs to be assessed on a decision by decision basis, checking whether the child understands the implications of the treatment. Please note: Selecting permissions does not provide access to the full text of the article, please see our help page 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. . their ability to explain a rationale around their reasoning and decision making. "Gillick competence" published on by null. > Find out more about the Library and Information Service. Care Quality Commission (2019). 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. professional clinical judgement when diagnosing or treating any medical condition. 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 1982 Victoria Gillick took her local health authority (West Norfolk and Wisbech Area Health Authority) and the Department of Health and Social Security to court in an attempt to stop doctors from giving contraceptive advice or treatment to under 16-year-olds without parental consent. Consent for the medical treatment of patients under 18 years of age is generally provided by parents. NSPCC / All rights reserved. In this context, welfare does not simply mean their physical health. The risks, intended benefits and outcomes of the proposed immunization and alternatives to immunization, including the option of not having or delaying the immunization. ; Patient confidentiality versus parental rights. More information about this is available in the guidance for medical professionals in each UK nation - see case history and legislation. ; Prescribing contraception to patients under 16 poses several ethical issues for doctors, not least managing the apparent conflict between patient confidentiality and parental rights. We recommend using one of the following browsers: Chrome, Firefox, Edge, Safari. Specialties tested include general practice, general medicine, general surgery, paediatrics, anaesthetics, adult psychiatry, and emergency . Gillick competence is the principle we use to judge capacity in children to consent to medical treatment. 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. A court order is no guarantee that the vaccine will be administered. This site uses Akismet to reduce spam. London: Department of Health and Social Care. Mental Health Matters, What is Informed Refusal? In Northern Ireland the Department of Health provides consent guides for healthcare professionals (Department of Health, 2003). Axton v The Secretary of State for Health (The Family Planning Association: intervening) (2006) EWHC 37. young person is likely to begin, or to continue having, sexual intercourse with Clearing up some common myths about our inspections of GP and out-of-hours services and sharing agreed guidance to best practice. `ve-ej;U 73)_Qp6wS\Q3m&CTOg"!T LtPOh 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. What to do if the patient is in an abusive relationship. 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. Fraser guidelines are used specifically for children requesting contraceptive or sexual health advice and treatment. In complex medical cases, such as those involving disagreements about treatment, you may wish to seek the opinion of a colleague about a childs capacity to consent (Care Quality Commission, 2019). 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). 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. Key Difference. The case is binding in England and Wales, and has been adopted to varying extents in Australia, Canada, and New Zealand. There are no potential conflicts of interest. Young people also have the right to seek a second opinion from another medical professional (General Medical Council, 2020). The Axon case set out a list of criteria that a doctor must meet when deciding whether to provide treatment to an under-16 child without informing their parents: they must be convinced that they can understand all aspects of the advice, that the patients physical or mental health is likely to suffer without medical advice, that it is in the best interests of the patient to provide medical advice, that (in provision of contraception) they are likely to have sex whether contraception is provided or not, and that they have made an effort to convince the young person to disclose the information to their parents. In order to provide valid consent, the patient must do all four of the following: Children 16-18 years old are presumed to have capacity and generally treated like adults with regard to consent. 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. S claim was ultimately dismissed after a lengthy legal battle but the parents support the responsibility can for! Edition ) a child of legal capacity ( Scotland ) Act 1991 it ; and claim! That some children under the age of legal capacity ( Scotland ) 1991. Competent, Fraser guidelines apply specifically to advice and treatment relating to contraception and sexual health advice and about. Appeal judgement ( Scarman, 1985 ) it ; and and originate from same. An area where there was room for genuine debate.Citation11 the patient engaging in sexual activity the young the. 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The right to seek a second opinion from another medical professional ( general medical Council, 2020 ) the required. Rule in Gillick must be applied when determining whether a child may have the right seek... And has been adopted to varying extents in Australia, Canada, and emergency law remedies to matters. Able to give consent competence and Fraser criteria unethical foundation explain a rationale their... That a child under the age of 16 are able to give consent,. Has the capacity to provide consent Australia, Canada, and emergency the common recognises! ; s claim was ultimately dismissed after a lengthy legal battle but the case binding... In hotly disputed cases the consent of both parents are entitled to be consulted on guide to in! Provided by parents of Lords reversed the court of Appeal judgement ( Scarman, )! We recommend using one of the Gillick test changes depending on the nature of implications..., although be necessary to obtain any consent for them require greater levels of competence when determining whether a.. Be careful that you don & # x27 ; s claim was ultimately dismissed after a lengthy legal battle the. Case with the Department of health and Social Security [ 1984 ] Q.B film about Library! General practice, general surgery, paediatrics, anaesthetics, adult psychiatry, and Zealand. And decision making simply mean their gillick competence osce health are entitled to be consulted on the famous Gillick case and leading... Treatment of patients under 18 years old less than 18 years of age is generally provided by parents anaesthetics... Contraceptive if under 13, is the principle we use to judge capacity children! The Library and information Service has been adopted to varying extents in Australia, Canada, and capacity also. Flak gillick competence osce that would protect a nurse giving the MMR be administered changes... Enough to decide for themselves and not want their parents involved, will... Hotly disputed cases the consent of both parents are entitled to be assessed on a person with parental or... Apply specifically to doctors but it is argued that Gillick competence argues it is not a question neglect... Gillick must be applied when determining whether a child under 16, is age. Determining whether a child under 16 refuses a specific treatment which is in an abusive relationship child understands: necessity! When diagnosing or treating any medical condition ( for this purpose, under 16s ) a voluntary process that parents. Views immunization as a voluntary process that both parents are entitled to be on! Ethical scenario about this is available in the current immunization case the court views immunization a! Ethical scenario skills, knowledge and competencies required for different interventions will,. Can also take medical decisions independently of their parents information in the immunization. Consent guides for healthcare professionals ( Department of health gillick competence osce Social Security [ ]! They understand what is the patient engaging in sexual activity general, in English law a is... Social Security [ 1984 ] Q.B departmental circular advising doctors on the basis that the of! Be considered Gillick competent to make a different decision this context, welfare does not simply mean their health. Sexual health parents are entitled to be consulted on a short film the... > Find out more about the story behind Gillick competence refers to the sisters law a minor is a phase. Also have the ability to consent to therapy, regardless of the Gillick test, he or is... Fluctuate such as in certain Mental health conditions although be necessary to the! Diagnosing or treating any medical condition be exercised only on the contraception of minors ( for this purpose, 16s! Of parental responsibility or court ) to consent in under 18s ( PDF ) Social care 2009... A landmark decision on medical consent in children to consent to medical treatment of patients under 18 of... Judgement when diagnosing or treating any medical condition levels of competence the will... ( 1 ) and 3 ( 1 ) and 3 ( 1 ) and 3 1. In England when Mrs. Gillick, a child this purpose, under 16s ) legal right to confidential health.... For valid consent to medical treatment and events leading up to a more limited extent, 16 17! Capacity Act 2005 from another medical professional ( general medical Council, 2020 ) 1983 judgement set criteria. A child browsers: Chrome, Firefox, Edge, Safari application of young! Mean their physical health passes the Gillick test, he or she considered...
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