Gillick competence

Last updated

Badge worn by some in protest against Gillick's campaign in the early 1980s. Here, the call to "Reverse Gillick" refers to reversing the Court of Appeal judgment, not the subsequent House of Lords judgment that overturned it. Anti-Victoria Gillick campaign badge, 1985.jpg
Badge worn by some in protest against Gillick's campaign in the early 1980s. Here, the call to "Reverse Gillick" refers to reversing the Court of Appeal judgment, not the subsequent House of Lords judgment that overturned it.

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.

Contents

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. [1] The case is binding in England and Wales, and has been adopted to varying extents in Australia, Canada, and New Zealand. [2] [3] Similar provision is made in Scotland by the Age of Legal Capacity (Scotland) Act 1991. In Northern Ireland, although separate legislation applies, the then Department of Health and Social Services stated that there was no reason to suppose that the House of Lords' decision would not be followed by the Northern Ireland courts.

The Gillick decision

Gillick's case involved a health departmental circular advising doctors on contraception for people under 16. The circular stated that the prescription of contraception was a matter for the doctor's discretion and that they could be prescribed to under-16s without parental consent. This matter was litigated because Victoria Gillick ran an active campaign against the policy. Gillick sought a declaration that prescribing contraception was illegal because the doctor would commit an offence of encouraging sex with a minor and that it would be treatment without consent as consent vested in the parent; she was unsuccessful before the High Court of Justice, but succeeded in the Court of Appeal. [4]

The issue before the House of Lords was only whether the minor involved could give consent. "Consent" here was considered in the broad sense of consent to battery or assault: in the absence of patient consent to treatment, a doctor, even if well-intentioned, might be sued/charged.

The House of Lords focused on the issue of consent rather than a notion of 'parental rights' or parental power. In fact, the court held that 'parental rights' did not exist, other than to safeguard the best interests of a minor. The majority held that in some circumstances a minor could consent to treatment, and that in these circumstances a parent had no power to veto treatment, [5] building on the judgement by Lord Denning in Hewer v Bryant that parental rights were diminishing as the age of a child increases. [6] [7] [8]

Lord Scarman and Lord Fraser proposed slightly different tests (Lord Bridge agreed with both). Lord Scarman's test is generally considered to be the test of 'Gillick competency'. He required that a child could consent if they 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.

— Lord Scarman [1]

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. It lays down that the authority of parents to make decisions for their minor children is not absolute, but diminishes with the child's evolving maturity. The result of Gillick is that in England and Wales today, except in situations which are regulated by statute, 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 their own mind on the matter requiring decision.

Subsequent developments

A child who is deemed "Gillick competent" is able to prevent their parents viewing their medical records. Thus medical staff will not make a disclosure of medical records of a child who is deemed "Gillick competent" unless consent is manifest. [9]

In most jurisdictions the parent of an emancipated minor does not have the ability to consent to therapy, regardless of the Gillick test. Typical positions of emancipation arise when the minor is married (R v D [1984] AC 778, 791) or in the military.[ citation needed ]

The nature of the standard remains uncertain. 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".[ citation needed ]

As of May 2016, it appeared to Funston and Howard—two researchers working on health education—that some recent legislation worked explicitly to restrict the ability of Gillick competent children to consent to medical treatment outside of clinical settings. For example, parental consent is required for the treatment of children with asthma using standby salbutamol inhalers in schools. [10] These restrictions have yet to be tested in court.

R and W

The decisions In re R (1991) [11] and Re W (1992) [12] (especially Lord Donaldson) contradict the Gillick decision somewhat. 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. However, these are only obiter statements and were made by a lower court; therefore, they are not legally binding. However, the parens patriae jurisdiction of the court remains available allowing a court order to force treatment against a child's (and parent's) wishes. [13]

Axon

In a 2006 judicial review, R (on the application of Axon) v Secretary of State for Health, [14] the High Court affirmed Gillick in allowing for medical confidentiality for teenagers seeking an abortion. 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. 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 patient's 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.

2020s

In late 2020, Bell v Tavistock considered whether under-16s with gender dysphoria could be Gillick competent to consent to receiving puberty blockers. 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. [15] In late 2021, the Court of Appeal overturned Bell v Tavistock, as the clinic's policies and practices had not been found to be unlawful. [16]

During the COVID-19 pandemic, government guidance was circulated stating that some older children in secondary school would be considered Gillick competent to decide to be vaccinated against COVID-19 when a parent/guardian has not consented. [17] The Green Book, the UK's guidance on immunisation, states that under 16s "who understand fully what is involved in the proposed procedure" can consent "although ideally their parents will be involved". [18]

Australian law

In 1992, the High Court of Australia gave specific and strong approval for the application of Gillick competence in Secretary of the Department of Health and Community Services v JWB (1992) 175 CLR 189 , also known as Marrion's Case. This decision introduced Gillick competence as Australian common law, and has been applied in similar cases such as Department of Community Services v Y (1999) NSWSC 644.

There is no express authority in Australia on In re R and Re W, so whether or not a parent's right terminates when Gillick competence is applied is unclear. 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.

Legislation in South Australia and New South Wales clarifies the common law, establishing a Gillick-esque standard of competence but preserving concurrent consent between parent and child for patients aged 14–16 years.

Confusion regarding Gillick competence

On 21 May 2009, confusion[ whose? ] 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.[ citation needed ]

A persistent rumour arose that Victoria Gillick disliked having her name associated with the assessment of children's 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'". [19]

Fraser guidelines

It is lawful for doctors to provide contraceptive advice and treatment without parental consent providing certain criteria are met. 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: [20]

Although these criteria specifically refer to contraception, the principles are deemed to apply to other treatments, including abortion. [21] Although the judgment in the House of Lords referred specifically to doctors, it is considered by the Royal College of Obstetricians and Gynaecologists (RCOG) to apply to other health professionals, "including general practitioners, gynaecologists, nurses, and practitioners in community contraceptive clinics, sexual health clinics and hospital services". [22] 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.[ citation needed ]

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. However, this right can be exercised only on the basis that the welfare of the young person is paramount. In this context, welfare does not simply mean their physical health. 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". Usually, when a parent wants to overrule a young person's decision to refuse treatment, health professionals will apply to the courts for a final decision. [22]

An interesting aside to the Fraser guidelines is that many[ weasel words ] regard Lord Scarman's judgment as the leading judgement in the case, but because Lord Fraser's 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,[ citation needed ] as for example cited in the RCOG circular. [22]

See also

Related Research Articles

<span class="mw-page-title-main">Informed consent</span> Need and process for obtaining subject approval prior to treatment or research

Informed consent is a principle in medical ethics, medical law and media studies, that a patient must have sufficient information and understanding before making decisions about their medical care. Pertinent information may include risks and benefits of treatments, alternative treatments, the patient's role in treatment, and their right to refuse treatment. In most systems, healthcare providers have a legal and ethical responsibility to ensure that a patient's consent is informed. This principle applies more broadly than healthcare intervention, for example to conduct research and to disclose a person's medical information.

In common law, battery is a tort falling under the umbrella term 'trespass to the person'. Entailing unlawful contact which is directed and intentional, or reckless and voluntarily bringing about a harmful or offensive contact with a person or to something closely associated with them, such as a bag or purse, without legal consent.

A legal guardian is a person who has been appointed by a court or otherwise has the legal authority to make decisions relevant to the personal and property interests of another person who is deemed incompetent, called a ward. For example, a legal guardian might be granted the authority to make decisions regarding a ward's housing or medical care or manage the ward's finances. Guardianship is most appropriate when an alleged ward is functionally incapacitated, meaning they have a lagging skill critical to performing certain tasks, such as making important life decisions. Guardianship intends to serve as a safeguard to protect the ward.

Emancipation of minors is a legal mechanism by which a minor before attaining the age of majority is freed from control by their parents or guardians, and the parents or guardians are freed from responsibility for their child. Minors are normally considered legally incompetent to enter into contracts and to handle their own affairs. Emancipation overrides that presumption and allows emancipated children to legally make certain decisions on their own behalf.

Eisenstadt v. Baird, 405 U.S. 438 (1972), was a landmark decision of the U.S. Supreme Court that established the right of unmarried people to possess contraception on the same basis as married couples.

<i>Bolam v Friern Hospital Management Committee</i> English landmark tort law case

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. This rule is known as the Bolam test, and states that if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent. Bolam was rejected in the 2015 Supreme Court decision of Montgomery v Lanarkshire Health Board in matters of informed consent.

In United States and Canadian law, competence concerns the mental capacity of an individual to participate in legal proceedings or transactions, and the mental condition a person must have to be responsible for his or her decisions or acts. Competence is an attribute that is decision-specific. Depending on various factors which typically revolve around mental function integrity, an individual may or may not be competent to make a particular medical decision, a particular contractual agreement, to execute an effective deed to real property, or to execute a will having certain terms.

Many jurisdictions have laws applying to minors and abortion. These parental involvement laws require that one or more parents consent or be informed before their minor daughter may legally have an abortion.

Victoria D. M. Gillick 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. The ruling established the term "Gillick competence" to describe whether a young person below the age of 16 is able to consent to his or her own medical treatment, without the need for parental permission or knowledge.

<i>Secretary of the Department of Health and Community Services v JWB</i>

Secretary of the Department of Health and Community Services v JWB and SMB, commonly known as Marion's Case, is a leading decision of the High Court of Australia, concerning whether a child has the capacity to make decisions for themselves, and when this is not possible, who may make decisions for them regarding major medical procedures. It largely adopts the views in Gillick v West Norfolk Area Health Authority, a decision of the House of Lords in England and Wales.

<i>Re Alex</i> Judgement of the Family Court of Australia

Re Alex was a legal case decided in the Family Court of Australia on 13 April 2004. It examined the rights of a thirteen-year-old adolescent affirming his maleness and seeking hormonal medical treatment "Sex Affirmation Treatment."

This is a timeline of reproductive rights legislation, a chronological list of laws and legal decisions affecting human reproductive rights. Reproductive rights are a sub-set of human rights pertaining to issues of reproduction and reproductive health. These rights may include some or all of the following: the right to legal or safe abortion, the right to birth control, the right to access quality reproductive healthcare, and the right to education and access in order to make reproductive choices free from coercion, discrimination, and violence. Reproductive rights may also include the right to receive education about contraception and sexually transmitted infections, and freedom from coerced sterilization, abortion, and contraception, and protection from practices such as female genital mutilation (FGM).

Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 is an important House of Lords case in English tort law, specifically medical negligence, concerning the duty of a surgeon to inform a patient of the risks before undergoing an operation.

Child euthanasia is a form of euthanasia that is applied to children who are gravely ill or have significant birth defects. In 2005, the Netherlands became the first country since the end of Nazi Germany to decriminalize euthanasia for infants with hopeless prognosis and intractable pain. Nine years later, Belgium amended its 2002 Euthanasia Act to extend the rights of euthanasia to minors. Like euthanasia, there is world-wide public controversy and ethical debate over the moral, philosophical and religious issues of child euthanasia.

The mature minor doctrine is a rule of law found in the United States and Canada accepting that an unemancipated minor patient may possess the maturity to choose or reject a particular health care treatment, sometimes without the knowledge or agreement of parents, and should be permitted to do so. It is now generally considered a form of patients rights; formerly, the mature minor rule was largely seen as protecting health care providers from criminal and civil claims by parents of minors at least 15.

Carey v. Population Services International, 431 U.S. 678 (1977), was a landmark decision of the U.S. Supreme Court in which the Court held that it was unconstitutional to prohibit anyone other than a licensed pharmacist to distribute nonprescription contraceptives to persons 16 years of age or over, to prohibit the distribution of nonprescription contraceptives by any adult to minors under 16 years of age, and to prohibit anyone, including licensed pharmacists, to advertise or display contraceptives.

Sterilization law is the area of law, within reproductive rights, that gives a person the right to choose or refuse reproductive sterilization and governs when the government may limit this fundamental right. Sterilization law includes federal and state constitutional law, statutory law, administrative law, and common law. This article primarily focuses on laws concerning compulsory sterilization that have not been repealed or abrogated and are still good laws, in whole or in part, in each jurisdiction.

Adolescent sexuality has been a topic observed and studied within the United Kingdom throughout the 20th century and in the 21st century. Associated organisations have been established to study and monitor trends and statistics as well as provide support and guidance to adolescents.

In the law of England and Wales, best interest decisions are decisions made on behalf of people who do not have mental capacity to make them for themselves at the time the decision needs to be taken. Someone who has the capacity to make a decision is said to be "capacitous". Since 2007, there has been a dedicated court with jurisdiction over mental capacity: the Court of Protection, although it mostly deals with adults. Most applications to make decisions on behalf of a child are still dealt with by the Family Court.

<i>Bell v Tavistock</i> 2021 UK case regarding puberty blockers

Bell v Tavistock was a case before the Court of Appeal on the question of whether puberty blockers could be prescribed to under-16s with gender dysphoria. The Court of Appeal said that "it was for clinicians rather than the court to decide on competence" to consent to receive puberty blockers.

References

  1. 1 2 "Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7". British and Irish Legal Information Institute. 1985. Retrieved 19 February 2017.
  2. ↑ "Gillick and the Consent of Minors: Contraceptive Advice and Treatment in New Zealand" (PDF). Victoria University of Wellington Law Review. 2009. Retrieved 19 February 2017.
  3. ↑ Lennings, Nicholas J. (13 July 2015). "Are competent children autonomous medical decision makers? New developments in Australia". Journal of Law and the Biosciences. 2 (2): 459–468. doi: 10.1093/jlb/lsv028 . PMC   5034372 . PMID   27774207.
  4. ↑ "1983: Mother loses contraception test case". On this day. BBC. 2008. Retrieved 19 February 2017.
  5. ↑ Gilmore, Stephen; Glennon, Lisa (2016). Hayes and Williams' Family Law. Oxford: Oxford University Press. p. 420. ISBN   9780198753087.
  6. ↑ Willow, Carolyne (21 December 2021). "Children's rights legal digest – December 2021". Article 39.
  7. ↑ "Gillick v West Norfolk and Wisbech Area Health Authority and another" (PDF). 17 October 1985.
  8. ↑ Stone, Christopher (June 2010). "The legal framework empowering children under 19 to make decisions in relation to their medical treatment examined through the prism of international human rights obligations" (PDF). CA Stone Medical And Legal.
  9. ↑ "Brief guide: capacity and competence to consent in under 18s" (PDF). CQC. Retrieved 29 April 2020.
  10. ↑ Funston, Wendy; Howard, Simon J. (5 May 2016). "A cross-sectional questionnaire study of the rules governing pupils' carriage of inhalers for asthma treatment in secondary schools in North East England". PeerJ. 4: e2006. doi: 10.7717/peerj.2006 . PMC   4860314 . PMID   27168999.
  11. ↑ Great Britain. England. Court of Appeal (11 July 1991). "In re R (A Minor) (Wardship: Consent to Treatment)". The Weekly Law Reports. 1991 Oct 25: 592–608. PMID   12041269.
  12. ↑ Great Britain. England. Court of Appeal, Civil Division (10 July 1992). "Re W (A Minor) (Medical Treatment)". The All England Law Reports. [1992]4: 627–49. PMID   11648298.
  13. ↑ "Young People who Refuse Life Sustaining Treatment" (PDF). School of Law. University of Leeds. Retrieved 19 February 2017.
  14. ↑ "Axon, R (on the application of) v Secretary of State for Health & Anor [2006] EWHC 37 (Admin) (23 January 2006)".
  15. ↑ "Bell & Anor v The Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274 (Admin) (01 December 2020)". bailii.org. BAILII. Retrieved 7 May 2021(See at [144] especially.){{cite web}}: CS1 maint: postscript (link)
  16. ↑ "Bell and another -v- The Tavistock and Portman NHS Foundation Trust and others". www.judiciary.uk. 17 September 2021. Retrieved 17 September 2021.
  17. ↑ "NHS to deliver COVID-19 vaccines to 12- to 15-year-olds: your questions answered – The Education Hub". educationhub.blog.gov.uk. 17 September 2021. Retrieved 10 June 2024.
  18. ↑ "Consent: the green book, chapter 2". GOV.UK. 13 October 2023. Retrieved 10 June 2024.
  19. ↑ Wheeler, R (2006). "Gillick or Fraser? A plea for consistency over competence in children". BMJ. 332 (7545): 807. doi:10.1136/bmj.332.7545.807. PMC   1432156 . PMID   16601020.
  20. ↑ A Cornock, Marc (July 2007). "Fraser guidelines or Gillick competence?" (PDF). Journal of Children's and Young People's Nursing. 1 (3): 142. doi:10.12968/jcyn.2007.1.3.24114.
  21. ↑ "Nigel's surgery 8: Gillick competency and Fraser guidelines". CQC. Retrieved 19 February 2017.
  22. 1 2 3 "Long-acting reversible contraception the effective and appropriate use of long-acting reversible contraception" (PDF). RCOG Press. October 2005. Archived from the original (PDF) on 3 December 2008.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.