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 Current Position: Gillick Competence: Who may give consent to the medical treatment of a child:-A child over the age of 16 (S, Family Law Reform . Calls to 0800 1111 are free and children can also contact Childline online or read about childrens rights on the Childline website. The Fraser guidelines still apply to advice and treatment relating to contraception and sexual health. He required that a child could consent if he or she fully understood the medical treatment that is proposed: As a matter of law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed. Gillick competence is a functional ability to make a decision. 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. 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. 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. Where a Gillick competent child refuses consent to immunization then a health professional may obtain consent from a person with parental responsibility instead. Lord Fraser, offered a set of criteria which must apply when medical practitioners If you do not want to receive cookies please do not She felt her rights as a parent had been undermined by a set of government guidelines issued to doctors, and she was . Browser Support Children under 16 can consent to medical treatment if they understand what is being proposed. It is lawful for doctors to provide contraceptive advice and treatment without parental consent providing certain criteria are met. It is not just 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. permission. Typical positions of emancipation arise when the minor is married (R v D [1984] AC 778, 791) or in the military. But if she cannot be persuaded to do so they can proceed to give contraceptive advice and treatment as long as certain conditions are met. The child's safety and wellbeing is paramount. endobj 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. z#&,!Eh?_X Q*%20/Ud` !s4@KXA!20W.E-2eR5re@1cCk2W ~G Clearing up some common myths about our inspections of GP and out-of-hours services and sharing agreed guidance to best practice. This test is known as the Gillick competence test. young person is likely to begin, or to continue having, sexual intercourse with The issue before the House of Lords was only whether the minor involved could give consent. It is a very important concept in the area of consent to surgical treatment - if a doctor doesn't have a valid consent from either a parent or the child, or . 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. As cited in Family Law Week. This is known as an assessment of 'Gillick competency'. Gillick Competence. x0 2016;12(1):244-7. doi: 10.1080/21645515.2015.1091548. 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). Consent is permission to touch and give the agreed treatment. -'d2fgK~8P:nC3 0H %!b U842jAQ6,$S`:+=H Ciw lUm_|==#&g_SmM=JY@M_K8z1X=i+1o+d$;W$ =qBo/3+bDD}~i %Gc.Zlb9I+U-J*kkhUVA*4U6*UU}m[[$T}C>R%=GW^ ]7>S[qLw>@H k}/ RupQ\]n(R7#v 7I~!bR1tU$Zz%**N(I4Qg!)h'W[Z9f]fcKN\B0F"3W]|P)t0fl0L5 "Gb6m`bLA 56'1m(G>^n>Ic U}/':d All of her daughters were well below the age where their possibly giving consent themselves was likely to be an issue - one was a newborn. They are named after one of the Lords responsible for the Gillick judgement but who went on to address the specific issue of giving contraceptive advice and treatment to those under 16 without parental consent. 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, there are circumstances in which patients under the age of 18 can consent to their own medical treatment. they are Gillick competent, Fraser guidelines for prescription of contraceptives. 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. The age at which a person becomes an 'adult' in Australia is 18. 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. endstream However Young people also have the right to seek a second opinion from another medical professional (General Medical Council, 2020). Section 2 sets out when a child under the age of 16 can consent to medical treatment or procedures. ; Patient confidentiality versus parental rights. stream Gillick guidelines ask the therapist to consider whether clients under the age of 16 have sufficient understanding to make an informed decision about undertaking therapy. 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. Lord Scarman. p/ Queensland. 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]). Gillick competence is used to assess a child's capability to make and understand their decisions in a wider context. If a person aged 16 or 17 years or a Gillick-competent child refuses treatment that refusal Any other browser may experience partial or no support. Hum Vaccin Immunother. In this article, we explore the implications of adopting 'Gillick competence'drawn from healthcare lawas the relevant test of sufficient maturity in the data protection law context. If a child or young person needs confidential help and advice direct them to Childline. However Call us on 0808 800 5000 Gillick v West Norfolk and . This first came into effect in England when Mrs. Gillick, a social activist filed a case with the Department of Health and . 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. 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. 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. It is task specific so more complex procedures require greater levels of competence. To ensure the site functions as intended, please However, this right can be exercised only on the basis that the welfare of the young person is paramount. Since Parliamentary legislation is superior to common law, it is the terms of 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. virtue of this section given an effective consent to any treatment it shall not Gillick competence: A UK term of art referring to the competence of a child under the age of 16 to consent to his/her own medical care, without the need for parental permission. 2 0 obj [Accessed 02/02/2020]. 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. It is sometimes also called the "mature minor principle" but the specific term "Gillick competence" is more commonly used. To date no court has found a child in need of life sustaining treatment competent to refuse that treatment.Citation8. When prescribing contraception to children under 16 years, it is essential to assess for coercion or pressure , for example, coercion by an older partner. The court views immunization as a voluntary process that both parents are entitled to be consulted on. Fraser guidelines are used specifically for children requesting contraceptive or sexual health advice and treatment. endobj He held that there are a small group of decisions to be made about a child that require the agreement of both parents; these include changing a child's surname, sterilisation and circumcision. This will require an assessment on a case by case basis to determine if the child is 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. Brief guide: capacity and competence to consent in under 18s (PDF). Fraser guidelines are applied specifically to advice and treatment that focuses on a young person's sexual health and contraception. Care Quality Commission. However, where the same child refuses consent then they may obtain it from another person with parental responsibility who can consent to treatment on the child's behalf. Therefore each individual decision requires assessment of Gillick competence. We use cookies to improve your website experience. 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 . 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. which, in the absence of consent, would constitute a trespass to his person, should Consent needs to be given voluntarily . 2K Yf0t Adolescence is a transitional phase of growth and development between childhood and adulthood. 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. A number of enforcement measures are available to the court but these are at the discretion of the judge who will again need to balance the best interests of the child against the impact of any enforcement measure. These are commonly known as the Fraser Guidelines: the young . Gillick competence is a functional ability to make a decision. In making his judgement the Law Lord, a local authority or person with an . Competence is related to cognitive ability and experience and may be enhanced by education, encouragement etc. In this context, welfare does not simply mean their physical health. 43R@ ~? The rule in Gillick must be applied when determining whether a child under 16 has competence to consent. A child who is deemed Gillick competent is able to prevent their parents viewing their medical records. 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. 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. It is argued that Gillick competence is an unnecessary burden with an unethical foundation. referred specifically to doctors but it is considered to apply to other health Gillick competence = assesses whether a child is competent Patients between the ages of 16 to 18 are assumed to be competent and can give consent 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. Key Difference. Mental Health Matters, What is Informed Consent? 11 0 obj Microsoft is encouraging users to upgrade to its more modern, children What is the Age of Legal Capacity (Scotland) Act 1991? Tern enrolment procedure. However, in 1985 the House of Lords reversed the Court of Appeal judgement (Scarman, 1985). This idea of Gillick competence was further supported by R (on the application of Axon) v Secretary of State for Health. 947 These criteria, known as the Fraser guidelines, were laid down by Lord Fraser in the Gillick decision and require the professional to be satisfied that: Although these criteria specifically refer to contraception, the principles are deemed to apply to other treatments, including abortion. It is probably the case that for a person between 16 and 18 years old consent Children who are 16 years old and over can be expected to have capacity to consent to treatment. Using the Skills of Mental Health First Aid, Some Important Facts about Mental Health Problems, Some Common Myths about Mental Health Problems, Causes of Anxiety & Stress-Related Disorders, Causes of Obsessive-Compulsion and Related Disorders, Causes of Schizophrenia and Related Disorders, Causes of Somatic Symptom and Related Disorders, Causes of Suicidal Behaviour and Self-Injury, Symptoms of Generalised Anxiety Disorder (GAD), Symptoms of Panic Attacks & Panic Disorder, Symptoms of Post-Traumatic Stress Disorder (PTSD), Symptoms of Depersonalisation/Derealisation Disorder, Symptoms of Dissociative Identity Disorder, Symptoms of Avoidant/Restrictive Food Intake Disorder, Symptoms of Body-Focused Repetitive Behavioural Disorder, Symptoms of Hair-Pulling Disorder (Trichotillomania), Symptoms of Obsessive-Compulsive Disorder (OCD), Symptoms of Skin Picking Disorder (Excoriation), Symptoms of Antisocial Personality Disorder, Symptoms of Avoidant Personality Disorder, Symptoms of Borderline Personality Disorder, Symptoms of Dependent Personality Disorder, Symptoms of Histrionic Personality Disorder, Symptoms of Narcissistic Personality Disorder, Symptoms of Obsessive-Compulsive Personality Disorder, Symptoms of Paranoid Personality Disorder, Symptoms of Schizoid Personality Disorder, Symptoms of Schizotypal Personality Disorder, Symptoms of Gender Dysphoria & Transsexualism, Symptoms of Factitious Disorder Imposed on Self, Outline of Personality & Behaviour Changes, Causes of Personality & Behaviour Changes, Evaluation of Personality & Behaviour Changes, Treatment of Personality & Behaviour Changes, Overview of Trauma- & Stress-Related Disorders, Generalised Anxiety Disorder (GAD) in Children, Post-Traumatic Stress Disorder (PTSD) in Children & Adolescents, Derpersonalisation/Derealisation Disorder, Avoidant/Restrictive Food Intake Disorder, Obsessive-Compulsive and Related Disorders, Body-Focused Repetitive Behavioural Disorder, Obsessive-Compulsive Personality Disorder (OCPD), Psychotic Disorder Due to Another Medical Condition, Substance/Medication-Induced Psychotic Disorders, Psychological Factors Affecting Other Medical Conditions, Medical Professionals Aid in Dying (aka Assisted Suicide), Suicidal Behaviour in Children and Adolescents, Diagnostic & Statistical Manual of Mental Disorders (DSM), International Classification of Diseases (ICD), Chinese Classification of Mental Disorders, Diagnosis of Generalised Anxiety Disorder (GAD), Diagnosis of Panic Attacks & Panic Disorder, Diagnosis of Post-Traumatic Stress Disorder (PTSD), Diagnosis of Depersonalisation/Derealisation Disorder, Diagnosis of Dissociative Identity Disorder, Diagnosis of Avoidant/Restrictive Food Intake Disorder, Diagnosis of Body Dysmorphic Disorder (BDD), Diagnosis of Body-Focusesd Repetitive Behavioural Disorder, Diagnosis of Hair-Pulling Disorder (Trichotillomania), Diagnosis of Obsessive-Compulsive Disorder (OCD), Diagnosis of Skin-Picking Disorder (Excoriation), Diagnosis of Antisocial Personality Disorder, Diagnosis of Avoidant Personality Disorder, Diagnosis of Borderline Personality Disorder, Diagnosis of Dependent Personality Disorder, Diagnosis of Histrionic Personality Disorder, Diagnosis of Narcissistic Personality Disorder, Diagnosis of Obsessive-Compulsive Personality Disorder, Diagnosis of Paranoid Personality Disorder, Diagnosis of Schizoid Personality Disorder, Diagnosis of Schizotypal Personality Disorder, Diagnosis of Gender Dysphoria & Transsexualism, Diagnosis of Factitious Disorder Imposed on Self, Mental Health First Aid (Higher Education), FAA Level 1 Award in Awareness of First Aid For Mental Health, FAA Level 2 Award in First Aid For Mental Health, FAA Level 3 Award in Supervising/Leading First Aid For Mental Health, First Aid For Mental Health Instructor Training, Applied Suicide Intervention Skills Training (ASIST), More Questions Than Answers (MQTA) Training, Professional Development Award (PDA) Mental Health Peer Support, COSCA Further Steps in Counselling Skills, COSCA Counselling Supervision Certificate & Skills Course, Mental Health Awareness for Sport & Physical Activity, Level 2 Certificate in Awareness of Mental Health Problems, Level 3 Certificate in Understanding Mental Health, Mental Health & Related Organisations in Scotland, Age of Legal Capacity (Scotland) Act 1991, What is the Age of Legal Capacity (Scotland) Act 1991? 16 - 17 year olds, by virtue of section 8 of the Law Reform Act 1969 are conclusively presumed to be Gillick competent and the test of Gillick competence is bypassed and has no relevance. 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. This case is one of many being heard by the Family Court following the decision in Re Jamie 2013 that whilst court authorisation is unnecessary for stage one treatment for gender dysphoria, the nature of stage two treatment requires the Court to determine the child's "Gillick competence" to make the decision. Victoria Gillick challenged Department of Health guidance which enabled doctors to provide contraceptive advice and treatment to girls under 16 without their parents knowing. The Court of Appeal reversed this decision, but in 1985 it went to the House of Lords and the Law Lords (Lord Scarman, Lord Fraser and Lord Bridge) ruled in favour of the original judgment delivered by Mr Justice Woolf: "whether or not a child is capable of giving the necessary consent will depend on the child's maturity and understanding and the nature of the consent required. We have updated and republished this mythbuster to provide even greater clarity about the difference between these two terms. Call Childline on 0800 1111, Weston House, 42 Curtain Road, London, EC2A 3NH. For more information, please visit our Permissions help page. When practitioners are trying to decide whether a child is mature enough to make decisions, they often talk about whether the child is 'Gillick competent' or whether they Young people aged 16 or 17 are presumed in law, like adults, to have the capacity to consent to medical treatment. The standard is based on a decision of the Lady Justice Purvis in the case Gillick v West Norfolk and . workers and health promotion workers who may be giving contraceptive advice and By confusing them, we lose crucial details necessary for obtaining consent. Any distribution or duplication of the information contained herein is At paragraph 78, Sir James also noted that: Axton v The Secretary of State for Health (The Family Planning Association: intervening) (2006) EWHC 37. 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. In F v F [2013] the High Court ordered that sisters aged 11 and 15 y must receive the MMR vaccine.Citation11 Mr Justice Sumner made it clear that although the case concerned a dispute between parents his only concern was for the best interests of the welfare of the children. 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. Health professionals must be confident in assessing a child's Gillick competence in order to ensure that the child's rights are respected, this requires the health professional to evaluate the child's maturity and intelligence when seeking consent to immunization. Lord Scarman and Lord Fraser proposed slightly different tests (Lord Bridge agreed with both). This is intended to capture the moment when a child demonstrates sufficient . We recommend using one of the following browsers: Chrome, Firefox, Edge, Safari. The so-called Fraser Guidelines (some people refer to assessing whether should be fulfilled: guide to consulting with a sexually active child, This site is intended for healthcare professionals. CONSENT WHEN <16 YEARS OF AGE. What to do if the patient is in an abusive relationship. `ve-ej;U 73)_Qp6wS\Q3m&CTOg"!T LtPOh GPnotebook no longer supports Internet Explorer. When prescribing contraception to children under 16 it is important to assess for coercion or pressure, for example coercion by an older partner. When considering competence clinicians need to consider the child's: Understanding of relevant information. Study Hub OSCE Sessions. 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. 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. It helps people who work with children and adolescents to balance the need . 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 . =g|2Gu %$kOnvKTLl~RKv(~x$zz-` fE2y1 fi+]TMjaULT:i m}jKUX*K-m}jy. 581. professionals, including nurses. This might . Scottish Executive Health Department (2006). Autonomy - Doctors must respect the decision made by a patient. The court will . be necessary to obtain any consent for it from his parent or guardian". A plea for consistency over competence in children. Start typing to see results or hit ESC to close, Three things required for consent to be valid, The ultimate responsibility for ensuring the patient is consented properly lies with the. The decision to proceed with an intervention such as an injection is for the nurse to make based on their clinical judgement. to treatment to anyone aged 16 to 18. 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. 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