Gillick competence
Encyclopedia
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.
The standard is based on a decision of the House of Lords
in the case Gillick v West Norfolk and Wisbech Area Health Authority [1985
of minors (for this purpose, under sixteens). The circular stated that the prescription of contraception was a matter for the doctor's discretion, and that they could be prescribed to under sixteens without parental consent. This matter was litigated because an activist, Mrs. Victoria Gillick
(née
Gudgeon), ran an active campaign against the policy. Mrs 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.
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 focussed on the issue of consent rather than a notion of 'parental rights' or parental powers. 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.
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 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." Lord Scarman
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; except in situations that are regulated otherwise by statute, the 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.
jurisdiction of the court remains available allowing a court order to force treatment against a child's (and parent’s) wishes.
A child who is deemed "Gillick competent" is able to prevent their parents viewing their medical records. As such, medical staff will not make a disclosure of medical records of a child who is deemed "Gillick competent" unless consent
is manifest.
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.
The nature of the standard remains uncertain. The court
s 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".
175 CLR 189. The Gillick competence doctrine is part of Australian law (see e.g. DoCS vY [1999] NSWSC 644).
There is no express authority in Australia on Re R and Re W, so whether a parent’s right terminates 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.
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.
and focus on the desirability of parental involvement and the risks of unprotected sex in that area. A persistent rumour arose that Victoria Gillick disliked having her name associated with the assessment of children's capacity, although a recent editorial in the BMJ debunks this idea, quoting Victoria Gillick as saying that she "has never suggested to anyone, publicly or privately, that [she] disliked being associated with the term 'Gillick competent' ".
Although these criteria specifically refer to contraception, the principles are deemed to apply to other treatments, including abortion. Although the judgement in the House of Lords referred specifically to doctors, it is considered to apply to other health professionals, including nurses. 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.
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.
An interesting aside to the Fraser guidelines is that many regard Lord Scarman's judgment as the leading judgment in the case, but because Lord Fraser's judgment was shorter and set out in more specific terms - and in that sense more accessible to health and welfare professionals - it is his judgment that has been reproduced as containing the core principles.
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
and is used in medical law
Medical law
Medical law is the branch of law which concerns the prerogatives and responsibilities of medical professionals and the rights of the patient. It should not be confused with medical jurisprudence, which is a branch of medicine, rather than a branch of 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.
The standard is based on a decision of the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
in the case Gillick v West Norfolk and Wisbech Area Health Authority [1985
The Gillick decision
The Gillick case involved a health departmental circular advising doctors on the contraceptionContraception
Contraception is the prevention of the fusion of gametes during or after sexual activity. The term contraception is a contraction of contra, which means against, and the word conception, meaning fertilization...
of minors (for this purpose, under sixteens). The circular stated that the prescription of contraception was a matter for the doctor's discretion, and that they could be prescribed to under sixteens without parental consent. This matter was litigated because an activist, Mrs. Victoria Gillick
Victoria Gillick
Victoria D.M. Gillick is a British 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...
(née
NEE
NEE is a political protest group whose goal was to provide an alternative for voters who are unhappy with all political parties at hand in Belgium, where voting is compulsory.The NEE party was founded in 2005 in Antwerp...
Gudgeon), ran an active campaign against the policy. Mrs 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.
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 focussed on the issue of consent rather than a notion of 'parental rights' or parental powers. 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.
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 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." Lord Scarman
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; except in situations that are regulated otherwise by statute, the 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.
Subsequent developments
The decisions in Re R and Re W (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 patriaeParens patriae
Parens patriae is Latin for "parent of the nation." In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection...
jurisdiction of the court remains available allowing a court order to force treatment against a child's (and parent’s) wishes.
A child who is deemed "Gillick competent" is able to prevent their parents viewing their medical records. As such, medical staff will not make a disclosure of medical records of a child who is deemed "Gillick competent" unless consent
Consent
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
is manifest.
In most jurisdictions the parent of an emancipated minor
Emancipation of minors
An emancipated minor is a minor who is allowed to conduct a business or any other occupation on their own behalf or for their own account outside the influence of a parent or guardian. The minor will then have full contractual capacity to conclude contract with regard to the business. Whether...
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.
The nature of the standard remains uncertain. The court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s 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".
Australian law
The Australian High Court gave specific and strong approval for the Gillick decision in 'Marion's Case'Marion's Case
Marion's Case, the common name for the case Secretary of the Department of Health and Community Services v JWB and SMB, is one of the primary cases under Australian law for deciding whether a child has the capacity to make decisions for themselves, and when this is not possible, who may make...
175 CLR 189. The Gillick competence doctrine is part of Australian law (see e.g. DoCS vY [1999] NSWSC 644).
There is no express authority in Australia on Re R and Re W, so whether a parent’s right terminates 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.
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.
Confusion regarding Gillick competency
On 21 May 2009, confusion arose between Gillick competency, which identifies under-16s with the capacity to consent to their own treatment, and the Fraser guidelines, which are concerned only with contraceptionContraception
Contraception is the prevention of the fusion of gametes during or after sexual activity. The term contraception is a contraction of contra, which means against, and the word conception, meaning fertilization...
and focus on the desirability of parental involvement and the risks of unprotected sex in that area. A persistent rumour arose that Victoria Gillick disliked having her name associated with the assessment of children's capacity, although a recent editorial in the BMJ debunks this idea, quoting Victoria Gillick as saying that she "has never suggested to anyone, publicly or privately, that [she] disliked being associated with the term 'Gillick competent' ".
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 House of Lords' case and require the professional to be satisfied that:- the young person will understand the professional's advice;
- the young person cannot be persuaded to inform their parents;
- the young person is likely to begin, or to continue having, sexual intercourse with or without contraceptive treatment;
- unless the young person receives contraceptive treatment, their physical or mental health, or both, are likely to suffer;
- the young person's best interests require them to receive contraceptive advice or treatment with or without parental consent.
Although these criteria specifically refer to contraception, the principles are deemed to apply to other treatments, including abortion. Although the judgement in the House of Lords referred specifically to doctors, it is considered to apply to other health professionals, including nurses. 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.
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.
An interesting aside to the Fraser guidelines is that many regard Lord Scarman's judgment as the leading judgment in the case, but because Lord Fraser's judgment was shorter and set out in more specific terms - and in that sense more accessible to health and welfare professionals - it is his judgment that has been reproduced as containing the core principles.
Link
- http://www.brook.org.uk/content/M5_3_consenttreatment.asp