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Gillick competence is a term originating in
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
and is used in
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 br ...
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. The standard is based on the 1985 judicial decision of the
House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
with respect to a case of the
contraception Birth control, also known as contraception, anticonception, and fertility control, is the use of methods or devices to prevent unwanted pregnancy. Birth control has been used since ancient times, but effective and safe methods of birth contr ...
advice given by an
NHS The National Health Service (NHS) is the umbrella term for the publicly funded healthcare systems of the United Kingdom (UK). Since 1948, they have been funded out of general taxation. There are three systems which are referred to using the " ...
doctor in ''Gillick v West Norfolk and Wisbech Area Health Authority''. The case is binding in England and Wales, and has been adopted to varying extents in Australia, Canada, and New Zealand. Similar provision is made in Scotland by the
Age of Legal Capacity (Scotland) Act 1991 The Age of Legal Capacity (Scotland) Act 1991 (c.50) is an Act of the Parliament of the United Kingdom applicable only in Scotland. It replaced the pre-existing rule of pupillage and minority with a simpler rule that a person has full legal cap ...
. 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 Circular may refer to: * The shape of a circle * ''Circular'' (album), a 2006 album by Spanish singer Vega * Circular letter (disambiguation) ** Flyer (pamphlet), a form of advertisement * Circular reasoning, a type of logical fallacy * Circula ...
advising doctors on
contraception Birth control, also known as contraception, anticonception, and fertility control, is the use of methods or devices to prevent unwanted pregnancy. Birth control has been used since ancient times, but effective and safe methods of birth contr ...
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 an activist,
Victoria Gillick Victoria D. M. Gillick (''née'' Gudgeon; born 1946, in Hendon) 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 pare ...
, 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 The High Court of Justice in London, known properly as His Majesty's High Court of Justice in England, together with the Court of Appeal of England and Wales, Court of Appeal and the Crown Court, are the Courts of England and Wales, Senior Cou ...
, but succeeded in the
Court of Appeal A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of t ...
. 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.
Lord Scarman Leslie George Scarman, Baron Scarman, (29 July 1911 – 8 December 2004) was an English judge and barrister, who served as a Law Lord until his retirement in 1986. Early life and education Scarman was born in Streatham but grew up on the bo ...
and
Lord Fraser The Lordship of Fraser was created in the Peerage of Scotland on 29 June 1633. when granted by letters patent to Andrew Fraser and his male descendants. The peerage expired in 1720, with the death of the 4th Lord Fraser, as a result of his part ...
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: 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. As such, medical staff will not make a disclosure of medical records of a child who is deemed "Gillick competent" unless
consent Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as und ...
is manifest. In most jurisdictions the parent of an
emancipated minor 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 norm ...
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''
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AC 778, 791) or in the military. The nature of the standard remains uncertain. The
court A court is any person or institution, often as a government 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 ...
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". 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. For example, parental consent is required for the treatment of children with
asthma Asthma is a long-term inflammatory disease of the airways of the lungs. It is characterized by variable and recurring symptoms, reversible airflow obstruction, and easily triggered bronchospasms. Symptoms include episodes of wheezing, cou ...
using standby
salbutamol Salbutamol, also known as albuterol and sold under the brand name Ventolin among others, is a medication that opens up the medium and large airways in the lungs. It is a short-acting β2 adrenergic receptor agonist which works by causing rel ...
inhalers in schools. These restrictions have yet to be tested in court.


''R'' and ''W''

The decisions ''In re R'' (1991) and ''Re W'' (1992) (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 ''Obiter dictum'' (usually used in the plural, ''obiter dicta'') is a Latin phrase meaning "other things said",''Black's Law Dictionary'', p. 967 (5th ed. 1979). that is, a remark in a legal opinion that is "said in passing" by any judge or arbi ...
statements and were made by a lower court; therefore, they are not legally binding. However, the
parens patriae ''Parens patriae'' is Latin for "parent of the nation" (lit., "parent of one's country"). 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 ...
jurisdiction of the court remains available allowing a court order to force treatment against a child's (and parent's) wishes.


''Axon''

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 Abortion is the termination of a pregnancy by removal or expulsion of an embryo or fetus. An abortion that occurs without intervention is known as a miscarriage or "spontaneous abortion"; these occur in approximately 30% to 40% of pregn ...
. 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 Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic ...
. 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 ''Bell and another v The Tavistock and Portman NHS Foundation Trust'', more often called simply ''Bell v Tavistock'', was a case before the Court of Appeal (England and Wales) on the question of whether puberty blockers could be prescribed to u ...
'' 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''. 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. In early September 2021, guidance circulated to NHS trusts stated that most 12- to 15-year-olds should be deemed "Gillick competent to provide
heir Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Officiall ...
own consent" to be vaccinated against COVID-19, despite the JCVI "fail ngto recommend Covid-19 vaccines for healthy 12- to 15-year-olds". Campaigner Molly Kingsley, who had co-founded the campaign group UsForThem over the issue , warned that "Were vaccination of children to happen on school premises without fully respecting the need for parental consent it would really prejudice parents' trust in schools." Epidemiologist and
SAGE Sage or SAGE may refer to: Plants * ''Salvia officinalis'', common sage, a small evergreen subshrub used as a culinary herb ** Lamiaceae, a family of flowering plants commonly known as the mint or deadnettle or sage family ** ''Salvia'', a large ...
member John Edmunds said that "if we allow infection just to run through the population, that's a lot of children who will be infected and that will be a lot of disruption to schools in the coming months."


Australian law

The Australian High Court gave specific and strong approval for the ''Gillick'' decision in "
Marion's Case ''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 themsel ...
", ''Secretary of the Department of Health and Community Services v JWB and SMB'' (1992) 175 CLR 189. The Gillick competence doctrine is part of Australian case law (see, e.g., ''DoCS v Y''
999 999 or triple nine most often refers to: * 999 (emergency telephone number), a telephone number for the emergency services in several countries * 999 (number), an integer * AD 999, a year * 999 BC, a year Books * ''999'' (anthology) or ''999: T ...
NSWSC 644). There is no express authority in Australia on ''In 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 competence

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 Birth control, also known as contraception, anticonception, and fertility control, is the use of methods or devices to prevent unwanted pregnancy. Birth control has been used since ancient times, but effective and safe methods of birth contr ...
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, but an editorial in the BMJ from 2006 claimed that Gillick said that she "has never suggested to anyone, publicly or privately, that hedisliked 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 Gillick decision 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 judgment in the House of Lords referred specifically to doctors, it is considered by the
Royal College of Obstetricians and Gynaecologists The Royal College of Obstetricians and Gynaecologists (RCOG) is a professional association based in London, United Kingdom. Its members, including people with and without medical degrees, work in the field of obstetrics and gynaecology, that is ...
(RCOG) to apply to other health professionals, "including general practitioners, gynaecologists, nurses, and practitioners in community contraceptive clinics, sexual health clinics and hospital services". 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 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, as for example cited in the RCOG circular.


See also

*
Age of consent The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. Consequently, an adult who engages in sexual activity with a person younger than the age of consent is unable to legally claim ...
* Dignity of risk *
Informed consent Informed consent is a principle in medical ethics and medical law, that a patient must have sufficient information and understanding before making decisions about their medical care. Pertinent information may include risks and benefits of treatme ...
*
Mature minor doctrine 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 ...
*
Mental capacity in England and Wales 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 decis ...


References


External links


West Norfolk and Wisbech Area Health Authority and the Department of Health and Social Security (Appellants)
986 Year 986 ( CMLXXXVI) was a common year starting on Friday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * August 17 – Battle of the Gates of Trajan: Emperor Basil II leads a Byz ...
AC 112,
986 Year 986 ( CMLXXXVI) was a common year starting on Friday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * August 17 – Battle of the Gates of Trajan: Emperor Basil II leads a Byz ...
1 FLR 229,
985 Year 985 ( CMLXXXV) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar. Events By place Europe * Summer – Henry II (the Wrangler) is restored as duke of Bavaria by Empress Theoph ...
UKHL 7. {{DEFAULTSORT:Gillick Competence Children's rights in England Medical ethics Health law in the United Kingdom English family case law 1985 in British law 1985 in England House of Lords cases Gillick Medical law