View source for Gillick competence

{{Short description|Medical legal term}}
{{Use dmy dates|date=April 2022}}
[[File:Anti-Victoria Gillick campaign badge, 1985.jpg|thumb|180px| 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.

The standard is based on the 1985 judicial decision of the [[Judicial functions of the House of Lords|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''.<ref name="1985case">{{cite web|title=Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7|url=http://www.bailii.org/uk/cases/UKHL/1985/7.html|website=British and Irish Legal Information Institute|access-date=19 February 2017|date=1985}}</ref> The case is binding in England and Wales, and has been adopted to varying extents in Australia, Canada, and New Zealand.<ref>{{cite web|title=Gillick and the Consent of Minors: Contraceptive Advice and Treatment in New Zealand|url=http://www.nzlii.org/nz/journals/VUWLawRw/2009/38.pdf|website=Victoria University of Wellington Law Review|access-date=19 February 2017|date=2009}}</ref><ref>{{cite journal|last1=Lennings|first1=Nicholas J.|title=Are competent children autonomous medical decision makers? New developments in Australia|journal=Journal of Law and the Biosciences|date=13 July 2015|volume=2|issue=2|pages=459–468|doi=10.1093/jlb/lsv028|pmid=27774207|pmc=5034372|doi-access=free}}</ref> 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 (Northern Ireland)|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 [[Department of Health (United Kingdom)|health departmental]] [[wiktionary:circular|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 (England and Wales)|Court of Appeal]].<ref>{{cite web|title=1983: Mother loses contraception test case|url=http://news.bbc.co.uk/onthisday/hi/dates/stories/july/26/newsid_2499000/2499583.stm|website=On this day|publisher=BBC|access-date=19 February 2017|date=2008}}</ref>

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 responsibility (access and custody)|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,<ref>{{cite book|last1=Gilmore|first1=Stephen|last2=Glennon|first2=Lisa|title=Hayes and Williams' Family Law|date=2016|publisher=Oxford University Press|location=Oxford|isbn=9780198753087|page=420}}</ref> building on the judgement by [[Tom Denning, Baron Denning|Lord Denning]] in ''Hewer v Bryant'' that parental rights were diminishing as the age of a child increases.<ref>{{Cite web |last=Willow |first=Carolyne |date=21 December 2021 |title=Children's rights legal digest – December 2021 |url=https://article39.org.uk/2021/12/21/childrens-rights-legal-digest-december-2021/ |website=Article 39}}</ref><ref>{{Cite web |date=17 October 1985 |title=Gillick v West Norfolk and Wisbech Area Health Authority and another |url=https://www.globalhealthrights.org/wp-content/uploads/2013/01/HL-1985-Gillick-v.-West-Norfolk-and-Wisbech-Area-Health-Authority-and-Anr..pdf}}</ref><ref>{{Cite web |last=Stone |first=Christopher |date=June 2010 |title=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 |url=https://www.medicalandlegal.co.uk/wp-content/uploads/2012/05/The-legal-framework-empowering-children-under-18-to-make-decisions-in-relation-to-their-medical-treatment-examined-through-the-prism-of-international-human-rights-obligations..pdf |website=CA Stone Medical And Legal}}</ref>

[[Leslie Scarman, Baron Scarman|Lord Scarman]] and [[Ian Fraser, Baron Fraser of Tullybelton|Lord Fraser]] proposed slightly different tests ([[Nigel Bridge, Baron Bridge of Harwich|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:

{{Blockquote|text=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.|author=Lord Scarman<ref name="1985case" />}}

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.<ref>{{cite web|title=Brief guide: capacity and competence to consent in under 18s|url=https://www.cqc.org.uk/sites/default/files/Brief_guide_Capacity_and_consent_in_under_18s%20v3.pdf|website=CQC|access-date=29 April 2020}}</ref>

In most jurisdictions the parent of an [[Emancipation of minors|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|date=September 2021}}

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".{{citation needed|date=September 2021}}

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.<ref>{{cite journal |last1=Funston |first1=Wendy |last2=Howard |first2=Simon J. |date=5 May 2016 |title=A cross-sectional questionnaire study of the rules governing pupils' carriage of inhalers for asthma treatment in secondary schools in North East England |journal=PeerJ |volume=4 |doi=10.7717/peerj.2006 |pages=e2006 |pmc=4860314 |pmid=27168999 |doi-access=free }}</ref> These restrictions have yet to be tested in court.

===''R'' and ''W''===
The decisions ''In re R'' (1991)<ref>{{cite journal|last1=Great Britain. England. Court of Appeal|title=In re R (A Minor) (Wardship: Consent to Treatment).|journal=The Weekly Law Reports|date=11 July 1991|volume=1991 Oct 25|pages=592–608|pmid=12041269}}</ref> and ''Re W'' (1992)<ref>{{cite journal|last1=Great Britain. England. Court of Appeal, Civil Division|title=Re W (A Minor) (Medical Treatment)|journal=The All England Law Reports|date=10 July 1992|volume=[1992]4|pages=627–49|pmid=11648298}}</ref> (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.<ref>{{cite web|title=Young People who Refuse Life Sustaining Treatment|url=http://www.law.leeds.ac.uk/assets/files/research/cfig/Young-People-who-Refuse-Life-Sustaining-Treatment-Briefing-Paper.pdf|website=School of Law|publisher=University of Leeds|access-date=19 February 2017}}</ref>

===''Axon''===
In a 2006 judicial review, ''R (on the application of Axon) v Secretary of State for Health'',<ref>{{Cite web|url=http://www.bailii.org/ew/cases/EWHC/Admin/2006/37.html|title=Axon, R (on the application of) v Secretary of State for Health & Anor [2006] EWHC 37 (Admin) (23 January 2006)}}</ref> 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 [[Gender dysphoria in children|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''.<ref>{{cite web |url=https://www.bailii.org/ew/cases/EWHC/Admin/2020/3274.html |title=Bell & Anor v The Tavistock And Portman NHS Foundation Trust [2020] EWHC 3274 (Admin) (01 December 2020) |author=<!--Not stated--> |date= |website=bailii.org |publisher=BAILII |access-date=2021-05-07 |postscript= (See at [144] especially.)}}</ref> 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.<ref>{{Cite web|title=Bell and another -v- The Tavistock and Portman NHS Foundation Trust and others|url=https://www.judiciary.uk/judgments/bell-and-another-v-the-tavistock-and-portman-nhs-foundation-trust-and-others/|access-date=2021-09-17|website=www.judiciary.uk|date=17 September 2021 |language=en-US}}</ref>

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 [[COVID-19 vaccines|vaccinated against COVID-19]] when a parent/guardian has not consented.<ref>{{Cite web |date=2021-09-17 |title=NHS to deliver COVID-19 vaccines to 12- to 15-year-olds: your questions answered – The Education Hub |url=https://educationhub.blog.gov.uk/2021/09/17/nhs-to-deliver-covid-19-vaccines-to-12-to-15-year-olds-your-questions-answered/ |access-date=2024-06-10 |website=educationhub.blog.gov.uk |language=en}}</ref> [[The Green Book (immunisation guidance, UK)|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".<ref>{{Cite web |date=2023-10-13 |title=Consent: the green book, chapter 2 |url=https://www.gov.uk/government/publications/consent-the-green-book-chapter-2 |access-date=2024-06-10 |website=GOV.UK |language=en}}</ref>

==Australian law==
{{No references|section|date=April 2023}}
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|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) [[Supreme Court of New South Wales|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{{Ndash}}16 years.

== Confusion regarding Gillick competence ==
On 21 May 2009, confusion{{whose|date=April 2020}} arose between Gillick competence, which identifies under-16s with the capacity to consent to their own treatment, and the [[#Fraser guidelines|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|date=April 2020}}

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{{'"}}.<ref>{{cite journal | last1 = Wheeler | first1 = R | year = 2006 | title = Gillick or Fraser? A plea for consistency over competence in children | url = http://bmj.bmjjournals.com/cgi/content/full/332/7545/807 | journal = BMJ | volume = 332 | issue = 7545| page = 807 | doi = 10.1136/bmj.332.7545.807 | pmid = 16601020 | pmc=1432156}}</ref>

==Fraser guidelines==<!-- [[Fraser competence]] redirects here -->
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:<ref>{{cite journal|last1=A Cornock|first1=Marc|title=Fraser guidelines or Gillick competence?|journal=Journal of Children's and Young People's Nursing|date=July 2007|volume=1|issue=3|pages=142|doi=10.12968/jcyn.2007.1.3.24114|url=http://oro.open.ac.uk/15910/1/Cornock_-_Fraser_guidelines_article.pdf}}</ref>
*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.<ref>{{cite web|title=Nigel's surgery 8: Gillick competency and Fraser guidelines|url=http://www.cqc.org.uk/content/nigels-surgery-8-gillick-competency-and-fraser-guidelines|website=CQC|access-date=19 February 2017|language=en}}</ref> 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".<ref name=rcog/> 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|date=August 2021}}

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.<ref name=rcog>{{cite news |title=Long-acting reversible contraception the effective and appropriate use of long-acting reversible contraception |publisher=RCOG Press |date=October 2005 |url=http://www.nice.org.uk/nicemedia/pdf/CG030fullguideline.pdf|archive-url=https://web.archive.org/web/20081203104004/http://www.nice.org.uk/nicemedia/pdf/CG030fullguideline.pdf |archive-date=2008-12-03 }}</ref>

An interesting aside to the Fraser guidelines is that many{{weasel inline|date=August 2021}} 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|date=August 2021}} as for example cited in the RCOG circular.<ref name=rcog/>

==See also==
{{div col|colwidth=30em}}
* [[Age of consent]]
* [[Dignity of risk]]
* [[Informed consent]]
* [[Mature minor doctrine]]
* [[Mental capacity in England and Wales]]

{{div col end}}

==References==
{{reflist}}

==External links==
* [http://www.bailii.org/uk/cases/UKHL/1985/7.html West Norfolk and Wisbech Area Health Authority and the Department of Health and Social Security (Appellants)] [1986] AC 112, [1986] 1 FLR 229, [1985] UKHL 7.

{{Medical ethics cases}}

{{DEFAULTSORT:Gillick Competence}}
[[Category:Children's rights in England]]
[[Category:Medical ethics]]
[[Category:Health law in the United Kingdom]]
[[Category:English family case law]]
[[Category:1985 in British law]]
[[Category:1985 in England]]
[[Category:House of Lords cases]]
[[Category:Children's rights|Gillick]]
[[Category:Medical law]]