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Decision making in children and young people: Gillick competent?
Academic GPST2 and LLM student
E-mail: bhayhoe{at}gmail.com
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Abstract |
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TOP
Abstract
The GP curriculum and...Valid consent to treatment is vitally important in medical practice both in the protection of patients and, for those providing treatment, as a defence against criminal charges of assault or battery or civil claims of trespass against the person.
Care of children and young people (Curriculum statement 8): Develop and apply the primary care consultation to bring about effective doctor, patient and family relationships to enable parents or carers, children and young people to participate in their own care planning and delivery and be routinely involved and supported in making decisions and choices about their care, taking into account their age and development, increasing autonomy with age and the need for confidentiality balanced with the parent's need for information. Describe the issues involved in delivering services to young people relating to access, communication, confidentiality and consent outlined in the RCGP publication Getting it right for teenagers in your practice. Provide access for young people to confidential contraceptive and sexual health services that are tailored to meet their needs, as set out in Best practice guidance on the provision of effective contraceptive and advice services for young people. Sexual health (Curriculum statement 11): Be aware of the legal aspects relating to sexual health including termination of pregnancy and the methods used in the UK. Be aware of the legal aspects of providing contraception and sexual health in under 16s (including child protection).
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In order for consent to be valid, the person giving it must be competent to make a decision on that particular matter. Adults, those over 18, are assumed to be competent unless there is evidence to the contrary, in which case their mental capacity should be assessed in the usual way (Box 1). Very young children would not normally be competent and so decisions must be made on their behalf by those with parental responsibility. However, between these two groups, things become more complicated, sometimes producing cases of great human sensitivity and legal complexity.
Section 2 People who lack capacity For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. Section 3 Inability to make decisions For the purposes of section 2, a person is unable to make a decision for himself if he is unable: to understand the information relevant to the decision, to retain that information, to use or weigh that information as part of the process of making the decision or to communicate his decision (whether by talking, using sign language or any other means).
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The Family Law Reform Act 1969 |
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Before 1969, the common law had never determined whether or not a child could give valid consent. Consequently, it seemed to be up to doctors to decide in each case and was generally assumed that doctors could treat a child without the need for parental consent if the child seemed to be grown up and sensible enough to make the decision.
The Family Law Reform Act 1969 changed two things. Firstly, it reduced the age of majority from 21 to 18. Secondly, in S8 of the Act, it empowered 16 and 17 year olds to consent to their own medical treatment as if they were adults (Box 2).
| Box 2. Family Law Reform Act 1969 Section 8 Consent by persons over 16 to surgical, medical and dental treatment The consent of a minor who has attained the age of 16 to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; where a minor has by virtue of this section given an effective consent to any treatment, it shall not be necessary to obtain any consent for it from his parent or guardian. Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.
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The effect of this was that doctors no longer had to consider whether a 16-year-old patient seemed grown up enough to make a decision—he could assume that the patient was competent to decide in the same way as an adult. S8(3) preserved the existing situation for under 16s, that is, if they seemed intelligent and mature enough to make a decision their consent would be sufficient without the need for parental consent.
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Competence |
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The law regarding competence of children under the age of 16 was established in the case of Gillick v West Norfolk and Wisbech Area Health Authority ([1985] 3 All ER 402).
In 1974, the Department of Health and Social Security (DHSS) issued a circular to area health authorities containing guidance on giving of contraceptive advice. A small part of this guidance related to giving of such advice to girls under 16. Revised in 1980, the guidance essentially comprised:
- A doctor prescribing contraceptives to a girl under 16 would not act unlawfully as long as he acted in good faith to protect her from harm.
- Doctors should if possible try to involve parents.
- But, there might be exceptional cases where this was not possible or appropriate.
- And, in such cases, it was up to the doctor's clinical judgement whether or not to prescribe contraceptives.
Mrs Victoria Gillick, who had at that time five daughters under the age of 16, was deeply concerned by the implication that her children could be given advice or prescribed contraceptives without her knowledge or consent and she sought assurance from the health authority that this would not occur. The authority replied that in their view, this was a decision for the doctor in each case. As a result, she brought proceedings against both the authority and the DHSS, arguing that the advice was unlawful and amounted to advice to doctors to commit an offence (Sexual Offences Act 1956), and doctors could not give contraception advice or treatment without parental consent because it would be inconsistent with parental rights.
Her case was dismissed in the first instance but successful in the Court of Appeal. The Department consequently appealed to the House of Lords where it was held:
- Parental rights exist only for the benefit of the child and ‘dwindle’ with increasing age of the child (Hewer v Bryant [1970] 1 QB 357). The parents' rights consequently yielded to the child's when she reached sufficient understanding and intelligence to be able to make up her own mind.
- A doctor exercising his clinical judgement in giving contraceptive advice and treatment to a girl under 16 without her parent's consent would not be guilty of an offence.
- Doctors have discretion to give contraceptive advice or treatment to girls under 16 without parents' knowledge or consent, provided the girl has sufficient understanding and intelligence to understand fully what is proposed.
While in answering Mrs Gillick's action the Gillick case clearly addressed the specific problem of contraceptive advice and treatment under 16, the judges also spoke more generally and from this is derived the concept of ‘Gillick competence’ (Box 3).
| Box 3. Gillick competence* Per Lord Fraser of Tullybelton, Provided the patient, whether a boy or a girl, is capable of understanding what is proposed, and of expressing his or her own wishes, I see no reason for holding that he or she lacks the capacity to express them validly and effectively and to authorize the medical man to make the examination or give the treatment which he advises. Per Lord Scarman, I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have a medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give consent valid in law. *Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL).
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They agreed that Section 8, part 3 of the Family Law Reform Act 1969 left open the possibility that consent from a child under 16 could be valid. In addition, they ruled that there was no reason to suppose that advice and treatment for contraception should be regarded differently to any other medical advice or treatment in terms of consent.
While consent of the parents should normally be sought, any medical examination or treatment could be carried out with the consent of the child if ‘capable of understanding what is proposed and of expressing his or her own wishes’.
It is important to note that the child's ability to understand and consent to a treatment will depend substantially on what treatment is proposed. The judges in Gillick made clear that competence in children was ‘situation dependent’ in other words it had to be objectively assessed in each particular case and the fact that a child was competent to consent to one treatment by no means guaranteed competence for another.
GMC guidance on competence
The General Medical Council (GMC) recently issued revised guidance for doctors in dealing with patients under the age of 18. It advises that you should involve children as far as possible in decision making, even if they are not competent to make decisions on their own.
A child is competent to make a decision if he understands ‘the nature, purpose and possible consequences of investigations and treatments you propose, as well as the consequences of not having treatment’.
The guidance stresses that competence is situation dependent: ‘It is important that you assess maturity and understanding on an individual basis and with regard to the complexity and importance of the decision to be made‘.
The GMC also advises that where children lack capacity to consent, parents can consent for them. If two parents disagree, it may be necessary to seek legal advice. If a child is judged to have capacity to consent, he should be encouraged to consult his parents but ‘you should usually abide by any decision they have capacity to make themselves‘.
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Contraception and abortion |
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The specific question posed in Gillick concerned provision of contraceptive advice and treatment to girls under 16. As has been described, the House of Lords ruled that such advice and treatment can lawfully be given to girls under the age of 16 without the consent or knowledge of their parents provided that they have ‘sufficient understanding and intelligence‘. Lord Fraser in particular was careful to give specific guidance on how doctors should decide whether it was lawful to give such advice and treatment (Box 4).
| Box 4. Contraception advice* Per Lord Fraser, But there may well be cases ... where the girl refuses either to tell the parents herself or to permit the doctor to do so and in such cases the doctor will, in my opinion, be justified in proceeding without the parents' consent or even knowledge provided he is satisfied on the following matters:
* Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL).
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| Box 5. Lord Donaldson's conclusions on consent and refusal* No doctor can be required to treat a child, whether by the court in the exercise of its wardship jurisdiction, by the parents, by the child or anyone else. The decision whether to treat is dependent upon an exercise of his own professional judgement, subject only to the threshold requirement that, save in exceptional cases usually of emergency, he has the consent of someone who has authority to give that consent. In forming that judgement, the views and wishes of the child are a factor whose importance increases with the increase in the child's intelligence and understanding. There can be concurrent powers to consent. If more than one body or person has a power to consent, only a failure to, or refusal of, consent by all having that power will create a veto. A ‘Gillick competent’ child or one over the age of 16 will have a power to consent, but this will be concurrent with that of a parent or guardian. Gillick competence is a developmental concept and will not be lost or acquired on a day to day or week to week basis. In the case of mental disability, that disability must also be taken into account, particularly where it is fluctuating in its effect. The court in the exercise of its wardship or statutory jurisdiction has power to override the decisions of a Gillick competent child as much as those of parents or guardians. * Re R (A minor) (wardship: consent to treatment) [1992] Fam. 11.
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| Box 6. Summary of competence by age* Aged 18+ Assumed to be competent, that is have the capacity to consent to or refuse treatment unless evidence to contrary. Capacity assessed as per MCA 2005. Aged 16–17 Assumed to be competent, having the same capacity to consent to treatment as an adult. Although they can withhold consent, refusal can in some circumstances be overridden, in the patient's best interests, either by parents or the court. Aged <16 Gillick competent children can consent to the specific treatment for which they have been judged competent. If they refuse treatment, this can be overridden by parents or the court. Children who are not Gillick competent cannot give or withhold consent. Decisions are made by the parents on their behalf. Good practice would nevertheless normally involve gaining the assent of the child. * Medical Protection Society. Consent—children and young people. (London: MPS, 2008)
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The case also related to the question of abortion in girls under 16. Re P ([1986] 1 FLR 272) concerned a 15-year-old girl under local authority care who, already having one child, became pregnant again. She wanted an abortion but her father opposed this. The local authority applied to the court for a decision. Mrs Justice Butler-Sloss directed that the abortion takes place despite the parent's objection, a decision approved by the House of Lords in Gillick. It can therefore be concluded that if a girl is mature enough to understand what an abortion means physically and emotionally, it can be carried out with her consent alone. If she is not competent to decide, doctors should act in her best interests—where the parents refuse consent, they could go to court for a decision.
GMC guidance on contraception
The GMC 0–18 guidance contains a section on contraception, abortion and sexually transmitted infections in young people under 16. It refers to Department of Health guidance and lists Lord Fraser's five requirements (Box 4) as essential for provision of such advice or treatment. It also stresses the importance of confidentiality, even where it is decided that the child is not competent, except in certain exceptional circumstances (if it is in the public interest, in the best interests of the child or is required by law).
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Refusal of treatment |
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Clearly, there will be occasions where a child or young person wishes to refuse a treatment or intervention offered by doctors. If the child is under 16 and not competent the parents can consent to treatment on his behalf despite the child's refusal, although it is advisable if possible to try to persuade the child to agree. Refusal by a competent child however is much more difficult.
It had reasonably been assumed that Gillick provided the competent child under 16 with the right to refuse treatment as well as accept it. However, this view was firmly rejected by subsequent judgements of the Court of Appeal which allow parental consent to override the refusal not only of competent children under 16 but of 16 and 17 year olds as well.
In Re R ([1992] Fam. 11), a 15-year-old girl with psychiatric problems was under the care of the local authority. Her condition fluctuated but in lucid intervals she refused treatment with certain antipsychotic medication. The local authority, unhappy to consent to treatment that she had refused, sought a court ruling. The Court of Appeal ruled that she was not Gillick competent because her fluctuating condition rendered her unable to fully understand the proposed treatment and that the local authority, having parental responsibility, could have consented on her behalf.
However, the court went on to say that even if she had been Gillick competent, she would still have no power to veto treatment. In situations where parents agreed to treatment but a Gillick competent child refused, although taking into account the views of the child, the doctor could act on the basis of the parents' consent alone (For conclusions drawn by one of the judges in this case see Box 5).
Another case addressed refusal of treatment by 16 and 17 year olds. Re W ([1992] All ER 627) concerned a 16-year-old girl under local authority care who was critically ill with anorexia nervosa. The local authority sought court guidance on whether it could transfer her to another hospital and force feed her if necessary. As she was over 16, she was empowered by the Family Law Reform Act 1969 to consent to medical treatment and it would be reasonable to assume that this meant her refusal of treatment should be respected. However, the Court of Appeal ruled that S8(3) preserved the power of parents to consent on a child's behalf as well as the court's ability to act in the child's welfare. The Act allowed 16 and 17 year olds to consent to but not to refuse treatment.
This was explained using the analogy of a ‘flack jacket’. Consent was like a flack jacket for the doctor against litigation. This could be provided by the parents or by a competent child, but the doctor only needed one and with that he could legally proceed with treatment.
A further point is illustrated by Re E ([1993] 1 FLR 386). Here, a 15-year-old boy with leukaemia was advised that he needed a blood transfusion. He refused because he was a Jehovah's Witness, and his parents likewise withheld their consent. The court ruled that, although he was clearly intelligent and capable of making some decisions about his well-being, he did not have sufficient insight into the consequences of refusal of treatment and was therefore not competent for this decision. In any case, consent from one competent source was all that was needed and this the court could provide. He had transfusions and temporary remission but sadly at the age of 18; his condition deteriorated and, refusing further transfusions, he died.
A number of similar cases have been reported; in fact, there has never been a case in England and Wales where a child Jehovah's Witness, or parents on his behalf, has been allowed by the court to refuse a blood transfusion.
Of course, there will be situations where the parents themselves are not in agreement, and where they are separated, divorced or not married. The same rules would apply in that the valid consent of one would be sufficient, although it is likely that legal advice should be sought in such cases. It is also important to establish who has parental responsibility—mothers almost always do but unmarried fathers often do not.
GMC guidance on refusal of treatment
Clearly, this area is complex and controversial. The GMC guidance holds that respect for young people's views about their treatment is ‘important‘ and so refusals present, ‘a challenge that you need to consider carefully‘. It points out that, ‘Parents cannot override the competent consent of a young person‘, but, ‘the law on parents overriding young people's competent refusal is complex‘.
The guidance suggests that in situations where a competent young person refuses treatment that you think is in their best interests, you should seek legal advice. Very importantly, it stresses the harm that might be done in terms of the rights of children and young people if their refusal is overridden and notes that this must be weighed against the benefits of treatment.
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Confidentiality |
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Although Gillick did not address the question of confidentiality in detail, it was clearly implied that a Gillick competent child could expect to have his or her confidence respected. The Department of Health guidance on contraception and abortion stressed the importance of a duty of confidentiality to children and young people that was equal to that for adults.
This duty of confidentiality was challenged in R (Axon) v Secretary of State for Health ([2006] EWHC 37 (Admin)), which described a very similar situation to that in Gillick. Ms Axon was a mother of five, with two daughters under 16. Having herself had an abortion which she regretted, she wanted to make sure that she was involved in any similar decision making regarding her daughters. She therefore claimed that the Department of Health guidance conflicted with her rights and duties as a parent. She argued that the default position on confidentiality in children should be to inform the parents, regardless of the child's consent competent or otherwise, and that it should only be in exceptional circumstances where the doctor felt it was in the child's best interests that information could be withheld.
Mr Justice Silber rejected her arguments and strongly defended the view that competent children were owed the same duty of confidentiality as adults, rejecting any duty to inform parents. He felt that Gillick did offer support for children's confidentiality and noted in addition the importance of requirements of the United Nations Convention on the Rights of the Child 1989 and evidence that a general rule of disclosure of information might discourage children from seeking medical advice.
GMC guidance on confidentiality
Both the BMA and GMC stress that the same duty of confidentiality applies to children under 16 as any other person. Whether or not the child is Gillick competent, consent should still be sought to disclose information. The GMC describes three general situations that might justify disclosure without consent: where there is an overriding public interest, when it is in the patient's best interest, or where it is required by law. If a competent child refuses consent, this should be respected, but doctors can still disclose information to parents or other health professionals ‘to protect the child or someone else from death or serious harm‘. If a child without capacity refuses consent to disclose information, the doctor should try to persuade him but if necessary in the best interests of the child may share information with parents and other professionals.
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‘Gillick’ or ‘Fraser’ competence? |
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An important point regarding the term Gillick competence has recently been raised (Wheeler 2006). As a result of a mistaken belief that Mrs Gillick objected to the use of her name in this way, the term ‘Fraser competence’ has frequently been used in place of ‘Gillick’. Since Lord Fraser in the Gillick case did provide specific criteria related to contraceptive advice and treatment, commonly known as the ‘Fraser guidelines’, this has caused significant confusion. Robert Wheeler confirmed by correspondence with Mrs Gillick that she had no objection to her association with the term Gillick competent and clarified the correct use of these terms. Gillick competence, as described above, is an objective test which refers to the capacity of a child under the age of 16, who has sufficient maturity and intelligence to understand what is proposed, to consent to any medical examination and treatment. The Fraser guidelines are the five questions (Box 4) to which a doctor must turn his mind when deciding whether he can offer contraceptive advice and treatment to a girl under 16 without her parent's knowledge or consent. The term Fraser competence should not be used.
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Conclusion |
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While the case of Gillick provided welcome clarification of the law regarding competence to consent to treatment of children under 16, and specifically in the area of contraception, the subsequent case law, especially with respect to the problem of refusal of treatment, has proved complex. It has even been suggested (Brazier 2003) that, ‘the courts have distorted common sense and ethics in attempts to avoid the implications of Gillick‘.
Certainly, despite Gillick seeming to champion adolescent autonomy, the courts have proved extremely reluctant to allow children and young people, competent or not, to make decisions that might result in harm to them.
The basic principles of Gillick for doctors however remain straightforward and the GMC guidance in this area is clear and up to date. The likely sensitivity of the cases involved is reflected in the GMC recommended low threshold for seeking multidisciplinary and legal advice (for summary of MPS guidance See Box 6). It is accepted therefore that in practice the rules may sometimes be difficult to apply so GP trainees should, like all doctors, have in mind the guidelines when dealing with children and young people but be quick to seek the help of experienced colleagues and the multidisciplinary team.
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The situation in Scotland |
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It is important to note that the legal situation as described in this article applies to England and Wales. Although Gillick also applies in Scotland, the law in Scotland goes further with the Age of Legal Capacity (Scotland) Act 1991. This allows certain rights to children over the age of 12 in addition to the understanding that in certain circumstances children under 16 are competent to make decisions regarding medical treatment.
| Key points Gillick Competence:
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References |
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Brazier M. Medicine patients and the law (2003) 3rd ed. London: Penguin. ISBN 0-140-25002-6.
British Medical Association. Confidentiality and people under 16 (1994) London: BMA. Accessed via www.bma.org.uk/ap.nsf./content/confidentalityunder16.
Department of Health. Best practice guidance for doctors and other health professionals on the provision of advice and treatment to young people under 16 on contraception, sexual and reproductive health (2004) London: HMSO. Accessed via www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyandGuidance/DH-H086960.
General Medical Council. 0-18 years: guidance for all doctors (2007) London: GMC.
Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL).
Jackson E. Medical Law: text cases and materials (2006) Oxford: Oxford University Press ISBN 0-19-926127-x.
Mccafferty C. Won’t consent? Can’t consent! Refusal of medical treatment. Family Law (1999) 29:335.
RCGP. Curriculum statement 8: Care of children and young people. Accessed via www.rcgp-curriculum.org.uk/PDF/curr_8_Care_of_Children_and_Young_People.pdf [date last accessed 10.07.2008].
RCGP. Curriculum statement 11: Sexual health. Accessed viawww.rcgp-curriculum.org.uk/PDF/curr_11_Sexual_Health.pdf[date last accessed 10.07.2008].
Sterrick M. Competence in children has a Scottish twist. British Medical Journal (2006) 332:975.
Taylor R. Reversing the retreat from Gillick? R (Axon) v Secretary of State for Health. Child and Family Law Quarterly (2007) 19(1):81.
The Law Society. Social Security Law—Some legal principles in ‘Gillick’: A guide—part 1. Law Society Guardian Gazette (1987) 84(1245).
Wheeler R. ‘Gillick or Fraser? A plea for consistency over competence in children’. British Medical Journal (2006) 332:807.
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