What is Gillick Competence?

Introduction

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.

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 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. 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 advising doctors on the contraception of minors (for this purpose, under 16s). 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, 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.

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 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. The result of Gillick is that in England today, except in situations that are regulated otherwise by law, 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 his or her 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 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 courts 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 using standby salbutamol 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 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.

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. 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 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 [their] own consent” to be vaccinated against COVID-19, despite the JCVI “fail[ing] to 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 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 (1992) 175 CLR 189. The Gillick competence doctrine is part of Australian case law (see, e.g., DoCS v Y [1999] 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 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 [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 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; and
  • 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 (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[weasel words] 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.