Tag: Gillick Competence

What is the Mature Minor Doctrine?

Published on by Andrew Marshall2 Comments

Introduction

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 agreement of parents, and should be permitted to do so.

It is now generally considered a form of patients rights; formerly, the mature minor rule was largely seen as protecting health care providers from criminal and civil claims by parents of minors at least 15.

Jurisdictions may codify an age of medical consent, accept the judgment of licensed providers regarding an individual minor, or accept a formal court decision following a request that a patient be designated a mature minor, or may rely on some combination. For example, patients at least 16 may be assumed to be mature minors for this purpose, patients aged 13 to 15 may be designated so by licensed providers, and pre-teen patients may be so-designated after evaluation by an agency or court. The mature minor doctrine is sometimes connected with enforcing confidentiality of minor patients from their parents.

Refer to Gillick Competence, Marion’s Case, Informed Consent, and Informed Refusal.

Statute

In the United States, a typical statute lists: “Who may consent [or withhold consent for] surgical or medical treatment or procedures.”

“…Any unemancipated minor of sufficient intelligence to understand and appreciate the consequences of the proposed surgical or medical treatment or procedures, for himself.”

Medical Emancipation

By definition, a “mature minor” has been found to have the capacity for decisional autonomy, or the right to make decisions including whether to undergo risky medical but potentially life-saving medical decisions alone, without parental approval. By contrast, “medical emancipation” formally releases children from some parental involvement requirements but does not necessarily grant that decision making to children themselves. Pursuant to statute, several jurisdictions grant medical emancipation to a minor who has become pregnant or requires sexual-health services, thereby permitting medical treatment without parental consent and, often, confidentiality from parents. A limited guardianship may be appointed to make medical decisions for the medically emancipated minor and the minor may not be permitted to refuse or even choose treatment.

Brief History

One significant early US case, Smith v. Seibly, 72 Wn.2d 16, 431 P.2d 719 (1967), before the Washington Supreme Court, establishes precedent on the mature minor doctrine. The plaintiff, Albert G. Smith, an 18-year-old married father, was suffering from myasthenia gravis, a progressive disease. Because of this, Smith expressed concern that his wife might become burdened in caring for him, for their existing child and possibly for additional children. On 09 March 1961, while still 18, Smith requested a vasectomy. His doctor required written consent, which Smith provided, and the surgery was performed. Later, after reaching Washington’s statutory age of majority, then 21, the doctor was sued by Smith, who now claimed that he had been a minor and thus unable to grant surgical or medical consent. The Court rejected Smith’s argument: “Thus, age, intelligence, maturity, training, experience, economic independence or lack thereof, general conduct as an adult and freedom from the control of parents are all factors to be considered in such a case [involving consent to surgery].”

The court further quoted another recently decided case, Grannum v. Berard, 70 Wn.2d 304, 307, 422 P.2d 812 (1967): “The mental capacity necessary to consent to a surgical operation is a question of fact to be determined from the circumstances of each individual case.” The court explicitly stated that a minor may grant surgical consent even without formal emancipation.

Especially since the 1970s, older paediatric patients sought to make autonomous decisions regarding their own treatment, and sometimes sued successfully to do so. The decades of accumulated evidence tended to demonstrate that children are capable of participating in medical decision-making in a meaningful way; and legal and medical communities have demonstrated an increasing willingness to formally affirm decisions made by young people, even regarding life and death.

Religious beliefs have repeatedly influenced a patient’s decision to choose treatment or not. In a case in 1989 in Illinois, a 17-year-old female Jehovah’s Witness was permitted to refuse necessary life saving treatments.

In 1990, the United States Congress passed the Patient Self-Determination Act; even though key provisions apply only to patients over age 18, the legislation advanced patient involvement in decision-making. The West Virginia Supreme Court, in Belcher v. Charleston Area Medical Centre (1992) defined a “mature minor” exception to parental consent, according consideration to seven factors to be weighed regarding such a minor: age, ability, experience, education, exhibited judgment, conduct, and appreciation of relevant risks and consequences.

The 2000s and 2010s experienced a number of outbreaks of vaccine-preventable diseases, such as the 2019-2020 measles outbreaks, which were fuelled in part by vaccine hesitancy. This prompted minors to seek vaccinations over objections from their parents. Beginning in the 2020s during the COVID-19 pandemic, minors also began seeking out the COVID-19 vaccine over the objections of their vaccine-hesitant parents.

Laws by Jurisdiction

Canada

The Supreme Court of Canada recognised mature minor doctrine in 2009; in provinces and territories lacking relevant statutes, common law is presumed to be applied.

Province/TerritoryMinimum AgeOutline
AlbertaNoneThe Child, Youth and Family Enhancement Act does not establish a minimum age. In practice, children at 16 are generally considered capable of consent to medical procedures; in some cases, the doctrine has been applied to children as young as 14.
British ColumbiaNoneThe Infants Act does not set an age at which a child becomes capable of consent to medical procedures, but the child must be capable of understanding the procedure and its risks in order to consent.
ManitobaNoneIt is presumed minors 16 and older can provide consent; minors 15 and younger and presumed to be incapable of consent but this can be rebutted.
New BrunswickNoneUnder the Medical Consent of Minors Act, minors 16 and older can consent to medical procedures. Minors under 16 can consent to treatment if they can demonstrate an understanding of the procedure and its consequences.
Newfoundland and LabradorNoneThe Advanced Health Care Directives Act presumes minors 16 and older are capable of consent to treatment.
Northwest TerritoriesNoneNo statute exists in Northwest Territories dictating an age of consent; absent a statute, common law applies.
Nova ScotiaNoneMedical procedures can be performed on any person capable of providing informed consent.
NunavetNoneNo statute exists in Nunavut dictating an age of consent.
OntarioNoneThe Health Care Consent Act allows all persons capable of informed consent to agree to treatment. The Substitute Decisions Act presumes all persons 16 or older can give or withhold consent to care.
Prince Edward IslandNoneMedical procedures can be performed on any person capable of providing informed consent.
Quebec14Minors 14 and older may consent to medical care but still require parental consent for optional procedures that involve significant risks, e.g. cosmetic surgery.
SaskatchewanNoneMedical procedures can be performed on any person capable of providing informed consent.
YukonNoneMedical procedures can be performed on any person capable of providing informed consent.

United States

Several states permit minors to legally consent to medical treatment without parental consent or over parental objections. In addition, many other states allow minors to consent to medical procedures under a more limited set of circumstances. These include providing limited minor autonomy only in enumerated cases, such as blood donation, substance abuse, sexual and reproductive health (including abortion and sexually transmitted infections), or for emergency medical services. Many states also exempt specific groups of minors from parental consent, such as homeless youth, emancipated minors, minor parents, or married minors. Further complicating matters is the interaction between state tort law, state contract law, and federal law, depending on if the clinic accepts federal funding under Title X or Medicaid.

StateMinimum AgeOutline
Alabama14Minors 14 years or older or who have graduated high school can consent to medical procedures. No evaluation of maturity required. Parental consent is required for abortion but can be bypassed.
AlaskaNoneNo evaluation of maturity required. Parental consent is not required for abortion, as this violates the Constitution of Alaska’s clause protecting privacy.
ArkansasNoneAny minors capable of informed consent.
California12CA Family Code 6926 permits minors to consent to immunization against sexually transmitted infections.
DelawareNone“Reasonable efforts” must have first been made to secure parental consent. Minors can consent to vaccinations for sexually transmitted infections.
IdahoNoneAny minors capable of informed consent.
IllinoisNoneAny minors capable of informed consent, but informed refusal of medical treatment can be overruled.
Kansas16Minors aged 16 are permitted de jure to consent to medical treatment when no parent is available. Mature minors are permitted to consent to medical treatment, but maturity must be assessed on a case-by-case basis.
LouisianaNoneMinors are allowed to consent to any medical procedure they deem necessary.
MaineNoneA mature minor’s wishes expressed in a living will must be considered.
MassachusettsNoneMature minors meeting are permitted to consent to medical treatment, but only if their “best interests … will be served by not notifying his or her parents of intended medical treatment.”
MinnesotaNoneMinnesota Statutes §144.3441 permits minors to consent to immunisation against Hepatitis B.
MontanaNoneAny minors who have completed high school are able to consent to medical treatment.
NevadaNoneMature minors meeting are permitted to consent to medical treatment, but only if the healthcare worker believes the minor would risk a “serious health hazard” absent treatment.
New YorkNoneNY Public Health Law §2305 permits minors to consent to treatment for and immunization against sexually transmitted infections.
Oregan15Minors aged 15 and up have the authority to consent to (but not necessarily refuse) medical treatment.
Pennsylvania18Minors aged 18 or who have completed high school can consent to medical treatment.
South Carolina16Minors aged 16 and up can consent to any medical treatment other than “operations”.
Tennessee7Any mature minors capable of informed consent can consent to medical procedures. The courts make the rebuttable presumption that minors aged 7 to 13 are not mature, while minors 14 and up are.
WashingtonNoneMature minors may consent to medical procedures, including immunisations.
Washington D.C.12Minors 12 and older may consent to immunisation with CDC-approved vaccines, even over parental objections. The law compels healthcare providers to seek payment directly from insurance companies without notifying parents.
West VirginiaNoneAny minors capable of informed consent can consent to medical procedures.

United States

In the United States, bodily integrity has long been considered a common law right; the United States Supreme Court, in 1891’s Union Pacific Railway Company v. Botsford, found, “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” The Supreme Court in 1990 (Cruzan v. Director, Missouri Department of Health) allowed that “constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred” in the Due Process Clause of the Fourteenth Amendment to the United States Constitution, but the Court refrained from explicitly establishing what would have been a newly enumerated right. Nevertheless, lower courts have increasingly held that competent patients have the right to refuse any treatment for themselves.

In 1989, the Supreme Court of Illinois interpreted the Supreme Court of the United States to have already adopted major aspects of mature minor doctrine, concluding:

Although the United States Supreme Court has not broadened this constitutional right of minors beyond abortion cases, the [Illinois] appellate court found such an extension “inevitable.” …Nevertheless, the Supreme Court has not held that a constitutionally based right to refuse medical treatment exists, either for adults or minors. …[U.S. Supreme Court] cases do show, however, that no “bright line” age restriction of 18 is tenable in restricting the rights of mature minors, [thus] mature minors may possess and exercise rights regarding medical care… If the evidence is clear and convincing that the minor is mature enough to appreciate the consequences of her actions, and that the minor is mature enough to exercise the judgment of an adult, then the mature minor doctrine affords her the common law right to consent to or refuse medical treatment [including life and death cases, with some considerations].

An ongoing case of Z.M is being heard in Maryland regarding the minor’s right to refuse chemotherapy.

In Connecticut, Cassandra C. a seventeen-year-old, was ordered by the Connecticut Supreme Court to receive treatment. The court decided that Cassandra was not mature enough to make medical decisions.

Canada

In 2009, the Supreme Court of Canada ruling in A.C. v. Manitoba [2009] SCC 30 (CanLII) found that children may make life and death decisions about their medical treatment. In the majority opinion, Justice Rosalie Abella wrote:

“The result of this [decision] is that young people under 16 will have the right to demonstrate mature medical decisional capacity. …If, after a careful analysis of the young person’s ability to exercise mature and independent judgment, the court is persuaded that the necessary level of maturity exists, the young person’s views ought to be respected.”

A “dissenting” opinion by Justice Ian Binnie would have gone further:

“At common law, proof of capacity entitles the ‘mature minor’ to exercise personal autonomy in making medical treatment decisions free of parental or judicial control. …[A] young person with capacity is entitled to make the treatment decision, not just to have ‘input’ into a judge’s consideration of what the judge believes to be the young person’s best interests.”

Analysts note that the Canadian decision merely requires that younger patients be permitted a hearing, and still allows a judge to “decide whether or not to order a medical procedure on an unwilling minor”.

What is Marion’s Case (1982)?

Published on by Andrew Marshall1 Comment

Introduction

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 themselves, and when this is not possible, who may make decisions for them regarding major medical procedures.

It largely adopts the views in Gillick v West Norfolk Area Health Authority, a decision of the House of Lords in England and Wales.

Refer to Mature Minor Doctrine, Informed Consent, and Informed Refusal.

Background

“Marion”, a pseudonym for the 14-year-old girl at the centre of this case, suffered from intellectual disabilities, severe deafness, epilepsy and other disorders. Her parents, a married couple from the Northern Territory sought an order from the Family Court of Australia authorising them to have Marion undergo a hysterectomy and an oophrectomy (removal of ovaries). The practical effect would be sterilisation and preventing Marion from being able to have children and many of the hormonal effects of adulthood.

Under the Family Law Act the primary concern for matters involving children is that the court must act in the child’s best interests. The majority of the High Court made it clear that it was merely deciding a point of law and that the decision about what was in the child’s “best interests” would be left to the Family Court of Australia after the case.

The main legal debate that arose was who has the legal authority to authorise the operation. Three options existed: the parents (as legal guardians of their daughter), Marion or an order of a competent court, such as the Family Court of Australia. The Full Court of the Family Court was asked to decide:

  1. Could the parents, as joint guardians authorise the sterilisation procedure;
  2. If not, does the Family Court have jurisdiction to:
    (a) authorise the carrying out of such a procedure;
    (b) enlarge the powers, rights or duties of the parents to enable them to authorise such a procedure; or
    (c) approve the consent of the Applicants, as to the proposed procedure.

The majority of the Family Court, Strauss and McCall JJ held that the parents, as joint guardians could authorise the sterilisation procedure. Nicholson CJ held that the Family Court had jurisdiction to authorise the procedure.

The department, together with the Attorney-General for Australia, argued that only a court could authorise such a major operation and that the Family Court jurisdiction included any matter relating to the welfare of a child even if it was not a dispute about custody, guardianship or access.

The parents, however, “argued that the decision to sterilise a child is not significantly different from other major decisions that parents and guardians have to make for children and that the involvement of the Family Court is optional and only of a ‘supervisory nature’. Their argument was that, provided such a procedure is in the best interests of the child, parents as guardians can give lawful consent to a sterilisation on behalf of a mentally incompetent child.”

Judgement

The High Court recognised the right of everyone to bodily integrity under national and international law, and made a distinction between therapeutic and non-therapeutic surgical procedures as well as the duty of surrogates to act in the best interests of the incompetent patient.

In the case, the High Court ruled that while parents may consent to medical treatment for their children, the authority does not extend to treatment not in the child’s best interests. Also, the Court held that if medical treatment has sterilisation as its principal objective, parents do not have the authority to consent on behalf of their child.

Obiter Dictum

The statement by Deane J that parents may grant surrogate consent for the non-therapeutic circumcision of male children is obiter dictum and not part of the judgment. Male circumcision was not at issue in the case and no evidence or testimony was offered regarding male circumcision.

What is the Age of Legal Capacity (Scotland) Act 1991?

Published on by Andrew Marshall1 Comment

Introduction

The Age of Legal Capacity (Scotland) Act 1991 (c.50) is an Act of the Parliament of the United Kingdom applicable only in Scotland which replaced the pre-existing rule of pupillage and minority with a simpler rule that a person has full legal capacity at the age of 16.

Refer to Gillick Competence.

Background

Under the previous Scots law (derived from Roman law), a child to the age of 12 if female, or 14 if male, had legal status of “pupil” and was under legal control of an adult (usually parent or parents) deemed “tutor”. From that age until the age of majority the child had legal status of a “minor”, and might have a responsible adult deemed “curator” or have no responsible adult (being referred to as “fors familiated”). The Scottish age of majority was originally 21 until reduced to 18 by the Age of Majority (Scotland) Act 1969. Pupils lacked any capacity to enter into legal contracts. Minors had capacity to enter into contracts, which included the capacity to make a will, but subject to rights to have these reduced by a court in certain circumstances, and sometimes requiring their curators consent. The rules as to when contracts did or did not require consent, and which were potentially reducible by court were complex. The age to enter into marriage was originally the age of minority, but this was raised to 16 years by the Age of Marriage Act 1929, and confirmed in the Marriage (Scotland) Act 1977.

Under the Age Legal Capacity Scotland Act 1991 the old rules and terms were replaced. The basic rule under the replacement regime is that under 16s have no legal capacity. This is qualified by section 2 which provides that under 16s can:

  1. Enter into a contract of a kind commonly entered into by persons of their age group, and on terms which are not unreasonable; and
  2. From age 12, make a Will, and are deemed to have capacity to instruct a lawyer to act on their behalf.
  3. The right to consent to an adoption was also subsequently inserted into this section by the Children (Scotland) Act 1995.

In all other cases the legal Guardian of the under 16 has legal right to deal with all contractual and consent matters on the child’s behalf.

From age 16 a person has full legal capacity to enter into any form of agreement. This subject to protection for younger persons by means of a right (under section 3) while under the age of 21, to have a contract made between the ages of 16 and 18 set aside as a “prejudicial transaction”. The test is whether a reasonably prudent adult would not have entered into such a contract, and the person has been prejudiced by entering into that contract. Under section 4 a contract may be approved in advance by a court, in which case it cannot later be reduced. Contracts entered into in the course of the young person’s business, or where they misrepresented their age also cannot be reduced.

There is also specific provision for persons having their birthday on 29 February; under section 6 they are treated as having their birthday on 01 March in every non-leap year for purposes of calculating their age.

What is Gillick Competence?

Published on by Andrew Marshall5 Comments

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.