Recently a mother telephoned for the blood results of her 16 nearly 17 year old daughter. She was somewhat surprised when the receptionist responded by telling her that her daughter would have to contact the surgery herself.
Consent from children and young people
People aged 16 or over are entitled to consent to their own treatment, and this can only be overruled in exceptional circumstances.
Like adults, young people (aged 16 or 17) are presumed to have sufficient capacity to decide on their own medical treatment, unless there is significant evidence to suggest otherwise.
Children under the age of 16 are presumed to lack capacity, but can consent to their own treatment if it is thought that they have enough intelligence, competence and understanding to fully appreciate what is involved in their treatment. This is termed “Gillick competence” and now with our new computer system when any child of 11 – 16 yrs of age who attends surgery a reminder appears to suggest that we should assess if the child has “Gillick competence”.
Otherwise, someone with “parental responsibility” can consent for them.
What do “Gillick competence” and “Fraser guidelines” refer to?
The Gillick competency and Fraser guidelines help us all to balance children’s rights and wishes with our responsibility to keep children safe from harm.
What do ‘Gillick competency’ and ‘Fraser guidelines’ refer to?
Gillick competency and Fraser guidelines refer to a legal case which looked specifically at whether doctors should be able to give contraceptive advice or treatment to under 16-year-olds without parental consent. But since then, they have been more widely used to help assess whether a child has the maturity to make their own decisions and to understand the implications of those decisions.
In 1982 Mrs Victoria Gillick took her local health authority (West Norfolk and Wisbech Area Health Authority) and the Department of Health and Social Security to court in an attempt to stop doctors from giving contraceptive advice or treatment to under 16-year-olds without parental consent.
The case went to the High Court in 1984 where Mr Justice Woolf dismissed Mrs Gillick’s claims. The Court of Appeal reversed this decision, but in 1985 it went to the House of Lords and the Law Lords (Lord Scarman, Lord Fraser and Lord Bridge) ruled in favour of the original judgement delivered by Mr Justice Woolf:
“…whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent.” (Gillick v West Norfolk, 1984)
How are the Fraser Guidelines applied?
The Fraser guidelines refer to the guidelines set out by Lord Fraser in his judgement of the Gillick case in the House of Lords (1985), which apply specifically to contraceptive advice. Lord Fraser stated that a doctor could proceed to give advice and treatment:
“provided he is satisfied in the following criteria:
* that the girl (although under the age of 16 years of age) will understand his advice;
* that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice;
* that she is very likely to continue having sexual intercourse with or without contraceptive treatment;
*that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;
* that her best interests require him to give her contraceptive advice, treatment or both without the parental consent.” (Gillick v West Norfolk, 1985)
How is Gillick competency assessed?
Lord Scarman’s comments in his judgement of the Gillick case in the House of Lords (Gillick v West Norfolk, 1985) are often referred to as the test of “Gillick competency”:
“…it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.”
He also commented more generally on parents’ versus children’s rights:
“parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”
When their consent can be overruled
If a young person refuses treatment, and by doing so this may lead to their death or a severe permanent injury, their decision can be overruled by the Court of Protection. This is the legal body that oversees the operation of the Mental Capacity Act (2005).
The parents of a young person who has refused treatment may consent for them, but it is usually thought best to go through the courts in such situations.
If a child who is under 16 does not have the capacity to consent, someone with parental responsibility can consent for them, but that person must have the capacity to give consent.
If a parent refuses to give consent to a particular treatment, this decision can be overruled by the courts if treatment is thought to be in the best interests of the child.
If one person with parental responsibility gives consent and another does not, the healthcare professionals can choose to accept the consent and perform the treatment in most cases. If the people with parental responsibility disagree about what is in the child’s best interests, the courts can make a decision.
In an emergency, where treatment is vital, and waiting to obtain parental consent would place the child at risk, treatment can proceed without consent (see when consent isn’t needed for more information)
Who has parental responsibility?
A person with parental responsibility for a child could be:
* the child’s mother or father
* the child’s legally appointed guardian
* a person with a residence order concerning the child
* a local authority designated
to care for the child
* a local authority or person with an emergency protection order for the child
NB Please check in the surgery as we have a more refined list
for further information:-
official government documentation can be obtained on the following website but I have copied a relevant extract from this below:-
1. The legal position concerning consent and refusal of treatment by those under the age of 18 is different from the position for adults. For the purposes of this guidance ‘children’ refers to people aged below 16 and ‘young people’ refers to people aged 16–17. Young people aged 16–17
2. By virtue of section 8 of the Family Law Reform Act 1969,47 people aged 16 or 17 are presumed to be capable of consenting to their own medical treatment, and any ancillary procedures involved in that treatment, such as an anaesthetic. As for adults, consent will be valid only if it is given voluntarily by an appropriately informed young person capable of consenting to the particular intervention. However, unlike adults, the refusal of a competent person aged 16–17 may in certain circumstances be overridden by either a person with parental responsibility or a court (see paragraphs 14–18 below).
3. Section 8 of the Family Law Reform Act 1969 applies only to the young person’s own treatment. It does not apply to an intervention that is not potentially of direct health benefit to the young person, such as blood donation or non-therapeutic research on the causes of a disorder. However, a young person may be able to consent to such an intervention under the standard of Gillick competence, considered below (see paragraph 6 et seq.).
4. In order to establish whether a young person aged 16 or 17 has the requisite capacity to consent to the proposed intervention, the same criteria as for adults should be used (see chapter 1, paragraph 2). If a young person lacks capacity to consent because of an impairment of, or a disturbance in the functioning of, the mind or brain then the Mental Capacity Act 2005 will apply in the same way as it does to those who are 18 and over (see chapter 2). If however they are unable to make the decision for some other reason, for example because they are overwhelmed by the implications of the decision, then the Act will not apply to them and the legality of any treatment should be assessed under common law principles. It may be unclear whether a young person lacks capacity within the meaning of the Act. In those circumstances, it would be prudent to seek a declaration from the court. More information on how the Act applies