The terms ‘Gillick competence’ and ‘Fraser guidelines’ are frequently when consenting children to medical treatment. These are often used interchangeably despite there being a clear distinction between them.
Gillick competence (assessment of a child's maturity and intelligence) is concerned with determining a child’s capacity to consent while Fraser guidelines are used specifically to decide if a child can consent to contraceptive or sexual health advice and treatment. Confusion and misunderstanding these terms may have profound medicolegal implications.
Gillick competence
In UK law, a person's 18th birthday draws the line between childhood and adulthood. Therefore, an 18-year-old enjoys as much autonomy as any other adult. To some extent, 16 and 17 year-olds can also take medical decisions independently of their parents. The right of younger children to provide independent consent is proportionate to their competence i.e depends on their Gillick Competency. For instance, we have all seen very sensible 16-year-olds who are at par with 20 years old. More commonly, we encounter 22 years old who still behave like a teenager. Therefore, child's age alone is an unreliable predictor of his or her competence to make decisions.
Children under 16 can consent if they are Gillick Competent i.e. if they have sufficient maturity and intelligence to fully understand what is involved in a proposed treatment, including its purpose, nature, likely effects and risks, chances of success and the availability of other options. Decision making competence does not simply arrive with puberty; it depends on the maturity and intelligence of the child and the seriousness of the treatment decision to be made.
The rule in Gillick must be applied when determining whether a child under 16 has the competence to consent. The aim of Gillick competence is to reflect the transition of a child to adulthood. Legal competence to make decisions is conditional on the child gradually acquiring both:
- Maturity - That takes account of the child's experiences and the child's ability to manage influences on their decision making such as information, peer pressure, family pressure, fear, and misgivings.
- Intelligence - That takes account of the child's understanding, ability to weigh risk and benefit, consideration of longer-term factors such as the effect on family life and on such things as schooling.
It is not just an ability to choose but it is an ability to understand, where the child must recognize that there is a choice to be made and that choices have consequences and they must be willing, able and mature enough to make that choice.
If a child passes the Gillick test, he or she is considered ‘Gillick competent’ to consent to that medical treatment or intervention provided if the consent was given voluntarily and not under influence or pressure. The understanding required for different interventions will vary, and capacity can also fluctuate such as in certain mental health conditions. However, where the same child refuses consent then they may obtain it from another person with parental responsibility who can consent to treatment on the child's behalf.
If a child does not pass the Gillick test, then the consent of a person with parental responsibility (or sometimes the courts) is needed in order to proceed with treatment.
Gillick test is not a blood test! It forms a part of the assessment requiring an examination of how the child deals with the process of making a decision based on an analysis of the child's ability to understand and assess risks. It is a high test of competence that is more difficult to satisfy the more complex the treatment and its outcomes become. Where a child is considered Gillick competent then the consent is as effective as that of an adult and cannot be overruled by a parent.
If a Gillick competent child refuses medical examination or treatment then the law does allow a person with parental responsibility to consent in their place. Where a health professional accepts the consent of a Gillick competent child it cannot be overruled by the child's parent. However, where the same child refuses consent then they may obtain it from another person with parental responsibility who can consent to treatment on the child's behalf.
What if a 10 years old appears to meet Gillick Competency? Can we treat him without consent?
There is no lower age limit for Gillick competence or Fraser guidelines to be applied. That said, it would rarely be appropriate or safe for a child less than 13 years of age to consent to treatment without a parent’s involvement. When it comes to sexual health, those under 13 are not legally able to consent to any sexual activity, and therefore any information that such a person was sexually active would need to be acted on, regardless of the results of the Gillick test.
If a person under the age of 16 is not Gillick competent then he/she deemed to lack the capacity to consent, it can be given on their behalf by someone with parental responsibility or by the court. However, there is still a duty to keep the child’s best interests at the heart of any decision, and the child or young person should be involved in the decision-making process as far as possible.
Fraser guidelines
The ‘Fraser guidelines’ specifically relate only to contraception and sexual health. They are named after one of the Lords responsible for the Gillick judgment but who went on to address the specific issue of giving contraceptive advice and treatment to those under 16 without parental consent. The House of Lords concluded that advice can be given in this situation as long as:
- He/she has sufficient maturity and intelligence to understand the nature and implications of the proposed treatment (Is he/she Gillick competent?)
- He/she cannot be persuaded to tell her parents or to allow the doctor to tell them
- He/she is very likely to begin or continue having sexual intercourse with or without contraceptive treatment
- His/her physical or mental health is likely to suffer unless he/she received the advice or treatment
- The advice or treatment is in the young person’s best interests.
Health professionals should still encourage the young person to inform his or her parent(s) or get permission to do so on their behalf, but if this permission is not given they can still give the child advice and treatment. If the conditions are not all met, however, or there is reason to believe that the child is under pressure to give consent or is being exploited, there would be grounds to break confidentiality.
Fraser guidelines apply to contraceptive advice and treatment, decisions about treatment for sexually transmitted infections and termination of pregnancy.
What about taking consent in 16-17 year olds?
Young people aged 16 or 17 are presumed in UK law, like adults, to have the capacity to consent. However, unlike adults, their refusal of treatment can in some circumstances be overridden by a parent, someone with parental responsibility or a court. This is because we have an overriding duty to act in the best interests of a child. This would include circumstances where refusal would likely lead to death, severe permanent injury or irreversible mental or physical harm.
Summary
Gillick competence is the principle we use to judge capacity (maturity and intelligence) in children (<16 years old) to consent to medical treatment. If a child passes the Gillick test, he or she is considered ‘Gillick competent’ to consent to that medical treatment or intervention but If a Gillick competent child refuses consent then they may obtain it from another person with parental responsibility who can consent to treatment on the child's behalf.
Fraser guidelines apply to contraceptive advice and treatment, decisions about treatment for sexually transmitted infections and termination of pregnancy.
There is no lower age limit for Gillick competence or Fraser guidelines to be applied. That said, it would rarely be appropriate or safe for a child less than 13 years of age to consent to treatment without a parent’s involvement.
Further Reading
- Wheeler R (2006) Gillick or Fraser? A plea for consistency over competence in children. BMJ 332(7545): 807
- Gillick v West Norfolk & Wisbech AHA & DHSS [1983] 3 WLR (QBD)
- Axon, R (on the application of) v Secretary of State for Health [2006] EWHC 37 (Admin)
- Mental Capacity Act 2005
- https://www.gmc-uk.org/static/documents/content/0_18_years.pdf
- https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1432156/pdf/bmj33200807.pdf
Posted by:
Lakshay Chanana
Speciality Doctor
Northwick Park Hospital
Department of Emergency Medicine
England
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