Gillick competence is the principle that is used to judge capacity in children to consent to medical treatment. It is named after the case of Gillick v West Norfolk & Wisbech Area Health Authority which established that where a person under the age of 16 has reached sufficient maturity to understand the nature and consequences of a proposed medical intervention, and it is in their best interests to do so, then they can provide a valid legal consent on their own behalf.

This consent is only valid when given voluntarily and not under undue influence or pressure. Additionally, a child may have the capacity to consent to some treatments but not to others. The understanding required for different interventions will vary, and capacity to give consent can also fluctuate due to certain mental health conditions. Gillick competence is not status-based but is instead functional.

Therefore, each individual decision point relating to the healthcare intervention in question requires an assessment of Gillick competence.

Where a person under the age of 16 is not Gillick competent and therefore is deemed to lack the capacity to consent to a medical procedure or treatment, this consent can be given on their behalf by someone with parental (or legal) responsibility or by the court. However, there is still a duty to keep the child’s best interests at the centre of any decision, and the child or young person should be involved in the decision-making process as much as possible.

The Fraser guidelines relate only to contraception and sexual health. They are named after one of the Lords responsible for the Gillick judgement.

The House of Lords concluded that advice can be given to the child in this situation as long as:

1. She/he/they have sufficient maturity and intelligence to understand the nature and implications of the proposed treatment
2. She/he/they cannot be persuaded to tell the patient’s parents or to allow the doctor to tell them
3. She/he/they is/are very likely to begin or continue having sexual intercourse with or without contraceptive treatment
4. Her/his/their physical or mental health is likely to suffer unless she/he/they received the advice or treatment
5. The advice or treatment is in the young person’s best interests.

Health professionals should still encourage the young person to inform her/his/their 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 if 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 originally just related to contraceptive advice and treatment but, following a case in 2006, they now also apply to decisions about treatment for sexually transmitted diseases as well as about termination of pregnancy.

 

Under 16: safeguarding considerations

If a young person under the age of 16 presents to a health care professional, then discloses a history raising safeguarding concerns:

• If they are notdeemed to be Gillick competent, the health professional is obliged to raise the issue as a safeguarding concern and escalate their concerns through the safeguarding process
• If they aredeemed to be Gillick competent and disclosure is considered essential to protect them from harm or to be in the public interest, the health professional should escalate their concerns through the safeguarding processes
• In bothcases, the health professional should inform the young person of this action, unless doing so could pose significant additional risk for the young person’s safe care.

It is reasonable for the local authority or police to decide whether it is appropriate to inform the parents of the concerns raised. In some circumstances this may not be in the best interest of the young person.

Adults working or volunteering with children in any context need to consider how to balance children’s rights and wishes with their responsibility to keep children safe from harm. Key issues to bear in mind include:

• The child’s safety is paramount. Child protection concerns must always be shared with the relevant agencies, even if this goes against the child’s wishes.
• Underage sexual activity is a possible indicator of child sexual exploitation and children who have been groomed may not realise they are being abused.
• Sexual activity with a child under 13 is a criminal offence and should always result in a child protection referral.

References and Further reading:

https://www.cqc.org.uk/guidance-providers/gps/nigels-surgery-8-gillick-competency-fraser-guidelines

https://learning.nspcc.org.uk/research-resources/briefings/gillick-competency-and-fraser-guidelines/

https://www.nhs.uk/conditions/consent-to-treatment/children/

https://www.lindsaygeorge.co.uk/blog/is-a-young-person-gillick-competent-/

https://academic.oup.com/medlaw/article/26/3/369/4621374