Medico-legal - Understanding Gillick competence

MDU medico-legal adviser Dr Emma Cuzner explains the principles behind Gillick competence.

Gillick competent patients understand the nature of a treatment (Photograph: SPL)
Gillick competent patients understand the nature of a treatment (Photograph: SPL)

A landmark legal judgment about whether doctors could prescribe contraception to patients under 16 without parental authority has been central to decisions about consent for healthcare treatment of younger patients for 25 years.

Victoria Gillick, a mother of 10, hit the headlines in the 1980s when she challenged the right of doctors to prescribe contraception to children under 16 without the authority of their parents.1

Mrs Gillick took legal action against the Area Health Authority (AHA) and sought to have DoH guidance about prescribing contraception to children under 16 declared unlawful.

She failed in her attempt at the High Court, but she then took her case to the Court of Appeal where she was successful. However, when the case finally reached the House of Lords in 1985 the majority decided in favour of the AHA and the DoH.

Giving his judgment, Lord Fraser maintained the only practicable course was to entrust doctors to act with discretion in the best interest of their patients. A doctor should try to persuade the patient to agree to inform her parents. However, it was felt there would be cases where the patient refused to tell her parents herself or to permit her doctor to do so.

A doctor would be justified in proceeding without parental authority, or even knowledge, provided:

  • The patient, although under 16, would understand the advice.
  • The doctor cannot persuade the patient to inform her parents or allow the doctor to inform the parents she is seeking contraception advice.
  • The patient is very likely to begin or to continue having sexual intercourse.
  • The patient's physical or mental health could suffer unless she receives contraceptive advice or treatment.
  • Her best interests require the doctor to give her contraceptive advice, treatment or both without parental consent.

Gillick competence
While the Gillick case concerned the provision of contraceptive treatment, the term Gillick competence can be applied generally to any patient aged under 16 who is judged able to consent to treatment.

Under the Family Law Reform Act 1969, children age 16 and over are deemed competent to consent to medical treatment and the Gillick principles are not applicable.

Gillick competent patients are sufficiently mature to understand the nature, purpose, potential risks and the alternatives of a treatment. However, that ability will vary with age, the child and the type of procedure. For example, a 12-year-old may be able to understand the nature and purpose of simple antihistamines for hay fever but the same may not be true with extensive orthopaedic treatment.

If a child is not Gillick competent, the parents or those with parental responsibility must authorise treatment on the child's behalf.

If a Gillick competent child refuses consent, this will not necessarily override authorisation given by someone with parental responsibility or the court. However, such authorisation means treatment could be undertaken against the child's wishes.

In deciding whether a particular treatment is in a child's best interests, a doctor needs to consider the consequences if the child's condition is left untreated and also the effect of imposing treatment on the child.

Doctors should also bear in mind the child's age and emotional development and the nature and possible consequences of the proposed treatment.

Decision making
In Consent: patients and doctors making decisions together (2008), the GMC says: 'You should involve young people as much as possible in discussions about their care, even if they are not able to make decisions on their own.'

Additionally, you must follow the guidance 0 to 18 years: guidance for all doctors. In particular the chapter 'Making decisions' (paragraphs 22 to 41). This explains the different legal requirements across the UK for decision-making involving children and young people.

It is important that competent teenagers feel able to consult their doctor about contraception, abortion or any other aspect of their health in confidence, otherwise they may be reluctant to seek advice from doctors about sensitive issues.

GPs need to decide, on a case-by-case basis, whether the child is Gillick competent and always discuss involving parents in decision making.

If in doubt, it is advisable to seek advice from your medical defence organisation before proceeding.

Case study
A 15-year-old girl saw her GP with an ectopic pregnancy. She had been prescribed a contraceptive pill by the family planning clinic for more than a year. The girl asked the doctor not to tell her parents about either the pregnancy or the treatment. The GP rang the Medical Defence Union (MDU) for advice.

The MDU advised that the patient could consent to treatment if she had the intelligence and maturity to understand the nature, purpose, benefits and risks of the treatment, as well as the risk of going untreated and any alternatives. If so, her consent alone may be valid.

If the patient has capacity to consent, she could also give or withhold consent to disclosure of confidential information.

The GP was advised to take every reasonable step to persuade her to involve her parents. However, if she refused, the GP was advised to accept this and to make a note of the discussion in the patient's records.

  • Dr Cuzner is a medico-legal adviser for the Medical Defence Union
  • The case mentioned is fictitious, but based on cases from the MDU's files. Doctors with specific concerns are advised to contact their medical defence organisation for advice.

Reflect on this article and add notes to your CPD Organiser on MIMS Learning

Reference
1 Gillick v West Norfolk and Wisbech. AHA (1985) 3 All ER 402-37.

    CPD IMPACT: EARN MORE CREDITS

    These further action points may allow you to earn more credits by increasing the time spent and the impact achieved.

    • Discuss Gillick competence at a practice meeting and review any adverse incidents involving breaches of confidentiality involving patients under 16 years.
    • Develop or review your practice policy about how to manage these cases.
    • Familiarise yourself with the GMC's guidance on treating children and young patients up to 18 years (www.gmc-uk.org).

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