What is Gillick competence?

Abstract

This article considers the requirements for Gillick competence, it highlights the factors that must be considered when determining whether a child is competent to give consent to treatment.

Keywords:

• competence
• consent
• Gillick
• immunization

Introduction

Obtaining consent for immunization becomes more complex where parental responsibility and the developmental concept of Gillick competence become intertwined as the child matures to adulthood. It is essential that health professionals are able to identify who can give consent on behalf of a child and how to determine whether a child has the competence to make a decision about receiving immunization themselves.

Consent

Consent is the legal expression of the moral principle of autonomy. It underpins the propriety of the treatment and furnishes a defense to the crime of battery and civil wrong of trespass.¹ It must be obtained before an immunization can proceed.

Children and the Law of Consent

The United Nations Convention on Children's Rights (UNCRC; 1989) defines a child as any person under 18; however, by convention British courts refer to all persons under 18 as minors, those under 16 as children and 16 and 17 y olds as young persons.² The UNCRC requires that childhood is recognized as a developmental period and that our domestic laws must be developed ‘in a manner consistent with the evolving capacities of the child’ (United Nations 1989, Article 5).² As children grow and develop in maturity, their views and wishes must be given greater weight and their development toward adulthood must be respected and promoted.

This key principle is reflected in consent law applied to children. Kennedy & Grubb (1998) argue that children pass through 3 developmental stages on their journey to becoming an autonomous adult.³

1. The child of tender years who rely on a person with parental responsibility to consent to treatment.

2. The Gillick competent child under 16

3. Young person's 16 and 17 y old who are able to consent to treatment as if they ‘were of full age’.⁴

The Gillick Competent Child

The right of a child under 16 to consent to medical examination and treatment, including immunization was decided by the House of Lords in Gillick v West Norfolk and Wisbech AHA [1986] where a mother of girls under 16 objected to Department of Health advice that allowed doctors to give contraceptive advice and treatment to children without parental consent.⁵ Their Lordships held that a child under 16 had the legal competence to consent to medical examination and treatment if they had sufficient maturity and intelligence to understand the nature and implications of that treatment.⁵

Gillick or Fraser an Urban Myth

Wheeler (2006) argues that something of an urban myth has emerged over the use of the term Gillick competence.⁶ It suggests that Mrs Gillick wishes to disassociate her name from the assessment of children's capacity, thus carrying the implication that the objective test of a child's competence should be renamed the Fraser competence. Alteration of an established legal test would be unusual, and cause confusion and following correspondence with Victoria Gillick, Wheeler is clear that she “has never suggested to anyone, publicly or privately, that [she] disliked being associated with the term ‘Gillick competent’.”⁶

Gillick competence is therefore the correct term, still used by judges and health professionals, to identify children aged under 16 who have the legal competence to consent to immunization, providing they can demonstrate sufficient maturity and intelligence to understand and appraise the nature and implications of the proposed treatment, including the risks and alternative courses of actions.

Assessing Gillick Competence

The rule in Gillick must be applied when determining whether a child under 16 has 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 effect on family life and on such things as schooling.

The degree of maturity and intelligence needed depends on the gravity of the decision. A relatively young child would have sufficient maturity and intelligence to be competent to consent to a plaster on a small cut. Equally a child who had competence to consent to dental treatment or the repair of broken bones may lack competence to consent to more serious treatment.⁷ This could be because they do not understand the treatment implications or because they felt overwhelmed by the decisions they are being asked to make and so lacked the maturity to make it.

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.

Gillick competence is a functional ability to make a decision. It is task specific so more complex procedures require greater levels of competence. When assessing Gillick competence for immunization, a health professional has to decide whether the child is or is not competent to make that particular decision. It is not just an ability to choose where the child recognizes that there is a choice to be made and is willing to make it. Rather 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.

Health professionals must be satisfied that the child understands:

• The necessity for immunization and the reasons for it; and

• The risks, intended benefits and outcomes of the proposed immunization and alternatives to immunization, including the option of not having or delaying the immunization.

Assessment of Gillick competence requires 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. To date no court has found a child in need of life sustaining treatment competent to refuse that treatment.⁸

Sufficient time for the assessment must be allowed by the health professional who needs to be satisfied that a child has fully understood the nature and consequences of the proposed immunization and is mature enough to take account of broader health and social factors when making their decision.

The right to decide on competence must not be used as a license to disregard the wishes of parents whenever the health professional finds it convenient to do so. Health professionals who behave in this way would be failing to discharge their professional responsibilities and could expect to be disciplined by their professional body.⁵ 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.

Refusal of Treatment

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. Lord Donaldson summed up the position when he held that.⁹

[Consent] protects the [health professional] from claims by the litigious whether they acquire it from their patient, who may be a minor over the age of 16 or a ‘Gillick competent’ child under that age, or from another person having parental responsibilities which include a right to consent to treatment of the minor.

Anyone who gives him consent may take it back, but the [health professional] only needs one and so long as they continue to have one they have the legal right to proceed.⁹

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.

Immunization, Safeguarding or Parental Choice

Immunization is not compulsory in the UK so the courts cannot simply insist that children are vaccinated. Courts cannot treat the matter as a case of significant harm to a child that would warrant state intervention under the Children Act 1989.

However, where parents are in dispute with each other over an issue of parental responsibility, that can include disagreement over immunization, then if negotiation fails they can go to court to resolve the matter. Although a question of private law rather than state intervention into family life, the courts are still obliged to follow the provisions of the Children Act 1989 and consider the best interests of the welfare of that child.

Childhood immunization was considered by the High Court.¹⁰ and subsequently by the Court of Appeal.¹¹ in a case that concerned 2 girls aged 4 and 10 y whose mothers had fundamental objections to immunization and had refused to allow their daughters to receive any of the usual childhood vaccinations. Their fathers made an application to the court seeking the immunization of their children. The two girls lived with their respective mothers. Both fathers were in contact with their daughters and had parental responsibility through court orders. The fathers argued that the immunizations were in the children's best interests.

As the case concerned a fundamental issue of parental responsibility the High Court heard the case under the provisions of section 8 of the Children Act 1989. This provides private law remedies to settle matters of parental responsibility concerning a child. Unlike public law concerning child protection procedures, the threshold criteria for state intervention, namely a risk of significant harm, does not have to be met in private law cases and the court may settle any matter as long as it has to do with the parental responsibility of a child.

More recently the court has considered the immunization of older children. In F v F [2013] the High Court ordered that sisters aged 11 and 15 y must receive the MMR vaccine.¹¹ Mr Justice Sumner made it clear that although the case concerned a dispute between parents his only concern was for the best interests of the welfare of the children.

The judge concluded that immunization would be in the best interests of the welfare of each child. The age of the children was significant in this case. At 11 and 15 y the judge was obliged to consider whether they were Gillick competent, in that they had the maturity and intelligence to refuse the MMR vaccine. The judge concluded that neither child was competent due to the influence of the mother on their beliefs about immunization.¹²

In Re B (Child) [2003] the Court of Appeal accepted that, in general, there is wide scope for parental objection to medical intervention. Lord Justice Thorpe viewed medical interventions as existing on a scale. At one end there are the obvious cases where parental objection would have no value in child welfare terms, for example urgent lifesaving treatment such as a blood transfusion. At the other end are cases where there is genuine scope for debate and the views of the parents are important. Immunization he held was an area where there was room for genuine debate.¹¹

Immunization is voluntary and generally it is for those who have parental responsibility for a child or children who are Gillick competent to decide on immunization. It is not a question of neglect or abuse that would trigger child protection proceedings.

Although people with parental responsibility were generally free to act alone when making decisions for their children this freedom was not unfettered. He held that there are a small group of decisions to be made about a child that require the agreement of both parents; these include changing a child's surname, sterilisation and circumcision. This small group he said now included hotly disputed immunization.¹¹

The Practicality of Enforcement

Despite the granting of an order by the High Court it is known that practical difficulties have, to date, prevented the giving of the vaccine to the children in the F v F [2013] case (Hickey 2013).^12,13

A number of enforcement measures are available to the court but these are at the discretion of the judge who will again need to balance the best interests of the child against the impact of any enforcement measure. Under the Family Proceedings Rules 1991 a penal notice may be attached to a specific issues order. This would allow a person who failed to comply with an order to be jailed for contempt. Alternatively the court could direct enforcement by arranging for the removal of the child by an officer of the court for the forcible administration of the immunization. In practice both remedies are unlikely to be sanctioned as their impact on the child's welfare would be detrimental.

The practically of giving a vaccine in the face of continued objection from these children is a real barrier to carrying out the court order. Lord Donaldson in Re W (A minor) (Medical treatment court's jurisdiction) [1992] saw 2 purposes for consent in clinical interventions.⁹ The first was the legal defense to an allegation of unlawful touch or trespass to the person. Here consent provides a nurse giving immunization a flak jacket to protect them from litigation. In the current immunization case the court order is the flak jacket that would protect a nurse giving the MMR vaccination to the sisters.

Lord Donaldson stressed that consent also has a second equally important clinical purpose:

The clinical purpose (of consent) stems from the fact that in many instances the co-operation of the patient, and the patient's faith or at least confidence in the efficacy of the treatment, is a major factor contributing to the treatment's success. Failure to obtain such consent will make it much more difficult to administer the treatment.⁹

Failure to obtain the co-operation of the children will make it very difficult to safely give the MMR. Consent is permission to touch and give the agreed treatment. It does not compel nurses to provide the treatment. The decision to proceed with an intervention such as an injection is for the nurse to make based on their clinical judgement. If the nurse's judgement is that attempting to give the immunization in the face of continued resistance from the child then it is open to the nurse to refuse to proceed at that time.

Conclusion

Consent is essential to the propriety of treatment and is necessary to meet the requirements of the law. Treatment cannot generally proceed without it. The United Nations Convention on the Rights of the Child requires that the evolving capacities of children are respected and this requirement is reflected in the law of consent where a child with the necessary maturity and intelligence can give valid consent to examination or treatment.²

Health professionals must be confident in assessing a child's Gillick competence in order to ensure that the child's rights are respected, this requires the health professional to evaluate the child's maturity and intelligence when seeking consent to immunization. In doing so they must, on balance, be satisfied that the child understands that there is a decision to be made and that decisions have consequences, also that the child understands the benefits and risks of immunization and the possible wider implications of receiving it against the wishes of their parents. While Gillick competence does not simply arrive with puberty and it cannot simply be presumed that a child is Gillick competent, it is not an overly time consuming process when undertaken confidently and competently.

Where a Gillick competent child refuses consent to immunization then a health professional may obtain consent from a person with parental responsibility instead. Where both parents and a Gillick competent child refuse then resorting to litigation is likely to be an ineffective approach. The courts do not adopt an unquestioning recommendation of immunization but give careful consideration to each case on its facts. Immunization may not be appropriate in every case. The court views immunization as a voluntary process that both parents are entitled to be consulted on. Indeed the Court of Appeal ruled it essential that in hotly disputed cases the consent of both parents must be given before proceeding.

Yet even where, as in F v F [2013],¹² the courts order that children be given the immunization, the practicalities of actually doing so mean that the children remain unvaccinated. A court order is no guarantee that the vaccine will be administered.

Disclosure of Potential Conflicts of Interest

There are no potential conflicts of interest.