Gillick Competence and Fraser Guidelines

Gillick Competency and Fraser Guidelines, are legal judgements that set out the ‘rules’ around when a child is deemed to be competent to make their own decisions.

They originate from a case where in 1982 Victoria Gillick took her local health authority, (West Norfolk and Wisbech Area) and the Department of Health and Social Security (DHSS) to court, in an attempt to prevent doctors from giving contraceptive advice and/or treatment to under 16-year-olds without parental consent.

The case escalated through the Courts and ultimately a judgement was made by the House of Lords where it was heard by Law Lords Lord Scarman, Lord Bridge and Lord Fraser. The Lords dismissed the issue of parental rights as something that only exists for the benefit of the child, and which is something that diminishes as the child grows and matures. Lord Scarman said: “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.”. They therefore concentrated on the issue of whether a child could consent to medical treatment. The Lords determined that in certain circumstances a child could consent to treatment, and that in these circumstances a parent had no power to prohibit treatment.

The judgement established that a parent’s authority and power to make decisions for their child is not absolute. The rights of the parent reduce as the child reaches the necessary maturity required to have a sufficient understanding and intelligence around the specific matter requiring a decision.

The term ‘Gillick Competent’ is taken from the comments by Lord Scarman when issuing his judgement on the case. He said: “…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.” In other words, a child can consent if he/she fully understands the medical treatment and any implications that might arise from it. These comments are referred to as the test of Gillick competency.

Whilst primarily for medical decisions Gillick competency is also used by practitioners in other settings. For example, if a child or young person:

• would like to have therapeutic support but doesn’t want their parents or carers to know about it, or
• is seeking confidential support for substance misuse.

Some things for professionals to consider when assessing whether a child is Gillick competent:

• child’s age, maturity (physical and mental) and intellect
• do they understand the problem or issue, and what it involves?
• do they understand the risks, implications and any consequences, that may arise from their decision?
• do they understand the advantages and disadvantages of the issue they face?
• do they understand any advice or information they have been given?
• do they understand any alternative options (if available)?
• can they articulate a rationale around their reasoning and decision making?

Professionals should satisfy themselves that the child has come to the decision without any form of coercion, exploitation or influence from a third party.

Lord Frasers’s guidelines relate to comments he made in his part of the judgement, specifically dealing with the issue of contraceptive advice. He  stated that a doctor could give contraceptive advice and treatment to a girl under 16, provided he/she was satisfied on the following points:

1. that the young person (although under the age of 16 years of age) will understand the professional’s advice
2. the young person cannot be persuaded to inform their parents
3. the young person is likely to begin, or to continue having, sexual intercourse with or without contraceptive treatment
4. that unless the young person receives contraceptive treatment, their physical or mental health, or both, are likely to suffer
5. that the young person’s best interests require them to receive contraceptive advice or treatment with or without parental consent

These points have become known as the Fraser Guidelines and whilst they specifically refer to contraception, the medical fraternity have widely accepted them to apply to other treatments. There may be exceptions to this ‘rule’ where a child refuses to consent to treatment, and refusal means that they are likely to suffer “grave and irreversible mental or physical harm”.

Guidance

Brief_guide_Capacity_and_consent_in_under_18s v3.pdf (cqc.org.uk)

Gillick competence and Fraser guidelines | NSPCC Learning