A Safeguarding Hub – Useful Resource  

Safeguarding Hub ‘guides to useful resources’ provide a brief oversight of the subject matter, combined with a selection of handpicked links and documents, all aimed to provide a complete package of knowledge for the safeguarding professional. We aim to keep them refreshed every six months, but if you become aware of any broken links, please email us and let us know.

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

Overview

In 1982 activist and campaigner 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. This legal action challenged 1980 guidance by the DHSS to medical practitioners, which advised that in certain ‘exceptional’ cases, a doctor could lawfully prescribe contraception to a girl under age 16 without her parents’ consent. Mrs Gillick sought a declaration arguing that this was unlawful. Additionally, she contended that a doctor prescribing contraception to a person under 16 years would also be illegal as it would amount to encouraging sexual intercourse with a child.

Applying the Fraser and Gillick Principles to safeguarding

A young person who is deemed Gillick competent has the right to have their views, wishes and decisions respected. However, safeguarding professionals need to balance the wishes of the child with a duty to keep them safe from harm. Where safeguarding issues are identified, professionals have to act in the best interests of the child, even when this is in conflict with the child’s wishes. Practitioners should also be aware that whilst a child might show maturity and understanding around one important area that requires their decision, they may not necessarily have the same understanding around another issue, depending on the complexity of the subject and decision they are faced with. There capacity to understand may also be affected by other factors e.g. health, social or emotional issues.

Some things 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.

The Resources

From the Government 

‘Reference guide to consent for examination or treatment (2nd edition)’ – Guidance from the Department of Health concerning consent to physical examination or treatment. Covers children and young people. This is a medical guide only and does not cover capacity and understanding in the wider safeguarding concept.

Article from the Care Quality Commission cover Gillick and Fraser from a medical point of view.

Care Quality Commission – Brief guide: capacity and competence to consent in under 18s’

From the Non-Government Agencies

‘NSPCC – Gillick competency and Fraser guidelines’ – 2-page information sheet.

‘A child’s legal rights Legal definitions’ – web page from the NSPCC explaining the ages and legal rights of children.

The Legislation

House of Lords judgement in the case of  Gillick v West Norfolk and Wisbech Area Health Authority.

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