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.
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.
After being heard in the lower courts the case was sent to the High Court, where in 1984 Mr Justice Woolf dismissed Mrs Gillick’s action stating:
“ ...whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent.”
However, Mrs Gillick appealed and the following year the Court of Appeal overturned the original judgement in her favour.
The House of Lords
It was the turn of the DHSS to appeal and the case went before the House of Lords, where it was examined by the following Law Lords: Lord Scarman, Lord Bridge and Lord Fraser. Their Lordships 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. Lord Fraser summed it up like this:
“It seems to me verging on the absurd to suggest that a girl or a boy aged 15 could not effectively consent, for example, to have a medical examination of some trivial injury to his body or even to have a broken arm set. Of course, the consent of the parents should normally be asked, but they may not be immediately available. Provided the patient, whether a boy or a girl, is capable of understanding what is proposed, and of expressing his or her own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man to make the examination or give the treatment which he advises. After all, a minor under the age of 16 can, within certain limits, enter into a contract. He or she can also sue and be sued, and can give evidence on oath. I am not disposed to hold now, for the first time, that a girl aged less than 16 lacks the power to give valid consent to contraceptive advice or treatment, merely on account of her age.
They ruled in favour of the original judgement by Mr Justice Woolf, also pronouncing that any doctor who exercised clinical judgement when offering contraceptive advice to a girl under 16 without her parent’s consent, would not commit a criminal offence.
So, if Mrs Gillick lost, why do we still refer to a child being ‘Gillick Competent’? This terminology 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 the case specifically involved the issue of medical treatment, the judgement had a broader implication. It 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. When applied to medical records and treatment, if a child is deemed Gillick Competent, then there is no such thing as a parent’s “right to know”.
Lord Frasers’s guidelines relate to comments he made in his part of the judgement, specifically dealing with the issue of contraceptive advice. His Lordship stated that a doctor could give contraceptive advice and treatment to a girl under 16, provided he/she was satisfied on the following points:
- that the young person (although under the age of 16 years of age) will understand the professional’s advice
- the young person cannot be persuaded to inform their parents
- the young person is likely to begin, or to continue having, sexual intercourse with or without contraceptive treatment
- that unless the young person receives contraceptive treatment, their physical or mental health, or both, are likely to suffer
- 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, including the termination of a pregnancy. 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".
For many years safeguarding professionals were led by the ‘Gillick Competent’ test and many practitioners were unaware of the Fraser guidelines, mainly because they relate purely to contraception. More recently there has been a shift to Fraser, with many believing that any reference to Gillick is prohibited because Mrs Gillick has objected to her name being used. This is total nonsense, but has now turned into urban myth that has now embedded itself in many agencies who have safeguarding responsibilities. This myth is based on the falsehood that after losing the case, Mrs Gillick took umbrage to her name being used and associated with assessing a child’s capacity to consent and make decisions. Therefore, as a result we all had to refer to Gillick as the ‘Fraser Guidelines’ instead. Mrs Gillick has in fact gone on record as saying she has never objected or disliked the association with the term ‘Gillick competent’. As a result, there now exists some confusion as to what term safeguarding professionals should use.
The fact is that comments made in the judgements by both Lord Scarman and Lord Fraser address different aspects of the case. Whereas Lord Scarman's test (Gillick competency) is about a child being able to consent where they have a full understanding of the proposed medical treatment, the guidelines Lord Fraser set out in his judgement on the case, specifically apply to the issue of providing contraceptive advice to girls without the consent and knowledge of their parents. Therefore, whilst Lord Fraser’s guidelines are of interest, they do not assist safeguarding professionals in the wider concept of determining a child competency, whereas Gillick does.
If Gillick and Fraser only apply to medical treatment and contraceptive advice, why do safeguarding professionals rely on them when dealing with children in a safeguarding context?
The Children’s Act 1989 does not provide any direction on how to determine a child's capacity for understanding. It is something that has not been tested with the legal system and therefore the principles of Gillick have been widely adopted by safeguarding agencies, to help guide professionals in assessing a child’s maturity and understanding when making their own decisions.
Please note: Where a child is to be interviewed under the rules of ‘Achieving Best Evidence’, professionals should refer to the ‘Achieving Best Evidence in Criminal Proceedings’ guidance (March 2011) in relation to the specific rules on consent.
There is a presumption that children aged sixteen and over are generally Gillick Competent. Neither Gillick or Fraser make reference to age limits, either upper or lower. However, there are of course laws relating to sexual offences that are in place to protect children from exploitation e.g. a child under 13 is not able to legally consent to sexual activity.
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.
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.
House of Lords judgement in the case of Gillick v West Norfolk and Wisbech Area Health Authority.
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