EXPLORE PAST ISSUES
Consent
Vol. 18 No 3 | Spring 2016
Feature
To treat or not to treat: does Gillick competence answer the question?
Dr Scott Shemer
MBBS, BMedSc, FRANZCOG trainee
Dr Nicole Woodrow
MBBS, MRCOG, FRANZCOG, DDU, COGU, MBioeth


This article is 3 years old and may no longer reflect current clinical practice.

It was a 1980 UK National Health Service (NHS) circular providing guidance to practitioners offering contraceptive prescribing advice to those under the age of 16 years that outraged Victoria Gillick. It stated:

It is … widely accepted that consultations between doctors and patients are confidential, and the Department recognises the importance which doctors and patients attach to this principle. To abandon this principle for children under 16 might cause some not to seek professional advice at all. They could then be exposed to the immediate risks of pregnancy and of sexually-transmitted disease, as well as other long-term physical, psychological and emotional consequences which are equally a threat to stable family life… The Department realises that in such exceptional cases the nature of any counselling must be a matter for the doctor or other professional worker concerned and that the decision whether or not to prescribe contraception must be for the clinical judgment of a doctor.1

At that time, consent to medical procedures, including family planning advice and treatment, could only be given from the age of 16 years.2

In January 1981, Gillick wrote to the local health authority, requesting, ‘written assurance that in no circumstances whatsoever will any of my daughters be given contraceptive or abortion treatment while they are under 16 in any of the family planning clinics under your control, without my prior knowledge, and irrefutable evidence of my consent. Also, should any of them seek advice in them, can I have your assurance that I would be automatically contacted in the interests of my children’s safety and welfare? If you are in any doubt about giving me such assurances, can I please ask you to seek legal medical advice.’3

Victoria Gillick received a reply which stated that doctors would rely on clinical judgment. Her incensed response clearly stipulated that she ‘formally forbid’ any medical staff to give contraceptive or abortion advice or treatment to her daughters while they were under 16 years of age without her consent. Gillick’s demands were not met and, subsequently, she commenced legal proceedings.

Her initial application to the High Court in 1983 was rejected. In his judgment, Lord Fraser respectfully noted that Mrs Gillick, a Roman Catholic, had a ‘normal and happy’ relationship with her ten children, including five daughters under the age of 16. He acknowledged that she was not motivated by an issue with her own children and that there was no ‘likelihood of any of the daughters seeking contraceptive advice or treatment without the consent of their mother.’4

This decision prompted her to exclaim ‘God Almighty… The judge doesn’t realise there are a large number of doctors happily encouraging children to be promiscuous.’5

Her tenacity was rewarded with a successful Appeal Court ruling the following year, which stipulated contraception should not be given to girls under the age of 16 years without parental consent. However, the Health Authority appealed to the House of Lords in 1985. Lord Scarman concluded that ‘as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.’

Therein, Lord Fraser described five criteria, that specifically addressed the dilemma of providing contraceptive advice to girls without the knowledge of their parents:

  1. a minor should understand the doctor’s advice;
  2. the minor cannot be persuaded to inform her parents that she is seeking contraceptive advice;
  3. she was likely to have sexual intercourse even if treatment were not offered;
  4. unless she received contraceptive advice, her physical and/or mental health would suffer; and
  5. her best interest required treatment or advice without parental consent.

The Law Lords thus instituted a ‘capacity criterion’ for mature minors, replacing the status criterion of age 16 as the legal standard of consent. Importantly, the Law Lords established
a legal distinction between consent for and refusal of treatment by a minor. They concurred that the healthcare practitioner ‘has recourse to the law, and in these cases the court decides whether or not this decision should be respected’.6

Australian law

The High Court of Australia has upheld the right of mature minors to consent to medical treatment in line with the UK Gillick decision, including when there is a conflict with the wishes of the parents. Table 1 summarises some important Australian case law decisions regarding consent of mature minors.

Case Summary Significance
Establishing Gillick competence in Australia

 

‘Marion’s Case’7

A 14-year-old intellectually disabled girl whose parents and doctors sought a court order for her to have a hysterectomy and oophorectomy to prevent pregnancy and menstruation, believed to be causing behavioural and psychological disturbance.
  1. The Court was required to decide who makes the decision in such cases – the parents, the minor or a court authority. In summary, parents do not have the right to consent to sterilisation of their child as it is not a therapy thought to be in the best interests of the child. It is deemed to be a ‘special medical procedure’.
  2. Gillick competence upheld. The High Court stated that there is a sliding scale of decreasing parental control in a maturing child, regardless of intellectual disability.
Refusal of treatment

 

X v The Sydney Children’s Hospitals Network8

A 17-year-old of Jehovah’s Witness faith with Hodgkin’s disease had severe anaemia post chemotherapy. His doctors claimed that he had an 80 per cent chance of dying from the anaemia if no blood transfusion/ platelets were given.

The hospital sought a court order permitting medical treatment, including sedation for administration thereof.

 

The Court held that while refusal to consent for mature minors was important, it did not prevent a Court from authorising medical treatment where the best interests of the child or young person require it.

Gender dysphoria Re Jamie9 Jamie (born male) had identified as female since age 2 years. At age 10, her pubescent development was of a 14-year-old male and, since she lived exclusively as a girl, she developed severe anxiety. Jamie sought, through her parents, Court approval for commencement of Stage 1 puberty-suppressing medication (Zoladex), which is reversible, and Stage 2 administration of hormone treatment (potentially irreversible). The Family Court made a distinction between the stages of gender dysphoria treatment.

  • Stage 1: parents can lawfully consent for a child.
  • Stage 2: requires court authorisation, unless the child is Gillick competent. Furthermore, Gillick competence regarding Stage 2 treatment must be determined by the Court, even if the parents and treating clinicians agree.
Termination of pregnancy (TOP) of a 12 year old in Queensland

 

Central Queensland Hospital and Health Service v Q10

A 12-year-old girl with complex social and psychological issues requested a TOP which was upheld by multiple health professionals (including two obstetricians) and her mother. The hospital requested a Court authorisation for protection from a criminal claim of trespass or illegal TOP.

The Supreme Court granted permission for the TOP.

  1. The Court commented:
    • It is appropriate that decisions about terminating the pregnancies of 12-year-olds should be referred to the Supreme Court. A decision to terminate a pregnancy is one procedure where the parent’s consent is arguably not sufficient.
    • Gillick competence was not achieved as the child was unable to make an ‘informed decision’ since the consequences of the alternative choice, not terminating, were not fully apparent to her
  2. The criminal code of the Queensland abortion laws has been criticised as necessarily complicating the management of these children, causing potential harm.11

Some Australian states have impacted on the case law by enacting statutes that attempt to restrict some surgical procedures on young persons under 18 years. Specifically, Queensland has enacted laws to prohibit solariums and cosmetic procedures (presumably including ynaecological) on children, except when it is in their ‘best interests’.12 The law attempts to reconcile the competing issues of the child’s vulnerability, respect for parental consent and a mature minor’s autonomy.13

Australian courts, in line with the development of the Gillick test by the British Law Lords, have been reluctant to give mature minors the right to refuse necessary medical treatment. For example, in the management of diabetes,14 therapy for self harm15 and blood transfusions for Jehovah’s Witnesses.16

The most recent controversy in the application of Gillick competence in Australian law involves cases of gender dysphoria. Who has the authority to consent to potentially irreversible Stage 2 treatment? In Re Jamie (No 2)17 the Full Family Court held that a transgender young person could undergo Stage 1 puberty suppression without requiring court approval. This  has been viewed as a positive step in depathologising gender dysphoria and relieving families of the burden of expensive legal proceedings.18 Additionally, potentially irreversible Stage 2 treatment with oestrogen or testosterone could be given to a Gillick competent minor without the need for court approval. That is, the court’s only role is as a ‘safeguard’ for determining Gillick competence.

Policy and guidelines

The Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) supports the legal concept of the mature minor. RANZCOG acknowledges that in situations where a child is ‘sufficiently intelligent’ and ‘sufficiently comprehends’ the nature and possible outcomes of the proposed treatment, that consent may be given without parental input.19 Indeed, this must take into consideration ‘the young person’s cognitive ability and their emotional understanding of a situation; their capacity to weigh up options and their consequences (both positive and negative); their ability to express their wishes; their capacity to make decisions in other areas.20 Nevertheless, RANZCOG does suggest that, especially in the setting of major diagnostic and therapeutic medical care, consideration should be given to the consent of a parent or guardian as the ‘safest option’. In situations where this is not possible, a second opinion from either another suitably qualified medical practitioner or a medical defence organisation should be obtained.

Although Royal College of Obstetricians and Gynaecologists (RCOG) Guidelines state that each case must be individualised, RCOG too recognises that mature minors may consent independently, should they be deemed Gillick or Fraser competent.21 It references the British Medical Association and the Law Society (England and Wales) by recommending the following criteria are used when assessing the capacity of a minor:22

  • the ability to understand that there is a choice and that choices have consequences;
  • a willingness and the ability to make a choice (including the option of choosing that someone else makes treatment decisions);
  • an understanding of the nature and purpose of the proposed procedure;
  • an understanding of the proposed procedures, risks and adverse effects;
  • an understanding of the alternatives to the proposed procedure and the risks attached to them, and the consequences of no treatment; and
  • the freedom from pressure.

Importantly, special attention is drawn to refusal of treatment. Indeed, it is highlighted that minors may not have the same legal rights to withhold consent, such that refusal of treatment may be overridden by parental consent or the courts.

The National Institute for Health and Care Excellence (NICE) also endorses the Fraser guidelines.23 It specifically outlines a gold standard of care for the provision of contraceptive services. It proposes that both written and verbal information on all types of contraception be made conveniently available at all times. Furthermore, it suggests that contraception will be optimally used if an individual has the ability to choose the method most suitable for her/his particular needs and lifestyle. Notably, this also applies to ‘everyone under age 16 who is competent to consent to contraceptive treatment.’24

Conclusion

Victoria Gillick set in motion a series of legal proceedings addressing the issue of consent by minors that continues to guide us today. The House of Lords introduced the notion of the ‘mature minor’, enabling children under the age of 16 to consent should they be deemed competent to do so. It is clear that the ability to consent means more than simply understanding the general nature of the treatment. Evidently, one must demonstrate an ability to understand the broader consequences of the decision, and the capacity to balance the risks and benefits of the proposed treatment. It seems widely accepted that we retain Gillick competence as the principle with which to judge capacity in children. The Fraser guidelines should continue to be used as they were initially described, recognising the importance of the Gillick test for guidance of children receiving contraceptive advice.25

There are likely to be further developments of the Gillick test in the law with regards to refusal of treatment and gender dysphoria.

References

  1. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.
  2. Family Law Reform Act 1969 section 8.
  3. Welstead M, Edwards S. Family Law 4th Edition. p329. Core Text Series: Oxford University Press; 2013.
  4. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1985] 3 All ER 402 Lord Fraser Judgment-1.
  5. BBC Home. 1983: Mother loses contraception test case. 26 July 1983 (cited 30 May 2016) Available from: http://news.bbc.co.uk/onthisday/hi/dates/stories/july/26/newsid_2499000/2499583.stm.
  6. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1985] 3 All ER 402 Lord Fraser Judgment-1.
  7. Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218; [1992] HCA
  8. X v The Sydney Children’s Hospitals Network [2013] NSWCA 320.
  9. Re Jamie [2013] FamCACF 110 at [1] (Jamie (No2)).
  10. Central Queensland Hospital and Health Service v Q [2016] QSC 89.
  11. www.crikey.com.au/2016/05/02/abortion-ruling-queensland-rockhampton.
  12. Health Legislation (Restriction on Use of Cosmetic Surgery for Children and Another Measure) Amendment Act 2008 (Qld).
  13. McIlwraith J, Madden B. Health Care and the Law. 6th Edition. Sydney: Thomson Reuters; 2014; p102.
  14. Re Helen [2010] NSWSC 1560.
  15. Re Thomas [2009] NSWSC 217.
  16. X v The Sydney Children’s Hospitals Network v X [2013] NSWSC 368.
  17. Re Jamie [2013] FamCACF 110 at [1] (Jamie (No2)).
  18. Michael Williams, John Chesterman and Phil Grano Re Jamie (No 2): A positive development for transgender young people (2014) 22 JLM 90.
  19. RANZCOG. Consent and provision of information to patients in Australia regarding proposed treatment C-Gen 2(a) www.ranzcog.edu.au/component/docman/doc_view/899-c-gen-02-guidelines-for-consent-and-the-provision-of-information-regarding-proposed-treatment-.html.
  20. RANZCOG. Consent and provision of information to patients in Australia regarding proposed treatment C-Gen 2(a) www.ranzcog.edu.au/component/docman/doc_view/899-c-gen-02-guidelines-for-consent-and-the-provision-of-information-regarding-proposed-treatment-.html.
  21. www.rcog.org.uk/globalassets/documents/guidelines/clinical-governance-advice/cga6.pdf.
  22. https://stratog.rcog.org.uk/tutorial/ethical-and-legal-issues/obtaining-informed-consent-from-the-under-16s-34. BMA and Law Society.
  23. NICE advice [LGB17] Published date: March 2014 www.nice.org.uk/advice/lgb17/chapter/facts-and-figures.
  24. Wheeler R. Gillick or Fraser? A plea for consistency over competence in children. BMJ. 2006; 332:807.
  25. Wheeler R. Gillick or Fraser? A plea for consistency over competence in children. BMJ. 2006; 332:807.

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