Professional Documents
Culture Documents
Assessing decision-making
capacity: children under 16
Richard Griffith
mcpix/iStockphoto
consent to medical examination and
treatment was decided by the House
of Lords in Gillick v West Norfolk and
Wisbech AHA [1986]. In this case a
mother of girls under 16 years objected decisions is conditional on the child The more serious the consequences
to Department of Health advice that gradually acquiring the maturity and of treatment the greater the capacity
allowed doctors to give contraceptive intelligence to be able to make treatment required. For example, in Re L (Medical
advice and treatment to children without decisions. The degree of maturity and Treatment: Gillick Competence) [1998] a
parental consent. Their Lordships held intelligence needed depends on the 14 year old Jehovah’s Witness was badly
that a child under 16 years had the gravity of the decision. A relatively young burned and refused consent to operations
legal capacity to consent to medical child would have sufficient maturity and involving blood transfusions. The
examination and treatment if they had intelligence to be capable of consenting court considered that although she was
sufficient maturity and intelligence to to a plaster on a small cut. Equally, a intelligent, her upbringing in a narrow
understand the nature and implications child who had the capacity to consent to religious family meant she was naïve and
of that treatment. dental treatment or the repair of broken that, as she matured, she would question
bones may lack capacity to consent to her religion further and on that basis she
The test for Gillick competence more serious treatment (Re R (A minor) was not Gillick competent and could not
Nurse prescribers must apply the rule (Wardship Consent to Treatment) [1992]). give a valid refusal of treatment.
in Gillick when determining whether a Decision making capacity therefore A similar conclusion was reached
patient under 16 years has the capacity to does not simply arrive with puberty; it in Re E (A Minor) (Wardship: Medical
consent to examination and treatment. depends on the maturity and intelligence Treatment) [1993] where a 15 year
When determining whether a child of the child and the seriousness of the old Jehovah’s Witness refused blood
has sufficient maturity and intelligence treatment decision to be made. products. The court found the child was
to make a decision, nurse prescribers will For example, a nurse prescriber giving not Gillick competent because he was not
need to take account of: contraceptive advice and treatment to aware of the harrowing manner of his
n The understanding and intelligence of a child will realize there is much to be likely death and therefore, did not have a
the child understood by the child if they are to full understanding within the meaning
n Their chronological, emotional and have capacity to consent. The nurse of Gillick.
mental age prescriber would need to be satisfied that A nurse prescriber must be satisfied
n Their intellectual development not only was the advice understood but that a child has fully understood the
n Their ability to reach a decision that the child had sufficient maturity to nature and consequences of treatment
by appraising the advice about understand what was involved. before they can accept their consent or
treatment in considering the nature, This would include: refusal of treatment. It is for the nurse
consequences and implications of n Moral and family questions such as the prescriber to decide whether or not
that treatment (Gillick v West Norfolk future relationship with parents a child is Gillick competent and able
and Wisbech AHA [1986] per Lord n Long-term problems associated to consent to treatment. However, the
Scarman). with the emotion of pregnancy or its power to decide must not be used as a
The aim of the rule in Gillick is termination licence to disregard the wishes of parents
to reflect the transition of a child to n The health risks associated with sexual whenever the nurse prescriber finds it
adulthood. Legal capacity to make intercourse at a young age. convenient to do so. Those who behave in
such a way would be failing to discharge to be Gillick competent owes that child is, a child under 18 years—is a wholly
their professional responsibilities and a duty of care. There is no right to notify autonomous being (Re M (A Child)
could expect to be disciplined by their the parents against the wishes of the child (Refusal of Medical Treatment) [1999]).
professional body (Gillick v West Norfolk unless it can be justified by one of the Unlike competent adults who are free
and Wisbech exceptions to the duty of confidence (R from the power of others, if a child under
AHA [1986]). (on the application of Axon) v Secretary 18 years refuses medical examination
Where a child is considered Gillick of State for Health [2006]). The need or treatment then the law does allow
competent then the consent is as effective for a duty of confidence is seen as others to consent even if the child has
as that of an adult. This consent cannot crucial to a child’s treatment. If a duty capacity. Lord Donaldson summed up
be overruled by a parent. of confidentiality was not imposed this the position when he held that (Re W
‘would probably or might well deter (A minor)(Medical treatment court’s
The Law in Scotland young people from seeking advice and jurisdiction) [1992] per Lord Donaldson
The rule in Gillick does not apply in treatment’ (R (on the application of Axon) MR at 641):
Scotland. Children in Scotland do have v Secretary of State for Health [2006] per
a right to consent to treatment under Justice Silber at 46). ‘I now prefer the analogy of the legal
the Age of Legal Capacity (Scotland) The duty of confidence extends to ‘flak jacket’ which protects the doctor
Act 1991, section 2(4). This allows a access to health records. Disclosure of a from claims by the litigious whether he
child to consent to medical procedures Gillick competent child’s health record acquires it from his patient, who may be
and treatment where a qualified health cannot occur without the consent of the a minor over the age of 16 or a ‘Gillick
professional is of the opinion that the child (Data Protection Act 1998). competent’ child under that age, or
child is capable of understanding the from another person having parental
nature and possible consequences of Can parents continue to responsibilities which include a right to
the treatment. consent to treatment of the minor.
consent? Anyone who gives him a flak jacket
Capacity and Although both the courts and parliament (ie consent) may take it back, but the
allow children to make treatment doctor only needs one and so long as he
confidentiality decisions for themselves as they mature continues to have one he has the legal
A nurse prescriber who considers a child the Courts hold that no minor—that right to proceed.’
Conclusions
Consent is a necessary component for the
propriety of examination and treatment.
Nurse prescribers require a valid consent
or other operation of law, such as an
emergency, before they can examine or
treat a patient, whether this is a child or
adult. For children it can be seen that at
both statute and common law a minor
under 16 years is given the legal right to
consent to treatment as they develop and
mature towards adulthood.
As a child matures to adolescence
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