The Mental Capacity Act (2005) currently applies to adults aged 16 years and above. However, as with many things, there are specific areas of exception. One of which is known as ‘Gillick Competency’ (or Gillick Competence), and the related Fraser Guidelines. These two important judgements set out rules around when a young person is deemed competent to make their own decisions without specific parental consent.
What is Gillick Competence?
Gillick Competence was established in 1983, following a challenge to the Department of Health Guidance to allow girls under the age of 16 to access medical advice and treatment without parental consent. Although the original question was around the use of contraception, the ruling covers a child’s own medical treatment without their parents knowing or giving permission.
In order to assess an under-16’s capacity to provide informed consent, they must pass the Gillick test. To pass the Gillick test they must demonstrate sufficient understanding and knowledge of the treatment and the process(es) it involves, awareness of the benefits and risks, as well as the alterative option(s). The medical professional should further rule out any undue influence in pursuing said treatment, and check if there are any fluctuations in capacity.
If the individual (the girl under-16) passes the Gillick test, then they are deemed Gillick Competent for the specific treatment, at the specific time. However, if they are not found to be Gillick Competent, then parental permission must be obtained.
This ruling had significant implications as it establishes that a parent’s authority to direct decisions up until the age of 16 is not absolute. Rather, a child’s capacity to decide treatment for medical purposes is decided based on their maturity and ability to understand, retain and weigh up a decision.
Implications for Mental Capacity
Interestingly, there is a window of ages 16-18 for the specific decision of consent to ‘Care and treatment at a specific care/nursing home or hospital’ that is not presently covered by Gillick Competence or the Mental Capacity Act (2005). This window will be removed once the new codes of practice and guidance come into place alongside the Liberty Protection Safeguards, which will apply to anyone aged 16 and above.
What are the Fraser Guidelines?
The Fraser Guidelines build on the Gillick Competency test, and refer to comments made by Lord Fraser in his judgement of the Gillick case in the House of Lords (1985). These guidelines relate specifically to the issue of contraceptive advice for under-16s. They state that a doctor can give contraceptive advice and treatment without parental consent, provided the doctor is satisfied:
- That the young person 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
While these points apply specifically to contraception, they have been applied more broadly to include other related treatments, including abortion. However, we should note that there may well be exceptions to the guidelines in cases where a child may refuse to consent to treatment, where refusal may cause significant harm.
For more information on Gillick and Fraser, and how they apply in the context of the Mental Capacity Act (2005), please do get in touch.