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Gillick competence. Teenager receiving injection from doctor.

Gillick Competence and the Fraser Guidelines

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.

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Central Middlesex Hospital, part of London NW University Hospital Trust

Patient dies as NHS Trust fails to comply with the MCA

On the 29th December 2021, Jenny Kitzinger and Celia Kitzinger shared a challenging and troubling case on the website Open Justice Court of Protection.  This case demonstrates the lack of knowledge and application of the Mental Capacity Act (2005) by London North West University Healthcare NHS Trust, who continue to be rated as ‘Requires Improvement’ by the Care Quality Commission. 

In this case, the patient, Mrs W, had her nasogastric tube removed by medical staff on 10th November 2021. Mrs W had previously assigned the role of Lasting Power of Attorney (LPA) for Health and Welfare to her children. However, her children were not consulted in this process, and the clinicians declined to reinstate the feeding tube when challenged. The Trust then proceeded to withdraw hydration from Mrs W as well.

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Holding hands

What is a Relevant Person’s Representative (RPR)?

A Relevant Person’s Representative (RPR) is a necessary and essential role under the Deprivation of Liberty Safeguards (DoLS). It is the role of the RPR to maintain regular contact with the relevant person who has been deprived of liberty, and represent them in all relevant matters. This can include: appealing against a DoLS authorisation, requesting a review, ensuring least restrictive practices are in place or raising a complaint.

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Lady with emotional disabilities using pet therapy

Impact of LPS on supported living

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In recent years, the Courts have recognised the growing number of areas to which Deprivation of Liberty Safeguard (DoLS) should apply, with the result being that Community Orders have been added to the DoLS process. Yet still there has been gaps where people have not had capacity to consent to their placement and care, yet not had an authorisation requested or considered.  

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Assessing capacity: lady and man in wheelchair wearing coats looking into the distance

Common errors in Mental Capacity Assessments

I’ve been involved with the field of Mental Capacity for many years now, both as an assessor and an advocate. In this time, I’ve encountered a whole range of common errors and mistakes that come up time and time again.

These errors can have a major impact on a person’s quality of life, and ability to make decisions for themselves. Not only that, but they also leave open the risk that if the Mental Capacity decision is ever to be challenged, then it will quickly be dismissed and overruled by governing bodies such as the Court of Protection.

However, thankfully, most of these errors are easily avoidable and simple to resolve with adequate reflection, preparation and the correct training. 

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