Gillick Competence: Caution required
An interesting case was heard before the courts earlier this year, which highlights how Gillick Competence should only be applied when appropriate to do so.
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Capacity to engage in sexual relations
Capacity to engage in sexual relations is an area that is not often discussed in the realm of mental capacity. In this blog we highlight the key case law that guides the assessment of capacity to engage in sexual relations alongside two separate but interrelated forms of capacity: Contact Capacity and Contraception Capacity.
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Supported decision-making in practice
Within the realm of Mental Capacity, when we talk about ‘supported decision-making’, this refers to any form of assistance given within the decision-making process. This may include the provision of relevant information, or even providing education around a topic to help someone make a choice.
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Case study: What do we mean by ‘decision specific’?
We all make many thousands of micro-decisions on a daily basis, from the way we make a cup of tea to what we watch on TV. However, when it comes to decision making, the Mental Capacity Act (2005) is ‘decision specific’. This means that it relates to a specific decision made at a specific time. It does not refer to decision-making more broadly. This raises the question: how specific do we need to be when we assess capacity?
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Mental capacity: monitoring and consent
Surveillance has become a common part of everyday life. From CCTV and alarms to remote monitoring cameras and GPS tracking on mobile phones, there are so many different ways of tracking our movements and the things that we do.
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Mental Capacity and informed consent
Consent refers to a person’s voluntary assent to a particular action, decision or interaction. There are many different types of consent. These include:
- Implied consent – where no verbal or written consent has been given, but an action by the individual in question suggests their agreement. For example, if a patient offers their arm to have their blood pressure taken.
- Informed consent – requires an explicit understanding of all the relevant facts, including risks and available alternatives. Usually, information is provided in order to help the person to understand what is proposed and why. This type of consent is often associated with medical procedures in healthcare settings; it is also often formalised with a physical signature on a consent form.
Mental capacity in practice: Consent to be photographed
In everyday healthcare practice we are directed by legislation and best practice guidance to gain informed consent for medical interventions, care plans and, broadly speaking, any professional interaction. This includes consent to be photographed, which in years gone by would have included use on medication charts (MARS sheets), care plans and care provider notice boards. In more recent years, it also includes the use of photos shared on social media, email and messaging services such as WhatsApp.
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Clients who are unwilling or unable to engage
There are occasions where an individual may be unwilling or unable to engage with a mental capacity assessment, from which there are many possible reasons why this may occur. For example, there may be an issue with the specific context of the situation, the individual’s health conditions, the professional’s approach to the test, or even the adaptations that have been made to support.
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Using LEGO to support capacity and enable informed consent
LEGO has launched a new kit designed to help ease children’s anxieties around using an MRI scanner. This fantastic toy helps bridge the gap in understanding around what is going to happen, putting the process of an MRI scan in terms that a child can understand, facilitating their comprehension and thereby reducing anxiety around the whole process.
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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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