Who is a Gillick competent child?

Gillick competency is essential to determine whether a child can give consent to medical treatment or not. Therefore, I will discuss here a ...

Gillick competent child

Gillick competency is essential to determine whether a child can give consent to medical treatment or not. Therefore, I will discuss here a case to explain a Gillick competent child. For example,

Ben is a 15-year-old child who needs a kidney transplant. He is likely to die within a year if this does not take place. The doctor told him that there is kidney avail now, but he is refusing to give consent to the operation. Sadly, he has already had the experience of a failed kidney transplant and does not want to go through the same level of suffering a second time.  He is not willing to lead his life on medication and absolutely realises that if he does not give consent he may die. Ben’s doctors believe he should have the transplant and do not consider he has the capacity to refuse.

The Hospital Trust, where Ben is being treated, seeks your advice.

Legal position: 

According to the issues of the case, the patient Ben is a Gillick competent child who can give consent to treatment. Apart from this will consider the following issues:

  1. Consent of Minor child
  2. Competency and Incompetency 
  3. Mental Capacity
  4. Human Tissue transplantation
  5. The Best interest issue

Firstly, the UK tort law says that a doctor can touch an adult and competent patient only when the patient gives written or oral consent to carry out the treatment. On the other hand, without the consent of a patient, it will be considered a tort.[Neill J in F v West Berkshire Health Authority (1990)]

In the consent issue, there are four key criteria such as (a) an adult with capacity (b) an adult with lack of capacity (c) a minor with capacity (d) and a minor with lack of capacity. In this case, the patient Ben is among the children who have the capacity.

Similarly, the brain and mind of the patient are working properly and he has given his consent during the material period. Otherwise, it would be a lack of capacity.[The MCA (2005), Section 2(1)]

Furthermore, UK law has used the 18th birthday of a person as the distinguishing line of being a child and adult.[Section 105 Children Act (1989)] 

In this case, the age of the patient Ben proves that he is a 15-year minor child and a minor child can give consent only when health professionals can identify that Ben is Gillick competent. 

The patient is a 15-year minor and he has all the five requirements of Gillick competency.[Section 1 of the Family Law (Reform) Act (1969)]

Therefore, he can give consent to his medical treatment. Besides, Ben has already experienced the kidney transplantation operation as well as he is aware of kidney failure operation thoroughly. 

For instance, the case of Gillick v West Norfolk Area Health Authority (1986).[Gillick v West Norfolk Area Health Authority [1986] 1 AC 112 (UKHL)] confirms that the competency is the stage of a person by which the medical authority justify the ability of a patient regarding the treatment. It also includes the purpose of the raised treatment and its nature as well as risks and side effects. 

The health authority should also explain the matter that is related to the successfulness and unsuccessfulness of the treatment. Then, the patient considers the aim of medical treatment and provide his or her own decision.

Besides that, he is aware of the pain of kidney transplantation as well he knows that if the transplantation does not take place, he will die. Therefore, it witnesses that he is mature enough and intelligent. On the other hand, if he did not understand the pain or the death then, it would be considered as a child lacking capacity. For example, the case of Re S (1993),[Re S (1993) 1 FLR 376] where a 15-year-old bone marrow child patient refused a blood transfusion. The court was not satisfied with her decision because she could not explain properly and which was considered as incompetency.

In this case, the child minor Ben understands the kidney transplantation operation because he has already come across this procedure.  Therefore, he has given his valid consent that kidney transplantation is expensive as well as painful too. As a result, he would rather die than face the same situation and pain of transplantation. After all, considering all these situations, he is competent.

The children aged 16 to 17 have a statutory right to provide consent to medical treatment.[Section 8(1) of the Family Law Reform Act (1969)]

Therefore, there is no chance of parental consent to override his refusal because the decision of the case of R (Axon) v Secretary of State for Health, Silver J has explained that the parent loses any right under the HRA (1989) while a child becomes Gillick competent. Overall, based on “the best interest” test the refusal of the patient Ben will be overridden. So, parental consent or the court’s consent will take place instead of his refusal. 

For example, the case a Re W (a Minor) (1992), who was a girl of sixteen and had been suffering from anorexia nervosa. The medical professional asked her for medical treatment during the material time, she refused to continue the treatment. But her decision could not meet the best interest requirements so, the court overrode her refusal and ordered for her treatment.[Re W (a Minor) (Medical Treatment) (1992) 4 All ER 62]

Likewise, patient Ben is a competent patient who refused to go-ahead for medical treatment. However, parental consent will be taken place considering the best interest issue. Therefore, the health professional will seek parental consent, because his parents have the right of giving proxy consent on his behalf. In this regard, the legal guardians could be as follows;

  • Father or mother of the child
  • Legally appointed deputy
  • Local carer of the child
  • A local authority in the emergency situation.

Secondly, the age of the patient Ben is 15 year so, the Mental Capacity Act (2005) does not apply to him. Since the MCA (2005) provides information that a child of 16 to 17 years old will be considered as a competent minor to give consent as well as under sixteen years old will be considered based on Gillick competency. Furthermore, the patient Mr Ben could not be considered as incompetent only because of his unwise decision. [Section 1(3) Mental Capacity Act (2005)]

Besides that, if the children are intelligent enough, and competence, and realize the treatment. This type of competency is known as “Gillick”. In other cases, parental consent can be considered for them and the legal guardians should provide consent on his or her behalf.[Section 8 of Children Act (1989)] Where the parents have the right of giving proxy consent.

According to the law, if a Gillick competent child refuses to give consent then, the health professional should adopt the best interest option for the patient. Moreover, if the court uses the best interest policy then the Human Rights Act (1998) will be applicable. So the court must ensure that the children's rights are not infringed during the interference. Because only the necessity of medical treatment is not enough. 

Furthermore, since the patient has refused to give consent so, the medical professional would rather rely on the consent from parents. As a 15-year-old boy, he has a statutory right to give consent to treatment, but it does not mean that he should refuse essential and lifesaving treatment that could help him from death. 

Moreover, if the parents do not give consent to carry on the operation then the Health Authority will adopt the interference of the court. Because the courts have the right to override the consent of both the competent child and the parents based on the best interest of the patient medical conditions.

Furthermore, under s 11 of the Children Act (1995), the court can override the decision of the Gillick competent child and continue the treatment. For example, the case of Re W (a minor) (medical treatment) (1992). Therefore, only the medical professionals and a court can override the consent of a patient based on best interest. 

Thirdly, as the health professionals have identified that the patient Ben is a Gillick competent child and he refused to continue operation so, the doctors should seek parental consent on his behalf. [Section 2 HTA (2004)] But in some situations, there is no need for seeking consent from the patient. [Part-1 and section 7, The Human Tissue Plantation Act (2004)] For example, in an emergency situation when the patient needs lifesaving support or operation. As it is mentioned earlier that it is unlawful to touch a person for operation without the consent of the person. Otherwise, it will be regarded as an assault. Similarly, organ transplantation from one person to another is will be the same.

Finally, the health professionals should rely on parental consent and if they give consent for medical treatment then they will continue the operation. In this regard, the court of appeal has shown the way of acting with the patients called Flake jacket and they are as follows; (a) the consent of the patient (b) the consent of another person who is authorized to consent on the patient's behalf (c) the defence of necessity.

Otherwise, the doctors will be committing a crime and tort. [Sideaway v Bethlem Royal Authority Trust and Dr O [2002] All ER 643 1.] In this case, On the other hand, if the parents of the patient Ben support Ben's decision and refuse to carry on the treatment then they will ask for the help of the court. For example, the case of F v F (2013),[F v F [2013] EWHC 2683 (Fam)]

where two children aged 11 and 15 and the eldest one was taking the vaccine. However, the parents objected and the court overrode the parents' decision and give consent to continue immunization vaccine.

Another case is the case of Re B (a Minor) (Wardship) (1981).[RE B (A MINOR) (WARDSHIP: MEDICAL TREATMENT): CA 1981]  In this case, a young girl who was a patient of Down’s syndrome. She suffered from an intestinal blockage. Medical authority suggested her that it is operable and curable. When the doctors asked for consent from her parents, they refused to give consent.  Held that the welfare of the child was the paramount consideration and the courts overrode the parent’s refusal to the operation.

On the other hand, it might be some exceptional situations when the court allows parental refusal against medical treatment. Nevertheless, it happens only in rare cases, such as the case of Re T (1997).[RE T (A MINOR) (WARDSHIP: MEDICAL TREATMENT): CA 24 OCT (1996)] In this case, an infant was suffering from liver defect. According to the doctors ‘suggestion, the infant will die if the liver operation does not take place. However, the parents of the baby disagree to go ahead of the operation because it would be expensive for them. The court allowed them considering the best interest issue.

Another case of best interest is the case of Re C (A Minor) (Medical Treatment) (1998).[Re C (A Minor) (Medical Treatment) (1998)] Where a young girl patient was suffering from spinal muscular atrophy. She required the assistance of ventilation frequently. According to the doctor’s opinion, this life-support will not be helpful for the patient but delay death. Therefore, the court made a decision to stop this treatment because it would not be in her best interests. 

Furthermore, section 2 of the MCA Act (2005), have provided the assessment methods for the medical professional. While doctors are assessing the mental capacity of a patient. They should try to encourage the patient and support to make the decision himself. Also, the doctors should provide enough information to the patient regarding the proposed surgical treatments. Otherwise, it will be regarded as clinical negligence.

In some cases, the patient may take a kind of decision that could be unwise. However, it does not mean the patient has lost his capacity. According to the law, a Gillick competent child has the right to give consent. But in many current laws, this right has been infringed which is illogical. 



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Money Gelt - Law news, insights and free legal advice!: Who is a Gillick competent child?
Who is a Gillick competent child?
Money Gelt - Law news, insights and free legal advice!
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