Gillick Competence

 

The rights of parents in relation to medical matters concerning their children are subject to the ruling of the House of Lords in the case Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL).

The case concerned a teenage child's right to consent to medical treatment without the parents' knowledge. Lord Fraser said that the degree of parental control varied according to the child's understanding and intelligence, and Lord Scarman further opined that parental rights only existed so long as they were needed to protect the property and person of the child. He said:

"As a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to enable him to understand fully what is proposed."

Subsequently developed case law held that 'Gilliick competence' related to the particular child and the particular treatment, and there have been cases where a 17-year-old has been found insufficiently competent to refuse medical treatment, while in other cases much younger children have been deemed sufficiently competent. In addition, where a child is 16 or 17 either parent or child can consent to treatment independently (though neither can override the other or exercise a veto). The court can, however, override the wishes of both where treatment is vital to the child's welfare.

Attempts by medical professionals to further clarify the law were specifically discouraged by the courts. It became a matter for the doctor to judge whether a child under 16 was 'Gillick competent'.

A further anomaly was provided by the Access to Health Records Act 1990, which allows a child under 16 deemed 'Gillick competent' by a doctor to veto the parent's access to medical information held by that doctor, even though the parent can consent to treatment which the child cannot veto.

The result is that a doctor, if s/he judges the child to be 'Gillick competent', can only disclose information to the parent with the child's consent, regardless of Parental Responsibility.

 

Updated 29-02-2000