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Competency

Even though the young person is under the age of 18 they may still be deemed competent to make decisions that affect their welfare. This page considers how we determine competency.

You must decide whether a young person is able to understand the nature, purpose and possible consequences of whatever action you propose to take. But you must also assess whether they can understand the consequences of you not taking the proposed action.

For you to consider them capable, the young person must be able to understand, use and weigh the information, and communicate their decision to others. The ability to consent depends more upon ability to understand and weigh up options than on age. It is important to assess maturity and understanding on an individual basis, with regard to the complexity and importance of the specific decision to be made.

A young person who has the capacity to consent to simple things may not have the capacity to consent to something more complex. Therefore this capacity must be assessed on every occasion - it cannot be assumed that just because a young person has the capacity to consent to one thing they have capacity in relation to everything.

Gillick Competence

Gillick competence relates specifically to medical examination - however it does not relate to contraceptive advice as this is covered by further guidelines (known as Fraser Competence). Gillick competence and Fraser competence are often used interchangeably. They are however two distinct areas of competence (see below for further information).

Some children under the age of 16 can be deemed Gillick competent and are therefore able to consent to medical examination and treatment without recourse to those with parental responsibility for them. To demonstrate Gillick competence the child must show that they have sufficient maturity and intelligence to understand and appraise what is being proposed, weigh up the risks and look at alternatives.

Consideration of whether a child is Gillick competent should not be a last minute decision, but one made as part of case planning with the agreement of those involved in the care of the child. If considered Gillick competent then the child can also decide whether their parents are informed of any appointments, but again advice must be sought before agreeing to the child's request.

Gillick competence is different to Fraser competence, with the latter specific to contraceptive advice and a child's understanding. The diagram to the right sets out how the different tests should be seen.

 

Gillick competence test

Gillick competence relates to a legal case dating back to 1982 where Mrs. Victoria Gillick to West Norfolk and Wisbech Area Health Authority and the government to court to stop doctors giving contraceptive advice or treatment to under 16 year olds without parental consent. The case went through a number of legal processes, culminating in the House of Lords ruling in favour of the original judgement which stated:

"...whether or not a child is capable of giving the necessary consent will depend on the child's maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent."

When delivering their ruling in the House of Lords, the following test was set out:

"...it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved."

This has now become known as the test for Gillick competence, with practitioners needing to be satisfied that the requirements of understanding and maturity are met. Although the initial case was in relation to contraceptive advice and treatment, the Gillick test has been expanded to cover all medical treatment, whilst the provision of contraceptive advice and treatment without parental consent is covered by a further set of guidelines.

 

Fraser competence test

 

The Fraser guidelines set out 5 additional questions or tests that need to be applied when contraceptive advice and treatment is being considered with a young person under the age of 16. The guidance is as follows:

"...a doctor could proceed to give advice and treatment provided he is satisfied in the following criteria:

1) that the girl (although under the age of 16 years of age) will understand his advice;

2) that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice;

3) that she is very likely to continue having sexual intercourse with or without contraceptive treatment;

4) that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;

5) that her best interests require him to give her contraceptive advice, treatment or both without the parental consent."

The degree of [Fraser] competence of a young person needs to be assessed on an individual basis and fully documented. This will vary with age, maturity and with the implications of the treatment or advice they are seeking. Young people under sixteen who are Fraser competent can consent to treatment. A child or young person can say they wish to withhold consent to their information being shared with another agency. A professional, however, may override this if they are of the firm view that not to do so may jeopardise the safety and welfare of the child or young person or that of another vulnerable person.