“It is up to a doctor to decide whether a child has the maturity and intelligence to fully understand the nature of the treatment, the options, the risks involved and the benefits”
Victoria Gillick below and left with seven of her 10 children in 1983.
absence of any clear test is likely to be somewhat subjective. However, this competence is deemed also to be ‘situation dependent’ – that is, it applies only to the treatment in question. Thus, a child may be deemed Gillick competent to understand one treatment, but not another. This House of Lords ruling that gives the competent child the right to decide about their medical treatment has also been adopted in various Commonwealth countries and is more formally encoded in the Age of Legal Capacity (Scotland) Act, 1991.
WHICH TERM TO USE? There has been much confusion regarding the terminology used in this area. In the 1990s there was a commonly held belief that Mrs Gillick, who had lost the appeal, objected to her name being attached to the concept of adolescent competence. As such, an alternative term ‘Fraser competence’ was introduced and widely recommended. This referred to the guidelines proposed by Lord Fraser in the same 1985 House of Lords judgement that defined Gillick competence. Unlike Lord Scarman’s ruling, these guidelines were very specifically concerned with contraceptive advice and treatment but do not have any general application; thus, the term ‘Fraser competence’ should be avoided as it is not, and never has been, a synonym for Gillick competence. But what of Mrs Gillick’s feelings on the matter? In 2006, the author of a BMJ editorial took the entirely reasonable step of writing to ask her if she objected. Mrs Gillick replied saying she “has never suggested to anyone, publicly or
privately, that [she] disliked being associated with the term ‘Gillick competent’.” Thus, Gillick competence is not only the correct but also the respectful term to use.
SOURCES • Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1984] Q.B. 581. • Gillick v West Norfolk & Wisbech Area Health Authority [1985], UKHL. • Wheeler R. BMJ 2006; 332: 807. • Hayhoe B. InnovAIT 2008; 1: 764. •
www.nspcc.org.uk (Accessed Feb 8, 2018).
CONCLUSION When treating children and young people, clinicians have an overriding duty to act at all times in their best interests. The Gillick rulings have served to clarify what can and cannot be done in this area, but they have also brought into focus the importance of involving competent children in medical decisions that will affect them. Indeed, the NSPCC reminds us that all professionals working with children must “balance children’s rights and wishes with our responsibility to keep children safe from harm”. And what of Victoria Gillick today? Now in her
seventies, she remains active. A mother of 10, and now with more than 40 grandchildren, she has continued to work and campaign against under-age sex and abortion. In 2002, she won an apology and damages in a libel case against a teenage sexual health advice charity. She claimed they had alleged that her challenge against the legality of contraception guidelines was one of the reasons for a rise in teenage pregnancies during the 1980s. More recently, she has spoken out on matters of immigration and is supportive of her husband, a former UKIP County Councillor.
Allan Gaw is a writer and educator in Glasgow MDDUS INSIGHT / 13
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