Understanding mental capacity
Understanding mental capacity

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Understanding mental capacity

1.3 Competence to give consent 

Children may be in a position to make some decisions relatively independently, but there may be a question about whether they have the mental capacity to make others. For example, children under 16 are not necessarily considered legally competent to give consent to (or refuse) medical treatment. However, the person administering the treatment must assess whether the child has sufficient maturity to understand what is being proposed, even if they are under 16. If it is considered that they do and that the treatment is in the child’s best interests, it may go ahead even if a person with parental responsibility does not agree. This is known as Gillick competency.

Victoria Gillick had four daughters. In January 1981 she wrote to her local health authority, West Norfolk and Wisbeach, asking them to confirm that her daughters would not be given any contraceptive advice under the age of 16 without her prior knowledge and consent. The health authority replied that it would be unusual to give this advice without involving a child's parents, but that ultimately the decision would rest with the medical practitioners involved and depend on their clinical judgement. There then commenced a protracted legal challenge initiated by Victoria Gillick. In 1984, her challenge was not accepted in the High Court, but later the Court of Appeal found in her favour. However, in 1985 the House of Lords reversed the Court of Appeal judgement (Scarman, 1985). In sum, it is now legal to decide whether a child is able to give consent to medical treatment on the basis of an assessment of the child's maturity and understanding of what is being proposed. This is known as an assessment of ‘Gillick competency’.

Young people aged 16–17 years are deemed to be legally competent unless formally assessed otherwise. However, they cannot refuse treatment that is considered to be in their best interests by either a person with parental responsibility or the courts. They are therefore not in the same position as adults aged 18 and over who can refuse treatment if competent to do so. 

Activity 2 Gillick competency

Timing: Allow about 25 minutes
  1. Read the NSPCC page about Gillick competency [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] . Note some of the principal aspects of the Gillick judgement.
  2. Then watch the video below from 1985 about the Gillick case. In the text box, note the key points about children’s decision making and the clinical judgement of doctors prescribing contraceptives to children under 16 without their parents’ consent.
Download this video clip.Video player: Gillick video
Skip transcript: Gillick video

Transcript: Gillick video

REPORTER
This afternoon what's being called the Gillick judgement was overturned. The law lords voted by three to two that in exceptional circumstances, a doctor can prescribe contraceptives to an underage girl without her parents' consent. One Tory MP called it a day of shame. Mrs. Gillick says she has lost and lost badly. But the lords' ruling may only have refuelled the whole argument about sex and underage girls.
Last December, Mrs. Victoria Gillick won a unanimous decision from three appeal court judges.
VICTORIA GILLICK
It is the best Christmas present that they could possibly have been for all families, millions and millions and millions of them.
REPORTER
They held that a doctor could not prescribe contraceptives to girls under the age of 16 without their parents' consent. This afternoon outside the House of Lords, it was all very different after Mrs. Gillick had heard her arguments rejected by three law lords in uncompromising terms. Lord Fraser disputed the view that an underage girl has no rights in such matters. "The degree of parental control actually exercised over a particular child in practise varies considerably according to her understanding and intelligence, and it would be unrealistic for the courts not to recognise it."
Lord Scarman cast doubts on claims about the absolute nature of parents' rights over an underage girl. "Parental rights are derived from parental duty and exists so long as they're needed for the protection of the person and property of the child."
Lord Bridge, the third judge reversing the appeal court decision, held, "It could not be contrary to public policy to prescribe contraception where it was the only means of avoiding a wholly undesirable pregnancy."
Lord Brandon, the first dissenting opinion, fully backed Mrs. Gillick's views. He believed that anyone who promoted or facilitated underage sex could be guilty of a criminal offence. "It cannot make any difference that the person who promotes, encourages, or facilitates the commission of such an act is a parent, a doctor, or social worker."
Lord Templeman, the other dissenting opinion, cautioned against giving doctors a general discretion to prescribe contraceptives merely because an underage girl might have sex. "Such a discretion would enable any girl to obtain contraception on request by threatening to sleep with a man."
Public reaction has reflected the deep division in the lords themselves. Agencies involved in sexual counselling welcomed the ruling.
DIANE MUNDAY
I think it's a great victory for both common sense and the law. It shows that the law lords are in touch with how ordinary people lead their lives and how people behave and what is needed. That's not to say that anybody condones underage sex or thinks that girls shouldn't talk to them mothers.
JOHN DAWSON
We think this is a very wide-ranging judgement that will give a clear framework that will allow doctors to help patients. If they are unable to get the girl's consent to involve the parents, then this will allow doctors to make a judgement as to whether they should prescribe contraceptives or not.
End transcript: Gillick video
Gillick video
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Comment

Even at the highest level of the law in the UK, the Law Lords, there were considerable differences of opinion on the ability of young people to make decisions for themselves. However, the view proposed by the Gillick judgement prevailed. It remains the case today that if a child is competent to make an informed decision, then in certain circumstances contraceptive advice may be provided without the knowledge or consent of their parents. This decision will be made on the basis of the perception and judgement of the professional involved about what is in the child's best interests and whether they are capable of making up their own minds. On balance, it was deemed unrealistic to impose fixed age limits on matters that can vary enormously depending upon the maturity of the child and their circumstances. 

In the next section you look at the kinds of decisions made by children and young people that may require some consideration of mental capacity.

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