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Children’s consent to medical treatment or contraceptive advice is the focus of this CQC briefing. Dr Devin Gray explains how inspectors assess the way that GP practices seek consent to care and treatment, with regard to Gillick competence and the Fraser guidelines.
After completing this module the general practice nurse should be better able to:
Dr Devin Gray
GP registrar and National Medical Director’s Clinical Fellow, currently seconded to the CQC
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Care Quality Commission inspectors use five key questions and key lines of enquiry when assessing GP practices.
Obtaining consent when treating a child falls under the question of whether services are effective, and key line of enquiry E6. This asks: `Is people’s consent to care and treatment always sought in line with legislation and guidance?’
Obtaining consent from children
When we obtain consent from children to medical treatment, ‘Gillick competence’ and ‘Fraser guidelines’ are used in different circumstances. The terms are frequently used interchangeably1 despite there being a clear distinction between them, which needs to be understood by all health professionals working with children and young people. Gillick competence is concerned with determining a child’s capacity to consent. Fraser guidelines, on the other hand, are used specifically to decide if a child can consent to contraceptive or sexual health advice and treatment. A CQC inspection team would expect healthcare professionals to demonstrate a clear understanding of both Gillick competence and Fraser guidelines in order to consent children and young people, as well as safeguard them from exploitation and harm.
Defining consent, capacity and competence
Consent to treatment can be defined as the principle that a person must give their permission before they receive any type of medical treatment or examination. For consent to be valid, it must be voluntary and informed, and the person consenting must have the capacity to make the decision.2
An assessment of a person’s capacity must be based on their ability to make a specific decision at a certain time, and not their ability to make decisions in general. In order to have capacity, a person must be able to:3
A person who has the capacity to make a decision about a specific treatment is said to be competent to consent to that treatment. In UK law, an 18 year old has as much autonomy as any adult when it comes to healthcare matters.2 However, the rights of those under 18 to give consent are more restricted. A child’s age alone is unreliable in predicting their competence to make medical decisions, so how can we judge their ability, particularly those under 16, to consent?
Under 16s: Gillick competence
For children under 16, the Gillick test is used to determine their ability to consent. The name originates from Victoria Gillick, a mother who challenged Department of Health guidance that enabled doctors to provide contraceptive advice and treatment to girls under 16 without their parents’ knowledge. In 1983 the judgment from this case set out criteria for establishing whether a child has the capacity to provide consent to treatment.4 The court decided that children under 16 can consent if they have sufficient understanding and intelligence to fully understand what is involved in a proposed treatment. This includes the treatment’s purpose, nature, likely effects and risks, chances of success and the availability of alternatives.
These criteria were later approved in the House of Lords and became widely known as the Gillick test. If a child under 16 passes the Gillick test, they are so-called Gillick competent to consent to medical treatment, interventions, research, and even organ donation. However, as with adults, this consent is only valid if given voluntarily, and not subject to undue influence by anyone else, such as a parent, carer or sexual partner.2
If we deem a child under 16 as not being capable of giving consent themselves, we need the consent of a person with parental responsibility (or sometimes the courts) in order to proceed with treatment.
It is important to remember that the understanding required for different treatments can vary significantly. A child may have the capacity to consent to some interventions but not to others. Capacity can fluctuate in some circumstances, including some mental health conditions. Therefore each individual decision requires Gillick competence assessment.
The Fraser guidelines5 are more specific as they relate only to contraception and sexual health. Lord Fraser was one of the Lords responsible for the Gillick judgment. He addressed the particular issue of providing contraceptive advice and treatment to those under 16 without their parents’ knowledge. The House of Lords concluded that a doctor can give advice in the following situations:
1. The young person has sufficient maturity and intelligence to understand the nature and implications of the proposed treatment
2. The young person cannot be persuaded to tell her parents or to allow her doctor to tell them
3. The young person is very likely to begin or continue having sexual intercourse with or without contraceptive treatment
4. His/her physical or mental health is likely to suffer unless he/she receives the advice or treatment
5. The advice or treatment is in the young person’s best interests.
As healthcare professionals we should encourage the young person to inform his or her parent(s) or allow us to do so. If they cannot be persuaded, advice and treatment should still be given. If any of the above statements are not true, however, or we believe that the child is under undue influence or is being exploited, we would have grounds to break confidentiality. That said each case must be considered on an individual basis.
The Fraser guidelines were initially only about contraceptive advice and treatment, but a 2006 case made clear that these also apply to decisions about treatment for sexually transmitted infections and termination of pregnancy.6
Although there is no lower age limit it would rarely be appropriate for a person under the age of 13 years to consent to any treatment without a parent’s involvement. When it comes to sexual health, those under 13 are unable to give legal consent to any sexual activity. We would therefore have to act on any information that they are sexually active or at risk of sexual exploitation.
16-17 year olds
UK law3 states that young people aged 16 or 17, like adults, are presumed to be capable of consenting to their medical treatment. However, unlike adults, the refusal of a competent person aged 16 to 17 to medical treatment can in certain circumstances be overridden by a parent (or someone with parental responsibility) or a court. Such circumstances include if refusal would likely lead to death, severe permanent injury or irreversible mental or physical harm. This is because we have an overriding duty to act in the best interests of a child.7
Gillick competence is the core principle we use to judge capacity in children. Fraser guidelines are used specifically for young people requesting contraceptive or sexual health advice and treatment. Where a child under the age of 16 is not Gillick-competent and therefore lacks the capacity to consent, consent can be given on their behalf by someone with parental responsibility or by the court. However, the child’s best interests must still be paramount7 and he or she should be as involved as possible in the decision-making process.
1. Wheeler R (2006) Gillick or Fraser? A plea for consistency over competence in children. BMJ 332(7545): 807
2. Department of Health (2009) Reference guide to consent for examination or treatment. Second edition. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/138296/dh_103653__1_.pdf
3. Mental Capacity Act 2005
4. Gillick v West Norfolk & Wisbech AHA & DHSS  3 WLR (QBD)
5. British Medical Association. Medical ethics today. 2nd ed. London: BMJ Publishing Group, 2004:230-1
6. Axon, R (on the application of) v Secretary of State for Health  EWHC 37 (Admin)
7. Children Act 1989, London: The Stationery Office.