Gillick Competence

The words are always thrown around when a teenager refuses treatment – but how much do you actually know about the Gillick case?

First of all which is it – Fraser or Gillick?

It is absolutely Gillick Competence – there are Fraser Guidelines with respect to Gillick Competence but there’s really no such thing as Fraser Competence – whatever Mrs Gillick thinks or wishes to happen, the legal people and some doctors have tried to make this point (see below).

What is it all about?

It’s about whether some children who are particularly mature but under 16 should be able to give consent to doctors themselves for treatment without their parents needing consent or even being involved. It didn’t concern itself with children who refuse to consent – that came later.

Although the case itself involved contraceptive advice and was quite emotionally charged, it actually applied to all aspects of child age of medical consent equally. While it concerned medical advice it also involved family law and medical law.

Who were Gillick and Fraser then?

Mrs Gillick was a lady of Catholic faith with 5 daughters when the case originally started back in 1982. Later she had a total of 10 children. All of her daughters were well below the age where their possibly giving consent themselves was likely to be an issue – one was a newborn.

Fraser was one of the five judges of in the UK House of Lords who made the final judgement. Nine judges altogether were involved, but it was his setting out of these guidelines in his decision that was adopted.

Lord Scarman (famous for other cases too) also wrote similar guidelines but added a further condition which was not formally adopted.

Gillick competence is the law, right?

The decision in the case of Gillick is not written in a specific law (Statute) but is part of what’s called the UK Common Law – a decision made on a particular issue taken in this case all the way to the House of Lords which effectively sets a precedent. That’s where the same question comes up again, where no area of the law elsewhere has changed, this decision will be the basis for the new decision.

There are other relevant UK laws which apply in this area:

The Family Law Reform Act 1969

(reduced the age of majority from 21 to 18 – before that, parents had to consent their children for any operation until their 21st birthday – it also allowed 18 year olds to vote.

Children Act 1989

This concerns a whole raft of child issues but many of the areas where local authorities alter guardianship of children or mandate certain things happen for the child.

Although this was a UK case, the case has been approved in courts in Australia, New Zealand and Canada.

Why did it concern contraception?

Doctors and lawyers were certainly not looking to explore this area in this way. It was a time, however, when control of pregnancy was an increasing issue and abortion statistics showed this was becoming an issue.

The whole case started because the Local Health Authority in Cambridgeshire (UK) where Mrs. Gillick lived had put out a circular advising its staff that they could provide under 16s with contraception not necessarily requiring parental consent.

It is unclear how Mrs Gillick came by this information as her children were too young to be exposed to it, and she herself was a devout Catholic who had ten children, so is presumably unlikely to have come across it at a family planning centre.

Interestingly, we never hear of Mr Gillick apart from one judge expressing that he assumed that Mr Gillick was in agreement with his wife’s position.

There were many advantages to this however – no time pressure. There was no real child requiring a rapid decision to enable them to have treatment. The whole legal process in the event took around four years. It was also convenient in that there was something specific to challenge – the written guidance circular.

The issue of contraception was a real one where these dilemmas existed, and not providing treatment was a perceived to risk unwanted child pregnancy, abortion and other problems.

How did Mrs Gillick set about starting this whole process?

Mrs Gillick wrote to the Health Authority seeking an assurance that no such advice would be provided to her own children without her involvement. The Health Authority refused to give such an assurance.

She then brought a case against the Local Health Authority challenging their position on two fronts. The first was that doctors providing contraception to these girls were partly guilty of rape since by providing contraception they were condoning it and it was legally rape because the girl was under 16. This part was rapidly thrown out.

Secondly she claimed that parents had complete responsibility and authority over their children at that age. This part was pursued.

We would always have reached this position at some stage wouldn’t we?

Possibly, but not necessarily. It’s very easy to think it all looks obvious in retrospect – it so wasn’t. The furore at the time was huge, and the mid-80s was a very different time to now. Many parents of children that age were very supportive of Mrs Gillick – my own and many of my friends’ parents too.

If a particular case had led to examination and exploration of the law on this issue, the pressure to make timely decisions would not have allowed the time given here to make reasoned decisions. (Naturally even urgent and rapid legal decisions are well-reasoned, but having no time pressure makes the process easier.)

The judge did not support Mrs Gillick did he?

It seems strange now, but actually more judges supported Mrs Gillick than were against her. Our legal system is a bit odd in that one judge alone makes the initial decision – in this case against Mrs Gillick. Three judges sit in the Court of Appeal, and all three supported Mrs Gillick.

At the final hurdle following appeal by the Health Authority, the case was considered by five judges. two supported her and three were against. So of nine judges, five were supporting her and four were against. It is easy to see why there are always an odd number of judges at each level! It is also notable that the burden of decision is spread more in number as the level of appeal increases.

Wouldn’t things have been different if the judges were spread differently?

What was the decision in a nutshell?

Essentially that children were recognised as maturing at different rates such that they would reach ‘genuine’ competence to make decisions at different ages. Until this point they were ‘pre-competent’ rather than ‘incompetent’ (the preferred legal term).

It was envisaged that a few children would be so demonstrably mature that they could demonstrate their abilities by looking at Lord Fraser’s guidelines. It was also felt that the number of children it would apply to would be very much a minority.

This hasn’t been the case. Many healthcare professionals seem to start from a position of assuming that young people are competent (often resulting from a ‘mature’ appearance rather than pure decision-making ability). Certainly the numbers are not few.

What were Lord Fraser’s guidelines?

The Fraser guidelines refer to the guidelines set out by Lord Fraser in his judgement of the Gillick case in the House of Lords (1985), which apply specifically to contraceptive advice:

“…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.

Lord Scarman added that the child had also to understand what was involved. This in addition to meeting Lord Fraser’s guidelines was said to be ‘Gillick Competence’.

The decision can be read here – https://www.bailii.org/uk/cases/UKHL/1985/7.html

Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7 (17 October 1985),  https://www.bailii.org/uk/cases/UKHL/1985/7.html, Cite as: [1986] AC 112, [1985] UKHL 7, [1986] 1 FLR 229

Always at least one bonus question!

What did Mrs Gillick do after this?

Raise a family certainly. There have been rumours over the years that Mrs Gillick would strongly like her name to be removed from this concept. While sympathetic with Mrs Gillick particularly as her name is attached to something she fought to stop, we have her to thank that this issue was raised and debated and considered fully. Without her, the issue may have evolved very differently.

Over the years Mrs Gillick has also campaigned on anti-abortion and has stated that the number of abortions local to her in 12 years would have filled the whole nursery school. She also campaigns on local issues.

The story of this case is as interesting as the result.