'Gillick competence' refers to a young person under 16 with capacity to make any relevant decision.
Children who are 16 years old and over can be expected to have capacity to consent to treatment. Children who are younger than this may be mature enough to decide for themselves and not want their parents involved, which will require you to consider whether they are Gillick competent.
You can also read our guides on parental responsibility and consent and young patients.
The Gillick case
The term 'Gillick competence' comes from the Gillick vs West Norfolk and Wisbech Area Health Authority case.
The case stemmed from a circular issued by the DHSS (then the Department of Health and Social Security) aimed at improving contraceptive services for young people. The advice for doctors was that girls under 16 could be provided with contraception without a parent necessarily being involved.
Mrs Victoria Gillick wanted assurances that her daughters would not be provided with contraceptives or abortion advice, without her prior knowledge and consent, until they were 16. When that was refused, Mrs Gillick took her case to court. Her counsel challenged the assumption that, under common law, young people under 16 could be treated without the agreement of a parent. They wanted the DHSS advice to be declared unlawful.
The case went to three courts. At first, Mrs Gillick was unsuccessful, so she took her case to the Court of Appeal, which found in her favour. The DHSS then appealed to the House of Lords where it was held that the original advice circulated by DHSS was not unlawful. Under certain circumstances, a child under 16 can give valid consent to medical treatment, including contraception or abortion, without parental knowledge or authority.
The case was originally about contraception, but the principles of Gillick competence extend to other forms of treatment.
What did the Gillick case say about competence?
A child has sufficient competence if they're deemed to have the maturity and understanding to be capable of making decisions about their own health and medical treatment. This can relate to children under 16 and is decided on an individual basis.
Lord Scarman put it like this in the judgement: "…the parental right yields to the child's right to make his [sic] own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision."
Here's what the GMC says about assessing competence in young people under 16 in its current guidance for doctors (0-18 years: guidance for doctors).
- The capacity to consent depends on the young person's ability and maturity to understand and weigh up the options, not on their age.
- You must provide a young person with all the relevant information and discuss it with them thoroughly. They decide whether they can understand and retain what you are telling them about the nature, purpose and possible consequences of any proposed treatment, and whether they can weigh up the information to make a decision.
- It's important to assess maturity and understanding on a case-by-case basis. A young person who has the ability and maturity to understand and consent to straightforward, relatively risk-free treatment may still lack the competence for more complex treatment with high-risk outcomes.
- A young person's capacity to consent may be affected by their physical and emotional development, as well as changes in their health and treatment.
Contraception and abortion
The Gillick case considered contraception a specific issue because of the sensitivity around the physical and emotional consequences of sex and contraception.
In his judgement, Lord Fraser listed five aspects a doctor should consider before giving contraceptive advice to a young person under 16 without parental agreement. These are reflected in the GMC's 0-18 years: guidance for doctors.
Paragraph 63 states that you can provide contraceptive, abortion and STI advice and treatment without parental knowledge or consent to a young person under 16 if:
- they understand the advice and implications of treatment
- they're likely to have sex with or without treatment
- they're likely to suffer physically or mentally unless they receive the treatment
- it's in their best interests to receive advice and treatment without parental consent.
For more, read our guide to prescribing contraception to under-16s.
Read our other guides on consent and young patients and parental responsibility.
Contact our medico-legal advisers for further help or advice.
This page was correct at publication on 15/08/2022. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.