10 FAQs on Gillick Competence ( Fraser Competence / Guidelines)


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1) First of all which is it?

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 folk and some doctors have tried to make this point (see below).

2) What is it all about?

I keep hearing it bandied about but don’t think folk bandying it about even know what it’s really 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 & 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.

3) Who were Gillick & 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 some of whom are pictured above. 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 judges of 5 in the House of Lords who made the final judgement. 9 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).

4) 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 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 a number of ‘laws’ which apply in this area however

The Family Law Reform Act 1969

( reduced the age of majority from 21 to 18 – before that your parents ad to consent for you to any operation until your 21st birthday – it also allowed 18 yr olds to vote)

Children Act 1989

This concerns 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

5) Why did it concern contraception?

Doctors and lawyers were certainly not looking to explore this area n this way. I 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 where Mrs. Gillick lived had put out a circular advising it’s staff that they could provide under 16s with contraception not necessarily requiring a rental consent.

It is unclear how Mrs Gillck came by this information as her children were too young to be exposed to it, and she herself was a devout Catholic who had 10 children so is presumably unlikely to have come across it at a family planning centre.
Interestingly, we never hear of Mr Gilick apart from one judge expressing that e 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 he event took around 4 years. It was also convenient in that there was something specific t challenge – the written guidance circular.
The issue of contraception was a real one where these dilemmas existed and not providing treatment was perceived to risk unwanted child pregnancy, abortions and other problems.

How did Mrs Gillick set about starting this whole process?6)

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 2 fronts. The first was that doors 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 nod authority over their children at that age. This part was pursued.

7) 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 md-80s was a very different time to now. Many parents of children that age were very supportive of Mrs Gillick – my own and many f 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 & rapid legal decisions are well-reasoned, but having no time pressure makes the process easier.)

8) 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. 3 judges sit in the Court of Appeal, and all 3 supported Mrs Gillick. At the final hurdle following appeal by the Health Authority, the case was considered by 5 judges. 2 supported her and 3 were against. So of 9 judges, 5 were supporting her and 4 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? A rhetorical question and one FAQ I’m not sure I can answer!

9) 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 hat 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.

10) 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’.

Decision can be read here

http://www.bailii.org/uk/cases/UKHL/1985/7.html

Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7 (17 October 1985)
URL: http://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!

11) 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 Gilick 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.

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