Gillick competence and Fraser guidelines

Introduction

Gillick competency and Fraser guidelines help people who work with children to balance the need to listen to children's wishes with the responsibility to keep them safe.

When practitioners are trying to decide whether a child is mature enough to make decisions about things that affect them, they often talk about whether the child is 'Gillick competent' or whether they meet the 'Fraser guidelines'.

Although the two terms are frequently used together and originate from the same legal case, there are distinct differences between them.

Both Gillick competency and Fraser guidelines refer to a legal case from the 1980s which looked at whether doctors should be able to give contraceptive advice or treatment to young people under 16-years-old without parental consent.

Applying Gillick competence and Fraser guidelines

The Fraser guidelines still apply to advice and treatment relating to contraception and sexual health. But Gillick competency is often used in a wider context to help assess whether a child has the maturity to make their own decisions and to understand the implications of those decisions.

You should always encourage a child to tell their parents or carers about the decisions they are making. If they don't want to do this, you should explore why and, if appropriate, discuss ways you could help them inform their parents or carers. For example, you could talk to the young person's parents or carers on their behalf.

If the young person still wants to go ahead without their parents' or carers' knowledge or consent, you should consider the Gillick and Fraser guidelines. The following information looks at how this can be applied in practice.

Gillick competence

Gillick competency applies mainly to medical advice but it is also used by practitioners in other settings. For example, if a child or young person:

would like to have therapeutic support but doesn't want their parents or carers to know about it
is seeking confidential support for substance misuse
has strong wishes about their future living arrangements which may conflict with their parents' or carers' views.

Medical professionals need to consider Gillick competency if a young person under the age of 16 wishes to receive treatment without their parents' or carers' consent or, in some cases, knowledge.

If the young person has informed their parents of the treatment they wish to receive but their parents do not agree with their decision, treatment can still proceed if the child has been assessed as Gillick competent.

There is specific guidance for medical professionals on using Gillick competence - see case history and legislation.

Assessing Gillick competence

There is no set of defined questions to assess Gillick competency. Professionals need to consider several things when assessing a child's capacity to consent, including:

the child's age, maturity and mental capacity
their understanding of the issue and what it involves - including advantages, disadvantages and potential long-term impact
their understanding of the risks, implications and consequences that may arise from their decision
how well they understand any advice or information they have been given
their understanding of any alternative options, if available
their ability to explain a rationale around their reasoning and decision making.

Remember that consent is not valid if a young person is being pressured or influenced by someone else.

Children's capacity to consent may be affected by different factors, for example stress, mental health conditions and the complexities of the decision they are making. The same child may be considered Gillick competent to make one decision but not competent to make a different decision.

If you don't think a child is Gillick competent or there are inconsistencies in their understanding, you should seek consent from their parents or carers before proceeding.

In complex medical cases, such as those involving disagreements about treatment, you may wish to seek the opinion of a colleague about a child’s capacity to consent (Care Quality Commission, 2019).

Young people also have the right to seek a second opinion from another medical professional (General Medical Council, 2020).

Refusal of medical treatment

Gillick competency can be used when young people wish to refuse medical treatment.

However, if a young person refuses treatment which may lead to their death or severe permanent harm, their decision can be overruled. More information about this is available in the guidance for medical professionals in each UK nation - see case history and legislation.

Child protection concerns

The child's safety and wellbeing is paramount.

When you are assessing Gillick competency if you have any concerns about the safety of the young person you should check whether previous child protection concerns have been raised, and explore any factors that could put them at risk of abuse.

You must always share child protection concerns with the relevant agencies, even if this goes against a child's wishes.

> Find out more about recognising and responding to abuse

Fraser guidelines

The Fraser guidelines apply specifically to advice and treatment about contraception and sexual health. They may be used by a range of healthcare professionals working with under 16-year-olds, including doctors and nurse practitioners.

Following a legal ruling in 2006, Fraser guidelines can also be applied to advice and treatment for sexually transmitted infections and the termination of pregnancy (Axon v The Secretary of State for Health, 2006).

Using the Fraser guidelines

Practitioners using the Fraser guidelines should be satisfied of the following:

the young person cannot be persuaded to inform their parents or carers that they are seeking this advice or treatment (or to allow the practitioner to inform their parents or carers).
the young person understands the advice being given.
the young person's physical or mental health or both are likely to suffer unless they receive the advice or treatment.
it is in the young person's best interests to receive the advice, treatment or both without their parents' or carers' consent.
the young person is very likely to continue having sex with or without contraceptive treatment.

(Gillick v West Norfolk, 1985)

Child protection concerns

When using Fraser guidelines for issues relating to sexual health, you should always consider any potential child protection concerns:

Underage sexual activity is a possible indicator of child sexual exploitation and children who have been groomed may not realise they are being abused.
Sexual activity with a child under 13 should always result in a child protection referral.
If a young person presents repeatedly about sexually transmitted infections or the termination of pregnancy this may be an indicator of child sexual abuse or exploitation.

You should always consider any previous concerns that may have been raised about the young person and explore whether there are any factors that may present a risk to their safety and wellbeing.

You must always share child protection concerns with the relevant agencies, even if a child or young person asks you not to.

> Find out more about recognising and responding to abuse

Case history, legislation and guidance

Gillick v West Norfolk and Wisbech Area Health Authority 1986

In 1982 Victoria Gillick took her local health authority (West Norfolk and Wisbech Area Health Authority) and the Department of Health and Social Security to court in an attempt to stop doctors from giving contraceptive advice or treatment to under 16-year-olds without parental consent.

The case went to the High Court in 1984 where Mr Justice Woolf dismissed Mrs Gillick's claims. The Court of Appeal reversed this decision, but in 1985 it went to the House of Lords and the Law Lords (Lord Scarman, Lord Fraser and Lord Bridge) ruled in favour of the original judgment delivered by Mr Justice Woolf:

"…whether or not a child is capable of giving the necessary consent will depend on the child's maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent" (Gillick v West Norfolk, 1984).

What are the Fraser guidelines?

The Fraser guidelines refer to the guidelines set out by Lord Fraser in his judgment of the Gillick case in the House of Lords (Gillick v West Norfolk, 1985), which apply specifically to contraceptive advice.

Lord Fraser stated that a doctor should always encourage a girl aged under 16 to inform her parents or carers that she is seeking contraceptive advice (or allow the doctor to inform the parents or carers on her behalf). But if she cannot be persuaded to do so they can proceed to give contraceptive advice and treatment as long as certain conditions are met. This includes making sure it’s in the girl's best interests for advice to be given and that she understands the advice.

> Find out more about using the Fraser guidelines

What is Gillick competence?

Lord Scarman's comments in his judgment of the Gillick case in the House of Lords (Gillick v West Norfolk, 1985) are often referred to as the test of "Gillick competency". He said:

"…it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved."

He also commented more generally on parents' versus children's rights:

"parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision."

> Find out more about assessing Gillick competency

Legislation and guidance

Gillick v West Norfolk and Wisbech Area Health Authority went to the House of Lords and is often used as a legal precedent across the UK.

In Scotland, the Age of Legal Capacity (Scotland) Act 1991 sets out when children have the legal capacity to make decisions. Section 2 sets out when a child under the age of 16 can consent to medical treatment or procedures.

Medical guidance

In England, the Department of Health and Social Care provides guidance for medical professionals on the legal framework they need to consider when obtaining valid consent to examination, treatment or care (Department of Health and Social Care, 2009).

In Northern Ireland the Department of Health provides consent guides for healthcare professionals (Department of Health, 2003).

In Scotland the NHS has provided a good practice guide on consent for health professionals (PDF) (Scottish Executive Health Department, 2006).

References and resources

Axon v The Secretary of State for Health (The Family Planning Association: intervening) (2006) EWHC 37.

Care Quality Commission (2019). Brief guide: capacity and competence to consent in under 18s (PDF). Care Quality Commission.

Department of Health (2003). Consent guides for healthcare professionals. [Accessed 02/02/2020].

Department of Health and Social Care (2009) Reference guide to consent for examination or treatment (second edition). London: Department of Health and Social Care.

Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1984] Q.B. 581. As cited in Children’s Legal Centre (1985) Landmark decision for children’s rights. Childright, 22: 11-18.

Gillick v West Norfolk & Wisbech Area Health Authority, UKHL 7 (17 October 1985) Available via (BAILII) in The law reports (appeal cases) [1986] AC 112.

Scottish Executive Health Department (2006). A good practice guide on consent for health professionals in NHS Scotland (PDF). Edinburgh: Scottish Executive

Childline

If a child or young person needs confidential help and advice direct them to Childline. Calls to 0800 1111 are free and children can also contact Childline online or read about children’s rights on the Childline website.

You can also download or order Childline posters and wallet cards.

Elearning

Our online and face-to-face training courses can help develop your understanding of how to protect children from abuse and safely recruit staff and volunteers to work with children:

Applying Gillick competence and Fraser guidelines