In this article I will be looking at what Gillick competence is as well as what determines whether a person has Gillick competence and capacity. Furthermore I will also look an example of a case where Gillick competence has been used.
Firstly Gillick competence is a term used in medical law to decide whether a child, under the age of 16, is able to consent to their own medical treatment, without the need for parental permission or knowledge. The child being able to consent depends on a variety of different factors including intelligence, competence and understanding of treatment.
If a child is not able to consent the people who want to consent can include the child's mother or father, the child's legally appointed guardian, a person with a residence order concerning the child, a local authority designated to care for the child and a local authority or person with an emergency protection order for the child.
An important factor often looked at is capacity, which is the ability to use and understand information to make a decision, and communicate any decision made. A person lacks capacity if their mind is impaired or disturbed in some way, which means they're unable to make a decision at that time. This may be due to mental health conditions – such as schizophrenia or bipolar disorder, dementia, severe learning disabilities, brain damage – from a stroke or other brain injury, physical or mental conditions that cause confusion, drowsiness or a loss of consciousnessand even intoxication caused by drugs or alcohol misuse.
Another topic often explored with Gillick Competence is the Fraser guidelines, which relates to advice and treatment relating to contraception and sexual health while 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.
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.
Let’s now look at an example of a case and I found this case on a BBC podcast. Firstly I will briefly describe the case:15-year-old Ashley had been suffering from intense migraines for two years. After collapsing and being rushed to hospital, a biopsy was performed revealing a brain tumour. He required radiotherapy, which involved wearing a mask and this was very uncomfortable for Ashley. Alongside his fear of needles, Ashley struggled with the treatment and this was only added to by the nausea he would regularly experience. By the end of the third week of treatment he had decided he could no longer continue and became very depressed. Medical Professionals decided he did not have the capacity to refuse treatment at that time and was convinced to continue. Once the course of treatment was over a brain scan brought the incredible news that Ashley’s tumour was gone.
Months later, the migraine returned and the scan revealed he had relapsed and the tumour was back. Ashley expressed his distress and made it clear he did want to go ahead with treatment, despite his doctors’ and mother’s wishes for him to proceed. In the end no treatment was given and he passed away three weeks later. In this particular case Ashley’s mother was in charge of his treatment and was allowed to make decisions for him however when he relapsed he was able to refuse treatment as he had previously made this decision before his relapse showing that he had capacity to make the right decision for him.
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