Gillick or Fraser? A plea for consistency over competence in children
BMJ 2006; 332 doi: https://doi.org/10.1136/bmj.332.7545.807 (Published 06 April 2006) Cite this as: BMJ 2006;332:807
All rapid responses
Rapid responses are electronic comments to the editor. They enable our users to debate issues raised in articles published on bmj.com. A rapid response is first posted online. If you need the URL (web address) of an individual response, simply click on the response headline and copy the URL from the browser window. A proportion of responses will, after editing, be published online and in the print journal as letters, which are indexed in PubMed. Rapid responses are not indexed in PubMed and they are not journal articles. The BMJ reserves the right to remove responses which are being wilfully misrepresented as published articles or when it is brought to our attention that a response spreads misinformation.
From March 2022, the word limit for rapid responses will be 600 words not including references and author details. We will no longer post responses that exceed this limit.
The word limit for letters selected from posted responses remains 300 words.
As one of the “teachers of medical law … encountering genuine
difficulty” over how best to convey the law governing a young person’s
competence to consent to medical treatment, Wheeler’s editorial provides
helpful clarification.[1] That Mrs Gillick did not and does not object to
her name being synonymous with the concept of a competent minor is a
welcome finding, since the introduction of the term “Fraser competence”
was indeed confusing and objectionable. Lord Fraser was only one of five
Law Lords to adjudicate on the Gillick case, and some critics have felt
that his judgment gave too much credence to “welfarist” concerns, despite
also signalling the importance of respecting a young person’s autonomy.
[2],[3] Subsequent English case law certainly appears to have developed
the Fraser line, in prioritising the welfare of the child over any “right”
to decide about whether or not to accept medical treatment.[4],[5]
However, other judges in Gillick, particularly Lord Scarman, appeared to
offer more robust defences of the minor’s right to self-determine and we
should not be tempted to overlook these aspects of the ruling, especially
now that we are in the era of the Human Rights Act 1998.[6] Reinstating
“Gillick competence” as the preferred nomenclature should better ensure
that the finer nuances of the original ruling are not forgotten.
[1] Wheeler R. Gillick or Fraser? A plea for consistency over
competence in children. BMJ 2006; 332: 807 (8 April).
[2] Gillick v West Norfolk and Wisbech AHA [1986] AC 112.
[3] Lee S. Towards a jurisprudence of consent. In Eekelaar J and Bell
J. Oxford Essays in Jurisprudence. Third series. Oxford: Oxford University
Press. 1987.
[4] Re R (A Minor)(Wardship: Consent to Treatment) [1991] 4 All ER
177.
[5] Re W (A Minor)(Consent to Medical Treatment) [1992] 4 All ER 627.
[6] Cf. R (on the application of Axon) v Secretary of State for
Health [2006] HRLR 12.
Competing interests:
None declared
Competing interests: No competing interests
The Editorial in this week's BMJ 2006;332:807 by Robert Wheeler is
unfortunately very misleading in its scope. It does not make any
distinction between the Law as it exists in England and Wales, Scotland
and Northern Ireland.
The article refers to "in Britain" and "UK Law" but does not mention that
the Law on Competence in Scotland is different, "Gillick" does not apply
and presumably the "Fraser guidelines" are the same.
The position is laid out very well in the article by Vic Larcher BMJ
2005;330:353-356.
At the bottom of page 353 he states that "The validity of a child's
consent turns on personal capacity as judged by the opinion of a qualified
medical practitioner attending him (Age of Legal Capacity (Scotland) Act
1991:S2(4).) He also comments correctly on the following page that "In
Scotland competent children may consent to treatment irrespective of age"
This is a fundamental difference and it very important that any
article in the BRITISH Medical Journal should be accurate if it is to be
authoritative.
It is very confusing for all medical practitioners in the British
Isles particularly if they qualified in one country and then move to
another to keep in touch with the true position and there is therefore an
onus for all articles to be accurate.
Competing interests:
I was Chairman of Scottish Council of the BMA at the time of Devolution.
Competing interests: No competing interests
The article by Wheeler on Gillick provided an interesting comparison
of the Gillick and Fraser tests.1
However, the piece gives the impression that it was written to
address the law as it is in the UK: ‘In Britain people describe the
assessment of competence ...’ (first para.), and ‘In UK law a person’s
18th birthday draws the line between childhood and adulthood’ (third
para.). Also, it makes references to what is English/Welsh legislation.
3,4 In so doing, it fails to give recognition to the different approach
under Scots Law.
As Gillick was decided ultimately in the House of Lords 2, its
authority extends to Scotland as well as to other parts of the UK.
However, Scots Law has gone beyond Gillick with the enactment in 1991 of
the Age of Legal Capacity (Scotland) Act (the ‘Scottish Act’). Since
Parliamentary legislation is superior to common law, it is the terms of
the Scottish Act that prevail in Scotland.
Under the ‘Scottish Act’, it is the young person’s 16th birthday that
draws the line between childhood and adulthood, not his/her 18th birthday
as under English/Welsh legislation. The ‘Scottish Act’, too, has provided
that in certain circumstances a person under age 16 years will be deemed
to have the capacity to consent to any surgical, medical or dental
treatment or procedure with the proviso that he/she is capable of
understanding the nature and consequences of the proposed treatment or
procedure. 5
I accept that the tenor of the ‘Scottish Act’ is not radically
different from the common law position of England/Wales. However, Scotland
does have a different system and this should be acknowledged in a Journal
that is read by all parts of the UK, not to mention the wider world.
Practitioners working in Scotland would do well to familiarise themselves
with the workings of the ‘Scottish Act’.
1 Wheeler R. Gillick or Fraser? A plea for consistency over
competence in children. BMJ 2006;332: 807. (8 April).
2 Gillick v West Norfolk & Wisbech AHA & DHSS [1985] 3 WLR (HL).
3 Children Act 1989 s105(1).
4 Family Law Reform Act 1969 s8.
5 Age of Legal Capacity (Scotland) Act 1991 s2(4).
Competing interests:
None declared
Competing interests: No competing interests
Safeguarding Children Perspective
Reference the ruling Gillick and/or Fraser. The original Gillick
Rulling was in relation to the prescription of contraception to Mrs.
Gillick's daughter who was under 16 at the time. The fact that the
judgement in Gillick was that a child or young person under 16 could
consent to medical treatment without the consent of the parents provided
they fully understood the consequences having had them explained in a way
they can understand them is factually correct. The case however was based
around the prescription of a contraceptive.Therefore the reference made by
Fraser in relation to contraception was indirectly connected to the
Gillick ruling but a statement made by Judge Fraser as described by the
article.
I however am very clear when training around the Sexual Offences Act 2003
in relation to sexual activity under 16 and under 13 the Gillick ruling
and the Fraser ruling are linked in respect to making referrals to the
appropriate authority as described within Working Together to Safeguard
Children 2006. From a medical point of view I can appreciate why the clear
distinction is highlighted but this should not cloud the requirement to
refer to the appropriate authority where concerns are raised as described
within Working Together 2006.
Competing interests:
None declared
Competing interests: No competing interests