Landmark case confirms parental consent is not required for treatment of mature minors

Key messages from the case

The law considers a child capable of providing consent to medical treatment when they have ‘achieved sufficient understanding and intelligence to enable them to understand fully what is proposed.’

The legal test has become known as ‘Gillick competence’ after the name of this case.

Details of the decision

Children and consent

The UK Health Department issued guidance for doctors on family planning services, including contraceptive advice and treatment for young people.

Under UK law, minors were deemed to have capacity to consent to medical treatment at 16 years old.

The guidance stated that doctors would hopefully always attempt to persuade patients under 16 to involve their parents or guardians in contraception decisions. However, where a child didn't give permission, health staff needed to consider their confidentiality obligations and balance that with the risk young people may not seek advice at all.  In exceptional cases, the guidance stated doctors should exercise their clinical judgement to decide whether to prescribe contraception.

Mrs Gillick had 5 daughters under the age of 16. She wrote to the health authority requiring an assurance that her daughters would not be given contraceptive advice or treatment without her knowledge and consent.

The department declined to provide this assurance, confirming it was a decision for the individual doctor based on their clinical judgement. Mrs Gillick then applied to the courts to declare that the guidance was unlawful. The matter eventually went to the House of Lords. 

Outcome

Mrs Gillick was unsuccessful. The court found that the guidance was lawful and ruled that:

• A girl under 16 has the capacity to consent to medical examinations and treatment, including contraception, as long as she has the maturity and intelligence to understand the nature and implications of the treatment.
• A parent’s right to make decisions about a child’s medical treatment must be for the child’s benefit and protection.
• There is no fixed age at which a child gains capacity to make decisions for themselves. Rather, a parent’s right gradually dwindles, terminating once a child gains the intelligence and understanding to make the decision for themselves.
• In most cases, parents will be the best judges of a child’s welfare. However, in exceptional cases, a doctor may need to exercise their clinical judgement as to the best interests of the child. That may include giving advice or treatment without the parents’ consent or knowledge, if they cannot persuade the child to involve their parents. It would not be an offence for a doctor to prescribe contraception for a child if they did so exercising their clinical judgement and in what they genuinely believed was their patient’s best interests.

These principles were adopted in Australian law in the case known as “Marion’s case”.

Key lessons

There is no set age at which a child can consent to medical treatment – it is specific to the decision being made and determined by your clinical assessment.

If you are treating a child without their parent or guardian, you need to satisfy yourself the child is mature enough to fully understand the proposed treatment and its consequences.

Consider the type of treatment and potential implications and risks along with the child’s maturity and understanding. Generally, the greater the risk and long-term implications of the treatment the more carefully you need to assess the child’s understanding.

If you decide a child is competent to make the decision, you do not need a parent or guardian’s consent.

Children are also entitled to confidentiality, and you should not contact their parent or guardian without their consent.

However, even if you determine the child can consent, consider whether it may be in their best interests to have parental support. If so, raise this with the child.

As always, document the outcome of your decision regarding the child’s capacity and the discussion.

References and further reading

Avant factsheet – Children and consent

Avant factsheet – Children’s care and separated parents

More information

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