On 6 April PM Boris Johnson made a statement in an interview with Sky News that undermines Gillick competence and young people’s rights. Brook’s Head of Policy and public Affairs Lisa Hallgarten explains what Gillick Competence is and why it is so important.
What does Gillick competence mean?
In 1985 a court ruled that a clinician can provide contraceptive care to a young person under 16 without parental involvement if the young person:
- May be harmed by not accessing the treatment they request
- Is deemed ‘competent’ to consent i.e. they have the maturity and comprehension to understand the treatment they are asking for and associated risks and benefits
- cannot be persuaded to involve a parent or carer in the treatment decision
The key principle embedded in the court decision is that a clinician must use their professional judgment to assess whether a young person is ‘competent’.
Although the original ruling referred specifically to the provision of contraception, the Department of Health later issued guidance clarifying that the same principles apply to supporting young people with a decision about abortion.
In the intervening years the principle of assessing Gillick competence has been widely applied across all areas of health and social care when supporting young people with decision-making.
Why is it important for young people to be able to make their own decisions?
The Fraser Guidelines and application of Gillick Competency provide clinicians with the opportunity to support young people without parental involvement. This is vital where there is a risk of parents being obstructive or coercive in relation to treatment options or where disclosing the need for treatment (e.g. the fact that the young person is sexually active) may represent a safeguarding risk to that young person.
The United Nations Convention on the Rights of the Child recognises that children and young people should have increasing rights to make decisions about things affecting their lives, in line with their ‘evolving capacity’. Because young people all mature differently and have different levels of comprehension, young people are assessed for competency on an individual basis.
Does the application of Gillick competence mean that young people can automatically consent to gender-affirming medical treatment?
No.
There is nothing automatic or indeed fast about accessing gender-affirming medical treatment. Waiting lists and waiting times for appointments with gender identity services are extremely long with many young people waiting many months or even years to be seen.
Once in the service, individuals are assessed over several appointments to understand their feelings about their gender identity, how they are currently identifying and expressing their gender identity (e.g. whether they have socially transitioned), how long-lasting and robust their desire to transition is and whether a medical intervention would be appropriate for them.
The majority of the young people seen at the Gender Identity Service (GIDS) at the Tavistock Clinic do not go on to have any medical intervention.
It is unusual for the GIDS clinic to recommend a young person for treatment without parental involvement in the decision.
Who is best placed to make decisions about young people’s treatment in relation to gender identity issues?
This question has been discussed in three separate legal proceedings in the past two years.
1) In 2020 a court ruled that most young people under 16 and some over 16 would not be able to make an informed decision about using puberty blockers. The implication of this ruling was that in the case of younger people, even where there was no difference of opinion between the clinician, the parent and the young person a court would still have to scrutinise a decision to undertake treatment. This ruling was widely believed to undermine the fundamental principles guiding care of young people for nearly 40 years.
2) In 2021 Brook was an intervenor in an appeal against the ruling. The appeal overturned the ruling and found that young people could be deemed competent to consent to treatment and upheld the House of Lords decision in the Gillick case ‘that it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment’. We have written more about the reason for our intervention here.
3) In a separate court case judges found that parents should be able to consent to their children’s treatment unless they were seeking to override the young person’s decision.
What are the wider implications and risks of undermining the principle of Gillick competence?
The rights of trans people and especially young trans people have become a hot topic for the UK media, with politicians increasingly divided over the issue of gender-affirming treatments, conversion therapy bans, reform of the Gender Recognition Act and more.
Not only are trans and non-binary people feeling that their rights are in the balance, but there is a danger that attempts to limit their rights will have ramifications for a broader set of rights and principles for the wider population.
For example all young people will be made vulnerable and deprived of their rights to access care autonomously if the principle of Gillick competency is undermined; as will the right, ability and remit of clinicians to draw on their expertise, knowledge and relationships with young people to make judgments about individual patients.