Gillick Competence and Medical Treatment: Legal and Ethical Arguments

Running head: HEALTHCARE LAW
Healthcare Law
Name of the Student
Name of the University
Author Note

1HEALTHCARE LAW
Introduction
It is against the medical ethics to administer clinical treatment to a minor without his
or her consent or consent of the parents or an adult who is empowered to take a call on behalf
of the minor.1 The common position of the law is consistent with the recognition of the rights
of the children under the United Nations Convection of the Rights of the Child (UNCRC).
UNCRC assumes it is the responsibility of the parents to respect the evolving capacities of
the minor (article 5); right of the child to form and express their own views in the domain that
affect then in accordance to their maturity and age (article 12); freedom of the thoughts of the
children (article 14); right of the children to enjoy high level of attainable standards in
healthcare and facilities of the treatment (article 24), 2. The following essay mainly focus on
the is based on the question that if a Gillick-competent child is able to give consent to
medical treatment, what can be the justification for overriding a decision made by the same
Gillick-competent child to refuse medical treatment. The essay will also discuss whether is it
possible to separate legal arguments for overriding the child’s wishes from ethical/moral
arguments.
Factors leading to Gillick-competence assessment and the rationale of Gillick
competence
Gillick-competency rights in favour of children was passed in the UK in 1986
following the case of Mrs, Gillick who vouched that children under 16 years of age is not
eligible by the act of law to give her consent to receive contraceptive advice or treatment. The
Health authority to the House of Lords held this to be unlawful.3 They gave the verdict that
the rights of the parent to determinate whether the child, below 16 years of age will avail the
1 Brierley, J., & Larcher, V.,’Adolescent autonomy revisited: clinicians need clearer guidance’, (2016). 42(8),
Journal of medical ethics, 482-485.
2 United Nations Convection of the Rights of the Child (UNCRC). How we protect children's rights. (March
2019). https://www.unicef.org.uk/what-we-do/un-convention-child-rights/
3 Alderson, P,. ‘Giving Children’s Views “Due Weight” in Medical Law’, (2018), 26(1), The International
Journal of Children's Rights, 16-37.

2HEALTHCARE LAW
medical treatment is not applicable when the child has a significant level of understanding
along with intelligence about the proceedings of the proposed treatment, 4. The test of Gillick
competence is subjective and is based on the judgement of the treating practitioners. In case
of a Gillick competent’ child, who has consented for the treatment, parental objection to the
treatment is irrelevant. The required understanding of the child based on which the Gillick
competency is given is based on appreciating the nature of the advice and when the degree of
understanding of the child to establish competence is found higher in comparison to the
adults5. This signified that the child is capable enough to use proper reasoning before taking
the final decision. The competency of the child is also judged based on the his or her level of
understanding in both short-term and long-term outcome of the treatment and its social, moral
and family related consequences 6.
The rationale of Gillick competence is it enables the children to take the right decision
for them and not to become victims of the dictatorship of their parents or other adults who are
their legal guardian. Moreover Gillick competence is helpful when one the parent is in
disagreement with the treatment as under this situation the doctors often become unwilling to
go against their wishes. In this case the consent from the child can be regarded as beneficial.
It is also helpful during the emergency situation where treatment is vital and waiting for
parental consent can increase the health risk of the child.7
Analysis of the legal and ethical arguments for and against allowing the child to determine
whether or not they will receive the treatment in dispute
4 McAllister, G., ‘Gender dysphoria Australia the judicial response in Re Kelvin’. 2018. (145), 40. Precedent
(Sydney, NSW)
5 Manson, N. C., ‘Transitional P aternalism: How Shared Normative Powers Give Rise to the Asymmetry of A
dolescent Consent and Refusal’, (2015), 29(2), Bioethics, 66-73.
6 National Health Service.(NHS) .Children and young people: Consent to treatment. (March 2019).
https://www.nhs.uk/conditions/consent-to-treatment/children/
7 Telfer, M., Tollit, M., & Feldman, D.’ Transformation of health-care and legal systems for the transgender
population: The need for change in Australia’, (2015), 51(11), J Paediatr Child Health, 1051-53.