LTKA - Gillick Competence (against schools fingerprinting our children)

The question as to whether children can consent to procedures that affect them has been considered in the medical field. In particular, the position of those under 16 was considered in 1985 in the case of Gillick vs West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL), the principles of which have been distilled from the leading speech of Lord Fraser and are commonly referred to as the "Fraser Guidelines".

These set out criteria for doctors and other health professionals to apply in ascertaining, where there is a conflict of interest between a child or young person and his/her parents, whether medical advice or treatment can be given without the consent or knowledge of the parent. A child or young person who is judged after consideration of these criteria as having the capacity to consent is often referred to as being "Gillick Competent".

In Gillick, the House of Lords held that parental consent was not necessarily required when a young person aged under 16 sought contraceptive advice, and Lord Fraser laid down guidelines establishing the procedure to be followed when a child or young person sought confidential medical advice:

1) if a doctor was of the view that the procedure could be said to be in a child's best interests, and

3) provided that the child was able to understand the nature and consequences of the medical procedure,

then the child was competent to consent without the knowledge or consent of his/her parents.

This formula has been applied by professionals dealing with children and young people in other areas where consent is necessary. Some agencies believe that a child or young person is able to consent to have his/her data collected or shared without parental involvement, knowledge or consent if the child is said to be "Gillick Competent", by which they mean that a child or young person is sufficiently intelligent and mature to be able to understand the nature and consequences of the choice being put to them. This approach overlooks a fundamental element of the Fraser Guidelines, which is that of a prior assumption of parental involvement.

It is useful to set out the relevant passage of Lord Fraser's speech in Gillick:

"The only practicable course is to entrust the doctor with a discretion to act in accordance with his view of what is best in the interests of the girl who is his patient. He should, of course, always seek to persuade her to tell her parents that she is seeking contraceptive advice, and the nature of the advice that she receives. At least he should seek to persuade her to agree to the doctor's informing the parents. But there may well be cases, and I think there will be some cases, where the girl refuses either to tell the parents herself or to permit the doctor to do so and in such cases, the doctor will, in my opinion, be justified in proceeding without the parents' consent or even knowledge provided he is satisfied on the following matters:

(1) that the girl (although under 16 years of age) will understand his advice;

(2) that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice;

(3) that she is very likely to begin or continue having sexual intercourse with or without contraceptive treatment;

(4) that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;

(5) that her best interests require him to give her contraceptive advice, treatment or both without the parental consent.

That result ought not to be regarded as a licence for doctors to disregard the wishes of parents on this matter whenever they find it convenient to do so. Any doctor who behaves in such a way would be failing to discharge his professional responsibilities, and I would expect him to be disciplined by his own professional body accordingly"

Note the emphasis that the Law Lords placed upon adopting this course only when a young person specifically refuses parental involvement. The judgment in Gillick was reaffirmed in 2006 in the 'Axon' case - again, a medical situation concerning the right of a young person to seek abortion without parental knowledge.

In addition to a child or young person understanding the nature of her choice, there is considerable emphasis on the requirement that he/she be encouraged to involve his/her parents. It has also to be remembered that the court takes it for granted that the medical professional, in accordance with professional obligations, makes a full and detailed explanation of the procedure, its advantages and disadvantages, to the young person.

Is this the position when the child is asked to give consent in other situations? In the Gillick case, the child or young person is themself asking for provision to be made without the knowledge of her parents as there is a perceived conflict. The guidelines are designed to inform doctors as to how to resolve that conflict when it exists; the emphasis on involving parents makes that abundantly clear.

While we all take for granted that advice provided by a medical professional will be impartial, can the same be said of a practitioner in an agency where information-sharing is considered an essential component of the service? In that situation there is inevitably an institutional bias towards gaining consent.

When a child or young person is asked for consent where there is no conflict of interest, there is no reason or necessity, and therefore no justification, for dispensing with parental consent or involvement. Indeed, if consent of children or young people is being sought on the basis of convenience without the encouragement of parental participation, that would appear to be capable of amounting, as Lord Fraser sets out, to a failure in the professional to "discharge his professional responsibilities".

It is also important to consider the way in which consent is sought, and the environment within which the request is made. Any whole-class approach to seeking consent may embarrass a young person, discouraging him/her from exercising the right to seek guidance from his parents. Further, while in school, children and young people are expected to conform to the wishes of the adults who have charge of them. It is not therefore an environment that is conducive to genuinely free consent.

Thanks to Action On Rights For Children for the above information regarding the Fraser Guidelines on Gillick Competence.

"Education, Education, Education" Tony Blair (1996) "Consent, Consent, Consent" Concerned parents (2007)

We are campaigning for the widespread use of biometrics in UK schools to be debated in Parliament, strictly regulated and
closely monitored, with statutory requirements for explicit informed parental consent where children's biometrics are taken

strictly © LeaveThemKidsAlone.com 2006-2007 Contact Us Disclaimer Privacy Policy menu © 2006-2007 javascript-array.com