Gillick competency and Fraser guidelines

Gillick competency and Fraser guidelines refer to a legal case which looked specifically at whether doctors should be able to give contraceptive advice or treatment to under 16-year-olds without parental consent. Since then, the Gillick test and Fraser guidelines have been used more widely to help assess whether a child has the maturity to make their own decisions and to understand the implications of those decisions without the need for parental permission or knowledge.

The standard for assessing Gillick competence is based on a decision of the House of Lords in the case Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL). The test is identified by Lord Scarman:

"As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed."

Mr Justice Woolf in the same judgment stated that:

"...whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent."

When deciding whether or not a child is competent to make their own decisions Lord Fraser established in the Gillick case the Fraser guidelines which apply specifically to contraceptive advice:

"... a doctor could proceed to give advice and treatment provided he is satisfied in the following criteria:"

  • that the girl (although under the age of 16 years of age) will understand his advice;
  • that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice;
  • that she is very likely to continue having sexual intercourse with or without contraceptive treatment;
  • that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;
  • that her best interests require him to give her contraceptive advice, treatment or both without the parental consent.

The nature of the Gillick standard remains uncertain. As yet the courts have not defined "Gillick competence" rigidly and medical, legal, health and social work professionals continue to debate how to balance children’s rights with the duty of child protection professionals to act in the best interests of the child.

Using the test and guidelines

When seeking consent for a child or young person to access a service the key test would appear to be whether the young person has ‘sufficient understanding and intelligence to understand fully what is proposed’. Staff would also need to be clear that, where possible, parental consent has been sought and that in their opinion it is in the child’s best interest to take part in the service. Staff should discuss any such decisions with a line manager or colleague.