Consent and Gillick Competence

Definitions

Competence/Capacity: Able to consent to a medical intervention.

Intervention: A treatment, procedure or other action taken to prevent or improve a disease, or improve health in another way.

Advanced Directive/Decision: This is a statement written by a patient discussing medical treatments they would not want in the future if they lack capacity to make a decision. This includes life sustaining treatment such as ventilation, CPR and antibiotics.

Advance Statement: This is a statement that sets down your preferences, wishes, beliefs and values regarding your future care (e.g who will look after pets, how you prefer to be washed, where you would like to be cared for: hospital, hospice, at home etc.).

Health and Welfare Lasting Power of Attorney: This is a form filled out by a person which gives another individual the ability to make medical decisions on their behalf, should they be unable to make their own decision in the future. For example, if you are diagnosed with dementia.

Consent

In order for a patient to give informed consent to a particular procedure there are three criteria as stated by the NHS website:

  • Voluntary

    • When consenting to a treatment, the patient must make the decision without any external influence from staff, friends or family.

  • Informed

    • Before consenting to a treatment, the patient should be informed about their diagnosis and prognosis. For potential treatments, the patient should be informed about the benefits, risks and other reasonable alternative treatments.

  • Capacity

    • The patient must be capable of giving consent. They must understand the information, retain the information and use the information to make an informed decision which they can communicate to others.

Provided the patient meets these three criteria, then they are able to consent or refuse a treatment, even if it results in their death or the death of an unborn child. However, when one of these criteria are not met, this is when the doctor(s) can step in and make a different decision.

Voluntary

The patient must voluntarily consent to the treatment without any external influence. This may involve the doctor asking any family members or relatives to step outside the room when consulting the patient, and ensuring they are free from coercion.

For children, coercion can occasionally be used as a reason for treatment without consent:

A blood transfusion contradicts the beliefs of a Jehovah’s witness and if an adult doesn’t consent to the treatment, then the doctor must respect these wishes even if it leads to the death of the patient. However, in the past there have been examples when a Jehovah’s witness below 16 years old, has been giving a life saving transfusion as they were believed to be under coercion from their parents.

Informed

Before a patient makes a decision about their healthcare, they must be informed of their right to seek a second opinion. It is the doctor’s duty to ensure the patient has received and understood all relevant information, which, according to the GMC “Decision Making and Consent” guide, may include:

  • A diagnosis and prognosis.

  • Further investigations and uncertainties about the diagnosis and prognosis.

  • Possible treatments, what they involve, and the desired outcome.

  • The potential risks of harm and the uncertainties of success.

  • The ability to take no action, and the likely effects of this decision.

Capacity

Any patient over the age of 16 is presumed to have capacity unless there is evidence to suggest otherwise (e.g. dementia, severe learning difficulties, brain damage, delirium, intoxication, some mental health conditions - under the Mental Capacity Act 2005 etc.).

However, determining capacity is situation dependent; just because a patient has the capacity to consent to one treatment, doesn’t mean they have the capacity to consent to another. For example, a person with an eating disorder may have the capacity to consent to a cancer treatment but may lack capacity to consent to cognitive behavioural therapy and a meal plan, as they can’t acknowledge their own condition.

When the patient lacks capacity, the doctor must act in the patient’s best interests:

  • Initially consult the Health and Welfare Lasting Power of Attorney or Advanced Directive if the patient has one.

  • Decide if its appropriate to wait until the patient has capacity.

  • Involve the patient in their own healthcare as much as possible (the NHS Constitution highlights the importance of “working together for the patient” and “respect and dignity”).

  • Ensure you keep within the patient's moral and religious values (e.g if an unconscious Jehovah’s witness requires a blood transfusion, the doctor must treat the patient to the best of their ability without the transfusion as it contradicts their religious beliefs).

To determine capacity in situations when it is unclear. Capacity is evidenced by:

  • Understanding: They must understand their condition, the treatments as well as the short and long term effects of each.

  • Retaining: They must be able to retain the information and use it to make an informed decision without undue influence or coercion.

  • Explaining: They must be able to explain their rational and decision making.

Note: even if the decision doesn’t seem to be rational (e.g an emergency Caesarian section when its the only way the baby will survive) as long as the patient demonstrates capacity, the patient’s decision must be upheld. To go against their decision would be ‘battery’ (a crime involving applying intentional and reckless unlawful force to a person).

Gillick Competence

Gillick Competence: This is the framework for medical decision making in under 16s. If they demonstrate capacity, they are able to consent to (or refuse) an intervention.

In accordance with the Children Act 1989, anybody with parental responsibility can give consent on behalf of a child. However, The Family Reform Act 1969 enables children under the age of 16 to give consent if they display Gillick competence.

In order to assess Gillick Competence, the doctor should ask themselves:

  • What is their age, mental age and maturity?

  • Do they have capacity?

    • Do they understand the condition, possible interventions, short and long term effects?

    • Can they retain the information?

    • Can they explain their rationale and decision-making?

  • Is their decision free from coercion and undue influence?

If all these questions are answered “yes” then the patient can be considered competent. However, the doctor should try and persuade the patient to inform their parents and determine why they don’t want their parents knowing to ensure they are not at risk of harm. Examples of situations that require Gillick competence:

  • A 13 year old seeking therapy.

  • A 15 year old seeking advice for substance misuse.

  • A 14 year old seeking sexual health advice.

In cases where the patient is not deemed to be Gillick competent, the doctor is obliged to raise the issue through the safeguarding processes and inform the child of this.

Fraser Guidlines

These are guidelines which apply specifically to sexual health advice, treatment and contraception. Doctors should use the same framework for assessing Gillick competence with two additional questions:

  • Is it in the patient’s best interest to receive the treatment/intervention (e.g is their physical or mental health at risk without it? Are they likely to continue having sex without it?).

  • Is it in the patient’s best interests that the parents don’t know?

If these can be answered “yes” then the patients can be considered competent. Once again, the doctor should try and persuade the patient to inform their parents and determine why they don’t want their parents knowing.

Child Protection Referral

  • If they are under 13 and requesting sexual health treatment or substance misuse, they should be referred to Child Protection services.

  • If the action is repeated (STI Infection, substance misuse etc.) this could signify sexual exploitation and should be referred.

Informed Consent and the GMP

If the patient has been deemed to have capacity and is free from coercion, in order for a patient to consent, the doctor (regardless of their beliefs) must provide all relevant information and possible treatments. The GMC states in GMP:

“You must give patients the information they want or need in a way they can understand.”

“You must explain to a patient if you have a conscientious objection to a particular procedure. You must tell them of their right to see another doctor and make sure they have enough information to exercise that right.”

If all this criteria is met, then the patient can consent to an intervention.