Rapid Responses to:
|
|
Rapid Responses: Rapid Responses published:
-
![[Read Rapid Response]](/icons/misc/sectionDOWN.gif)
Competence in children - don’t forget the Scottish dimension
- Mark J Sterrick (11 April 2006)
-
Competence
- Arthur MacG Morris (11 April 2006)
-
Beyond “Fraser Competence”
- Richard Huxtable (26 April 2006)
-
Safeguarding Children Perspective
- Alec Love (4 August 2008)
|
|
|||
|
Mark J Sterrick, Medical Officer Glencorse Barracks, Milton Bridge, Penicuik, Mid Lothian. EH26 0ND
Send response to journal:
|
The article by Wheeler on Gillick provided an interesting comparison of the Gillick and Fraser tests.1 However, the piece gives the impression that it was written to address the law as it is in the UK: ‘In Britain people describe the assessment of competence ...’ (first para.), and ‘In UK law a person’s 18th birthday draws the line between childhood and adulthood’ (third para.). Also, it makes references to what is English/Welsh legislation. 3,4 In so doing, it fails to give recognition to the different approach under Scots Law. As Gillick was decided ultimately in the House of Lords 2, its authority extends to Scotland as well as to other parts of the UK. However, Scots Law has gone beyond Gillick with the enactment in 1991 of the Age of Legal Capacity (Scotland) Act (the ‘Scottish Act’). Since Parliamentary legislation is superior to common law, it is the terms of the Scottish Act that prevail in Scotland. Under the ‘Scottish Act’, it is the young person’s 16th birthday that draws the line between childhood and adulthood, not his/her 18th birthday as under English/Welsh legislation. The ‘Scottish Act’, too, has provided that in certain circumstances a person under age 16 years will be deemed to have the capacity to consent to any surgical, medical or dental treatment or procedure with the proviso that he/she is capable of understanding the nature and consequences of the proposed treatment or procedure. 5 I accept that the tenor of the ‘Scottish Act’ is not radically different from the common law position of England/Wales. However, Scotland does have a different system and this should be acknowledged in a Journal that is read by all parts of the UK, not to mention the wider world. Practitioners working in Scotland would do well to familiarise themselves with the workings of the ‘Scottish Act’. 1 Wheeler R. Gillick or Fraser? A plea for consistency over competence in children. BMJ 2006;332: 807. (8 April). 2 Gillick v West Norfolk & Wisbech AHA & DHSS [1985] 3 WLR (HL). 3 Children Act 1989 s105(1). 4 Family Law Reform Act 1969 s8. 5 Age of Legal Capacity (Scotland) Act 1991 s2(4). Competing interests: None declared |
|||
|
|
|||
|
Arthur MacG Morris, OBE, MA, FRCS. N/A
Send response to journal:
|
The Editorial in this week's BMJ 2006;332:807 by Robert Wheeler is unfortunately very misleading in its scope. It does not make any distinction between the Law as it exists in England and Wales, Scotland and Northern Ireland. The article refers to "in Britain" and "UK Law" but does not mention that the Law on Competence in Scotland is different, "Gillick" does not apply and presumably the "Fraser guidelines" are the same. The position is laid out very well in the article by Vic Larcher BMJ 2005;330:353-356. At the bottom of page 353 he states that "The validity of a child's consent turns on personal capacity as judged by the opinion of a qualified medical practitioner attending him (Age of Legal Capacity (Scotland) Act 1991:S2(4).) He also comments correctly on the following page that "In Scotland competent children may consent to treatment irrespective of age" This is a fundamental difference and it very important that any article in the BRITISH Medical Journal should be accurate if it is to be authoritative. It is very confusing for all medical practitioners in the British Isles particularly if they qualified in one country and then move to another to keep in touch with the true position and there is therefore an onus for all articles to be accurate. Competing interests: I was Chairman of Scottish Council of the BMA at the time of Devolution. |
|||
|
|
|||
|
Richard Huxtable, Senior Lecturer/Deputy Director Centre for Ethics in Medicine, University of Bristol, Hampton House, Cotham Hill, Bristol BS6 6AU
Send response to journal:
|
As one of the “teachers of medical law … encountering genuine difficulty” over how best to convey the law governing a young person’s competence to consent to medical treatment, Wheeler’s editorial provides helpful clarification.[1] That Mrs Gillick did not and does not object to her name being synonymous with the concept of a competent minor is a welcome finding, since the introduction of the term “Fraser competence” was indeed confusing and objectionable. Lord Fraser was only one of five Law Lords to adjudicate on the Gillick case, and some critics have felt that his judgment gave too much credence to “welfarist” concerns, despite also signalling the importance of respecting a young person’s autonomy. [2],[3] Subsequent English case law certainly appears to have developed the Fraser line, in prioritising the welfare of the child over any “right” to decide about whether or not to accept medical treatment.[4],[5] However, other judges in Gillick, particularly Lord Scarman, appeared to offer more robust defences of the minor’s right to self-determine and we should not be tempted to overlook these aspects of the ruling, especially now that we are in the era of the Human Rights Act 1998.[6] Reinstating “Gillick competence” as the preferred nomenclature should better ensure that the finer nuances of the original ruling are not forgotten. [1] Wheeler R. Gillick or Fraser? A plea for consistency over competence in children. BMJ 2006; 332: 807 (8 April). [2] Gillick v West Norfolk and Wisbech AHA [1986] AC 112. [3] Lee S. Towards a jurisprudence of consent. In Eekelaar J and Bell J. Oxford Essays in Jurisprudence. Third series. Oxford: Oxford University Press. 1987. [4] Re R (A Minor)(Wardship: Consent to Treatment) [1991] 4 All ER 177. [5] Re W (A Minor)(Consent to Medical Treatment) [1992] 4 All ER 627. [6] Cf. R (on the application of Axon) v Secretary of State for Health [2006] HRLR 12. Competing interests: None declared |
|||
|
|
|||
|
Alec Love, Director Allied Child Protection Consultants Ltd
Send response to journal:
|
Reference the ruling Gillick and/or Fraser. The original Gillick Rulling was in relation to the prescription of contraception to Mrs. Gillick's daughter who was under 16 at the time. The fact that the judgement in Gillick was that a child or young person under 16 could consent to medical treatment without the consent of the parents provided they fully understood the consequences having had them explained in a way they can understand them is factually correct. The case however was based around the prescription of a contraceptive.Therefore the reference made by Fraser in relation to contraception was indirectly connected to the Gillick ruling but a statement made by Judge Fraser as described by the article. I however am very clear when training around the Sexual Offences Act 2003 in relation to sexual activity under 16 and under 13 the Gillick ruling and the Fraser ruling are linked in respect to making referrals to the appropriate authority as described within Working Together to Safeguard Children 2006. From a medical point of view I can appreciate why the clear distinction is highlighted but this should not cloud the requirement to refer to the appropriate authority where concerns are raised as described within Working Together 2006. Competing interests: None declared |
|||