Competence in children has a Scottish twistBMJ 2006; 332 doi: https://doi.org/10.1136/bmj.332.7547.975 (Published 20 April 2006) Cite this as: BMJ 2006;332:975
- Mark J Sterrick, medical officer ()
EDITOR—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 United Kingdom: “In Britain people describe the assessment of competence” (first paragraph), and “In UK law a person's 18th birthday draws the line between childhood and adulthood” (third paragraph). Also, it makes references to what is English/Welsh legislation.2 3 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,4 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, the young person's 16th birthday draws the line between childhood and adulthood, not his or her 18th birthday as under English and Welsh legislation. The Scottish Act, too, has provided that in certain circumstances a person younger than 16 will be deemed to have the capacity to consent to any surgical, medical, or dental treatment or procedure with the proviso that he or 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 and Wales. However, Scotland does have a different system, and this should be acknowledged in a journal that is read in 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.
Competing interests None declared.