Consent and Gillick competence

A 15-year-old patient in England, Miss B, is admitted for an emergency Caesarean section at 37 weeks, following a placental abruption. She appears to have sufficient understanding and intelligence to fully comprehend what is involved in the proposed operation and so is deemed ‘Gillick competent’ to consent to the procedure. However, Miss B is adamant that she would refuse a blood transfusion under any circumstance. Her mother, a devout Jehovah’s Witness, agrees with this decision. Miss B signs a form stating that she will not accept a blood transfusion, even if required to save her life. Does being Gillick competent mean that Miss B can refuse life-saving treatment?

What is Gillick competence?

A young person at age 16 can be presumed to have the capacity to consent. Below that age they may have the capacity to consent, depending on their maturity and ability to understand what is involved, and this is often referred to as Gillick competence. It is derived from the English legal case of Gillick v West Norfolk & Wisbech Area Health Authority. Here the House of Lords considered whether doctors should be able to give contraceptive advice or treatment to young people under age 16 without obtaining parental consent.

The court found that patients under the age of 16 may have the capacity to consent (without the need for parental consent) but that it is up to medical professionals to make that assessment on a case-by-case basis. Capacity to consent is also decision-specific and consideration must be given to the complexity and importance of the decision.

To be Gillick competent, the patient must have sufficient understanding and intelligence to fully comprehend what is involved in a proposed treatment, including its purpose, nature, likely effects and risks, chances of success and the availability of other options.

Just because Miss B is assessed as being Gillick competent to consent to the operation does not mean that she is competent to refuse consent for the blood transfusion. The understanding required for different interventions can vary considerably, and when the risks are more significant, a greater degree of understanding and appreciation of the consequences is required.

GMC guidance

The GMC states in 0-18 years: guidance for all doctors (para 22) that treatment can be provided with the consent of a competent child, the consent of one person with parental responsibility or the court, as long as the treatment provided is in the best interests of the child (there are a few exceptions where the consent of both parents is required, for example elective non-medical male circumcision).

Paragraph 27 of the GMC guidance also states that if a child lacks the capacity to consent, you should ask for parental consent. It is usually sufficient to have consent from one parent, but if the parents disagree and this cannot be resolved informally, you should seek legal advice about whether to apply to the court.

Emergency treatment without consent can be provided to save the life of a child or prevent serious deterioration in their health. All decision making in this regard should be carefully documented.

Treatment decisions in patients with Gillick competence

In the scenario above, the obstetric team would need to undertake a careful assessment to determine if Miss B is Gillick competent to refuse the blood transfusion. This may require involvement of the wider multi-disciplinary team and consultation with the hospital’s legal department. For such a refusal to be valid, Miss B would need to be judged not only competent but also able to make the decision voluntarily, without undue influence or pressure from anyone else.

Even if Miss B is assessed as competent to make a decision to refuse treatment, this may be overridden by someone with parental responsibility or a court in cases where refusal would likely lead to severe risk to health or death. The GMC’s 0-18 years guidance makes clear that overriding a competent child’s refusal of treatment is a complex area of law and legal advice should be sought.

Competent minors have had their refusals of blood transfusion overridden by English courts. In the case of Re E (Children: Blood Transfusion), the Court of Appeal dismissed an appeal by two teenagers against the court’s decision to order that it was lawful for them to receive blood transfusions if it became necessary to do so in the course of medical treatment. The first and paramount consideration of the court is the wellbeing, welfare or interests of the minor.

The Royal College of Surgeons of England, in consultation with others, has produced a guide to the surgical management of patients who refuse blood.

Treatment decisions in a patient assessed as not Gillick competent

Consider the scenario in which Miss B is deemed not Gillick competent to refuse a blood transfusion – an unenviable position for an obstetrics team if such a need arises. Parental consent is unlikely to be forthcoming so it may be prudent to inform the hospital’s legal department before the patient is taken to theatre (time-permitting) so that advice can be obtained to cover such a possibility.

Emergency treatment can be provided without consent to save the life of a child or prevent serious deterioration in their health. In a situation where Miss B does not have capacity to consent to the refusal of blood and her mother denies such consent, the decision as to whether or not to treat will involve assessment of Miss B’s best interests. The GMC states in the 0-18 years guidance that assessment of best interests should include what is clinically indicated in a particular case and also:

• the views of the child or young person, so far as they can express them, including any previously expressed preferences
• the views of the parents
• the views of others close to the child or young person
• cultural, religious or other beliefs and values of the child or parents
• the views of other healthcare professionals involved in providing care to the child or young person, and of any other professionals who have an interest in their welfare
• which choice, if there is more than one, will least restrict the child or young person’s future options.

The RCS England guidance on patients refusing blood highlights that surgical teams in England and Wales can make a specific issue order (SIO) under section 8 of the Children Act 1989 to provide legal sanction for the administration of blood. If there is insufficient time to obtain an SIO from a court owing to clinical urgency, blood should be given only where absolutely necessary to prevent severe detriment to the child’s health.

The guidance emphasises that surgeons have a legal and ethical responsibility to ensure the wellbeing of the child under their care and this must be their first consideration (while making every effort to respect the beliefs of the family and avoid the use of blood or blood products wherever possible).

Any decision taken should be made with legal advice (if possible within the relevant timeframe) and carefully documented in the records.

Note that the above analysis relates to the law in England and Wales. In Scotland parents cannot authorise treatment that a competent young person has refused.

Key points

• Minors in England below the age of 16 can consent to medical treatment if they are assessed to be Gillick competent to do so.
• Capacity to consent is decision-specific and consideration must be given to the complexity and importance of the decision to be made as part of the assessment.
• Consent must be freely given and without undue influence from others.
• Urgent advice should be sought from the hospital’s legal team who may seek to obtain approval from the court to proceed with the life-preserving/saving treatment.
• With so many ethical and legal considerations involved, it is important to explore all the factors and use your judgement to assess the ability of a patient to consent to/refuse treatment.

Members can contact advice@mddus.com for further advice and support if faced with a such a scenario.