The law is full of idiosyncratic terms that don’t have an obvious self-explanatory meaning. One of those terms is “Gillick competence” which you may or may not come across in your family law matter, depending on the situation. Here’s a little explainer on what the term means and when it might be relevant. So what is a Gillick competent child?
[What is a Gillick competent child?…continued]
“Gillick competence” is a medicolegal term that relates to children’s ability to consent to medical procedures and treatments. Although sometimes people believe that children only acquire the ability to consent to medical procedures once they reach the age of adulthood at 18, this is not the case. In some cases, a child will be able to consent to treatment without their parents’ consent, if they are found to be “Gillick competent”.
The term “Gillick competence” comes from a landmark English case where the courts first recognised that a minor might be competent to make decisions without parental consent. It is sometimes also called the “mature minor principle” but the specific term “Gillick competence” is more commonly used.
The English Gillick case held that “parental right yields to the child’s right to make his/her own decisions when he/she reaches a sufficient understanding and intelligence to be capable of making up his/her own mind”. The idea is to ensure children are protected from wrong decisions made by parents, where there might be irreversible wrong outcomes for the child, by giving the child decision-making power.
Who gives consent?
When it comes to consent and children aged under 18, minors under Australian law, common law usually guides the court outcomes as there is no legislation that actually spells out when exactly a child can consent to medical procedures without parental consent (except in South Australia).
Under common law, a child under 18 (or 16 years in South Australia) may legally consent to most types of medical treatment on their own behalf if health practitioners deem them competent to decide. If the child is deemed not competent, parental consent must usually be obtained.
For some types of procedures and treatments though, a health practitioner’s assessment of a child’s competency is not enough and a court order on Gillick competence is needed. Only courts can rule on whether a child is Gillick competent. If a child is found not to be Gillick competent, the court will make a decision on whether to allow a proposed medical treatment.
How is competency assessed?
For a child to be Gillick competent, he or she must have “sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. It’s assessed on a case by case basis, depending on the type of medical treatment proposed.
An assessment is made taking into account many factors: age, maturity, intelligence, education, level of independence and the ability to express their wishes. To make an opinion about a child’s “intelligence and understanding”, this means looking into whether the child understands what the treatment is for, why it’s necessary, whether there are any alternatives, what the treatment entails, what treatment outcomes and side effects or risks may be, how serious the treatment is, what the consequences are of not treating, and if there are any consequences of discovery of the treatment by a parent.
If a court rules that a child is Gillick competent:
- The child can consent to the special medical procedure
- Parental consent is not required
- A court order authorising the treatment is not required
The consent is as effective as that of an adult and it can’t be overruled by a parent.
What kind of matters involve Gillick competence?
It is relevant in cases involving medical procedures which are invasive or irreversible, or those that need major surgery or where the consequences of the procedure carry significant risk. These procedures are usually seen in cases of Gender Identity Dysphoria (GID) and surgical gender reassignment, but also in cases of major medical surgery such as heart surgery. (Note that consent also extends to refusing to consent to treatments.)
Transgender and the Gillick competent child
Gillick competence is an important part of the equation when it comes to transgender children seeking treatment.
In Australia, common law has established there is no need to apply to court if there is no dispute over the child’s competence or consent to therapeutic medical treatment by those with parental responsibility as well as the doctors/institutions providing the treatment.
But if there is conflict over a child’s competence or there is no parental and medical practitioner consent, or the parents and medical practitioners disagree, then a court will make the decision having regard to the child’s best interests.
In a recent case involving GID, a child who was a female at birth and is transitioning to male, was seeking to access the Stage 2 treatment testosterone, a treatment that has some irreversible elements. The mother had brought the application because the father declined to give consent. The court, supported by medical practitioners, found the child was Gillick competent to consent to the treatment.
If you need assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
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