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Gillick Competence & Fraser Criteria

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Overview

Underlying story

Back in the year 1982, Mrs. Victoria Gillick found contraceptive pills in her daughter’s bedroom.  She went to her doctor to ask “Did you prescribe contraceptive pills to my daughter?  I want to know why she was prescribed contraceptive pills without my knowledge and consent.”  

When asked about what the issue was, Mrs. Gillick explained that the issue was that her daughter was under 16 years of age.

But the doctor turned her down saying, “I’m sorry, I cannot give you any information about your daughter, I am bound to maintain confidentiality of all my patients.”

Mrs. Gillick in distress said, “You cannot do this.  By doing this, you are promoting under age sexual activities.  My daughter is still a minor.  I shall take you to Court for this.”

And the matter went to the Court….

It was a matter between the West Norfolk & Wisbech Area Health Authority and Mrs. Gillick.

Now it was a question of the rights of the adolescents.  Adolescents who are no longer children, but the law does not regard them as adults.

The Court decided in favour of the Health Authority saying, “Whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required.

The Case was then taken to the High Court which again dismissed Mrs. Gillick’s claims.

The case was reapplied to the House of Lords.  Judgement was once again in favour of the Health Authority.  Judgement in the Gillick case at the House of Lords is referred to as the ‘test of Gillick Competency’.

Lord Fraser at the House of Lords gave his judgement to decide on the criteria for Contraceptive Prescription for minors, which is better known as the ‘Fraser Criteria’.

Test of Gillick Competency

As discussed earlier, judgement in the Gillick case at the House of Lords is referred to as the ‘test of Gillick Competency’.

There are two components to assess in  Gillick Competency :-

  1. Minor must understand what is involved, including the risks and consequences of sexual intercourse, such as pregnancy or STI.
  2. Minor understands the nature of the advice which is being given.

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Fraser Criteria

Underlying thought :-

Lord Fraser and the House of Lords thought that if the rights of these adolescents are not considered, they may continue to have sex and if they are forced to involve their parents, this might stop them from visiting the health facilities for medical advise and help.  Thinking this he gave his judgement about contraceptive prescription in case of minors, which is better regarded as the ‘Fraser Criteria’.

Fraser Criteria :-

So the Fraser Criteria states that a doctor could proceed to give contraceptive advice and/or treatment to a girl under 16 years of age, if the girl is ‘Fraser Ruling Competent‘, which means that :-

  1. The doctor cannot persuade her to inform her parents.
  2. That the girl is very unlikely to continue to have sexual intercourse with/without contraceptive advice and/or treatment.
  3. That her best interests require him to give her contraceptive advice and/or treatment without parental consent.
  4. The girl (even though under 16 years of age) will understand the advice.
  5. Her physical or mental health are likely to suffer without contraceptive advice and/or treatment.

Well all this is about the story behind it and the criteria stated, now lets proceed to the application of this knowledge in a clinical setup.

Application in a clinical setup

Lets see how to approach a girl less than 16 years who comes in the clinic for contraceptive advice.

  1. If the girl is less than 13 years of age – There is a need to identify unlawful sex or abuse in such cases.  These cases are referred to the Child Safety Services.  However, many references say that the girl would be referred to child safety services after the advice regarding contraception at the clinical encounter.
  2. Girl’s age between 13 and 16 years of age –
    • Assess Gillick Competence – which means assessing if the minor understands the situation in all its perspectives.  Sample questions to assess Gillick Competence are :-
      • Can you explain to me why do you need contraception?
      • What would happen if you do not use contraception?
      • Do you know some of the risks of being in a sexual relationship?

Only if the minor understands (or is Gillick Competent), then the Fraser Criteria would apply.

3. So the conversation between the Consultant and the minor to apply Fraser Criteria may include the following questions :-

    • Do you think you can try and talk to your parents about your relationship?

If the minor agrees to inform her parents, then the Fraser Criteria does not apply and she is asked to get her parents along and discussion goes on further after that.

    • How would you feel if you are not prescribed contraception today?
    • If you are not prescribed contraception, do you think that would stop you from being in a sexual relationship?

If the minor cannot be persuaded to inform parents and even non – prescription of contraceptive would not stop her from being in a sexual relationship, Fraser Criteria states to go ahead and prescribe contraceptives to her.

Importance of Partner's age

All said and done, the minor groups of individuals are at an increased risk of being subject to abuse.  So the things don’t end here.

Therefore, it is important to consider the partner’s age in these cases.  If a minor is in a sexual relationship with a major, it is important to note the years through which they have been in the relationship.

It may be that they were both minors at the onset of the sexual relationship and the partner has become an adult after that.  In such cases, the above rule applies.  (However, this needs to be weighed on the basis of other local factors).

However, if the partner is a major (was always a major, even at the start of the sexual relationship), then this may be a sign of an abusive relationship.  It is the older individual who commits an offence in such cases.  Such cases need to be referred to the legal authorities or the child protection services.

Right to refuse treatment?

Gillick Competence and Fraser Criteria give the minor individual the right to consent to treatment as it is in the best interests of their health.  However, the opposite, i.e., the right to refuse treatment is not usually provided to the minor individual. 

Gillick Competence also stated that parents still retain the power to consent to medical treatment when their Gillick Competent child refuses treatment.  The minor is also required to have  non – fluctuating competence.  Thus, consent is a key and there are multiple key holders.

Conclusion

The Department of Health ultimately staates that it is necessary to weigh up what any disclosure to police/social services is intended to achieve and what are the potential benefits to the young person’s well being.

That means an ‘Individualistic Approach’ in all the cases.

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