At the time of press, there has been increasing speculation that the UK chief medical officers will recommend that the Government should offer the coronavirus vaccination to those in the 12-15-year age group. This has prompted the Government's vaccines minister to say that, where competent, vaccination will go in favour of what the minor child decides (Elgot, 2021). Parent groups have responded by arguing that to proceed in the face of parental objection would be wrong and a breach of Article 8 of the European Convention on Human Rights, the right to a private and family life, home and correspondence.
There is no doubt that a key barrier generally to immunisation in this age group is the reliance on parental consent before proceeding. The vaccines minister appears to be arguing that this barrier can be overcome by taking consent from the child under the rule in Gillick (Gillick v West Norfolk and Wisbech AHA [1986]).
Children and the law of consent
The United Nations Convention on Children's Rights defines a minor as any person under the age of 18 years. It requires that childhood is recognised as a developmental period and that our domestic laws must be developed ‘in a manner consistent with the evolving capacities of the child’ (United Nations, 1989, Article 5). As children grow and develop, their maturity and intelligence, their views and wishes should be given greater weight and their development towards adulthood respected and promoted.
This key principle is reflected in consent law applied to children. Kennedy and Grubb (1998) argue that children pass through three developmental stages on their journey to becoming an autonomous adult:
- The child of tender years who relies on a person with parental responsibility to consent to treatment
- The ‘Gillick competent’ child
- Young persons aged 16 and 17 years old who are able to consent to treatment as if they ‘were of full age’ (Family Law Reform Act 1969, section 8; Mental Capacity Act 2005, section 1).
The Gillick competent child
The issue of whether a child under 16 has the necessary competence to consent to examination and treatment was decided by the House of Lords in Gillick v West Norfolk and Wisbech AHA [1986], where a mother of girls under 16 objected to Department of Health advice that allowed doctors to give contraceptive advice and treatment to children without parental consent. Their Lordships held that a child under 16 had the legal competence to consent to medical examination and treatment if they had sufficient maturity and intelligence to understand the nature and implications of that treatment.
Gillick or Fraser competence: an urban myth
Wheeler (2006) argues that something of an urban myth has emerged over the use of the term ‘Gillick competence’ and that the objective test of a child's competence is called ‘Fraser competence’ by some health professionals. Alteration of an established legal test would be unusual, and cause confusion and so Gillick competence is therefore the correct term, still used by judges and health professionals, to identify children aged under 16 who have the legal competence to consent to examination and treatment, provided they can demonstrate sufficient maturity and intelligence to understand and appraise the nature and implications of the proposed treatment, including the risks and alternative courses of action.
Assessing Gillick competence
Nurses must be confident in applying the rule in Gillick if the right of the child to consent to vaccination is to be fulfilled, as endorsed by the vaccine minister.
The aim of Gillick competence is to reflect the transition of a child to adulthood. Legal competence to make decisions is conditional on the child's gradually acquiring both:
- Maturity: that takes account of the child's experiences and the child's ability to manage influences on their decision making such as information, peer pressure, family pressure, fear and misgivings, and:
- Intelligence: that takes account of the child's understanding, ability to weigh risk and benefit, consideration of longer term factors such as effect on family life and on such things as schooling.
Maturity is a developmental process. It considers the emotional and mental age of the child as opposed to their chronological age. It does not fluctuate from day-to-day or week-to-week.
Decision-making competence does not simply arrive with puberty; it depends on the maturity and intelligence of the child and the seriousness of the treatment decision to be made.
When assessing Gillick competence for vaccines, nurses are evaluating a child's:
- Ability to understand that there is a choice to be made and that choices have consequences
- Willingness and ability to make a choice (including the option of choosing that someone else makes treatment decisions)
- Understanding of the nature and purpose of the procedure
- Understanding of the procedure's risks and side-effects
- Understanding of any alternative to the procedure and the risks attached to them
- The consequences of no treatment
- Wider long-term consequences of treatment (family, school, welfare)
- Freedom from pressure.
Although nurses are required to consider several factors when assessing Gillick competence, a child's competence is dichotomous, that is either they have the competence to consent to vaccination at the time of the assessment or they do not. Where, on balance, a nurse is satisfied that a child is Gillick competent then the consent is as effective as that of an adult and vaccination can proceed. It cannot be overruled by a parent.
Article 8 and a minor child's right to consent and confidentiality
Article 8 of the European Convention on Human Rights (1950) is a qualified right to respect for a private and family life and was considered in the context of the treatment of minors in R (Axon) v Secretary of State for Health [2006]. The case concerned a child's right to consent to a termination of pregnancy without her parents being informed. It was held that the principles and approach in Gillick applied more generally to treatment and advice to minors. It is still the case, therefore, that nurses should try to persuade the child to discuss the vaccination or allow the nurse to discuss vaccination with their parents in the first instance. Where the child is competent, then the High Court in Axon held that, where the child refuses to allow parents to have the information, they have the same right to confidentiality as an adult and it was not a breach of a parent's Article 8 rights if a health professional withholds information relating to the vaccination of the child. Parents do not have exclusive rights to consent on behalf of a child where the child is Gillick competent.
A child refusing consent
The vaccine minister's view that vaccination would be based on the decision of a competent child suggests that if the child refused the immunisation, then it would not proceed.
In law, this is not the case for the courts accept that no minor is a wholly autonomous (Re M (A Child) (Refusal of Medical Treatment) [1999]). Although a competent child's consent cannot be overridden by a parent, where the same child refuses vaccination then the nurse can obtain consent from another person with authority, this is usually a parent.
In Re W (A minor)(Medical treatment court's jurisdiction) [1992] the Court of Appeal likened consent to a flak jacket that protects nurses from claims of trespass to the person. They can acquire it from a Gillick competent child or person with parental responsibility, but they only need one flak jacket (one consent) and as long as they have one they can proceed.
Consent gives lawful permission to proceed with vaccination, but the duty to proceed will be based on a nurse's assessment of the risk and best interests of the welfare of the child. So while in law a parent can consent to a child's immunisation, the courts have found that, in the face of resistance from the child, the immunisation in practice can be very difficult to administer safely (Hickey, 2013).
Conclusion
Consent is essential to the propriety of treatment and is necessary to meet the requirements of the law. Treatment cannot generally proceed without it.
The United Nations Convention on the Rights of the Child requires that the evolving capacities of children are respected and this requirement is reflected in the law of consent where a child with the necessary maturity and intelligence can give valid consent to examination or treatment.
If the coronavirus vaccine is offered to the 12-15 year group, nurses will need to be confident in assessing a child's Gillick competence in order to ensure that the child's rights are respected. That assessment of Gillick competence requires the nurse to evaluate the child's maturity and intelligence when seeking consent. In doing so the nurse must, on balance, be satisfied that the child understands that there is a decision that needs to be made and that decisions have consequences and that the child understands the benefits and risks of treatment and the possible wider implications of the treatment. It would not be a breach of a parent's Article 8 rights to withhold information from them about vaccination if asked to do so by a Gillick competent child.
KEY POINTS
- The UK Government's vaccine minister has argued that a competent child can consent to the coronavirus vaccine in possible defiance of their parents wishes
- Children under 16 have the legal competence to consent to examination and treatment if they have sufficient maturity and intelligence to understand the nature and implications of that treatment
- Nurses must be confident in applying the rule in Gillick if the rights of children to consent to vaccination is to be fulfilled
- Where a competent child refuses consent then a nurse can obtain it from a person with parental responsibility