In defence of "Gillick competence" on blockers

Submitted by AWL on 12 October, 2021 - 5:18
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The decision in the Gillick case allowed doctors to decide when children were able to consent to medical treatment. Doctors are also generally trusted to decide which treatments would be of benefit to their patients.

In the case of puberty blockers, the practice established by the NHS specifies that both the child and the parents must consent to treatment.

Jack McDonough (Solidarity 608) argues that in defending the idea that children can consent to medical treatment including puberty blockers (Gillick competence), I am also proposing that under 16s should be able to consent to sexual intercourse with older people. The two circumstances are very different.

Doctors, as well as other health professionals, are trained to determine whether a patient is able to consent. The process of gaining consent for medical treatment is the subject of guidelines. The consent is documented. The doctor only proposes treatment in the best interest of patients, and consent can be withdrawn at any time. The doctor has to justify their decisions to peers on a daily basis.

In healthcare generally, a patient’s ability to weigh up information and make decisions is known to depend on the type of decision that needs to be made. Measures are taken to ensure that the patient is able to understand, and make that decision themselves wherever possible.

The outcome of Gillick gave doctors the power to determine if the child is able to consent, through their assessment. It did not depend on the child’s age.

The “consent” process when having sexual intercourse is very different. When an adult has sex with a child, they are not specially trained. They are seeking to gain pleasure themselves. It cannot be assumed they are acting in the child’s best interest. There are no safeguards against coercion.

The state has decided that having sexual intercourse is not in a child’s best interest, and that consent given by someone under 16 is not valid, and is only valid for 16-18 year olds in certain circumstances. Whatever about details, the principle here is reasonable. It helps prevent children from being abused by taking away the defence that “they consented”. In such cases, there is no trusted agent, such as a doctor to ensure that their consent was valid,

Gillick is the key legal precedent that allows doctors to decide whether children can consent to contraception. If Jack believes that doctors are not able to judge this in the case of puberty blockers, it should follow they cannot judge it when giving girls under 16 years old access to the morning after pill.

That is the point. To deny trans children the possibility of informed consent is also an attack on the principle of Gillick competence, and thus on young women.

Lord Scarman, one of the Lords involved in the Gillick case, put it like this:

“It can be said by way of criticism of this view of the law that it will result in uncertainty and leave the law in the hands of the doctors. The uncertainty is the price which has to be paid to keep the law in line with social experience, which is that many girls are fully able to make sensible decisions before they reach the age of 16.

“I accept that great responsibilities will lie on the medical profession. It is, however a learned and highly trained profession regulated by statute and governed by a strict ethical code which is vigorously enforced. Abuse of the power to prescribe contraceptive treatment for girls under the age of 16 would render a doctor liable to severe professional penalty.

“The truth may well be that the rights of parents and children in this sensitive area are better protected by the professional standards of the medical profession that by a priori legal lines of division between capacity and lack of capacity to consent, since any such general dividing line is sure to produce in some cases injustice, hardship and injury to health”.

Angela Driver, London

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