Can competence ever be presumed?
Yes. All people aged 16 and over are presumed in law to be competent to give their consent to medical treatment and to the release of information in England, Scotland, Wales and Northern Ireland (see Card 12 for more information on 16-17 year olds who lack mental capacity).
Can a young person be competent under the age of 16?
Yes, but this needs to be assessed in each case on a continual basis. Doctors should aim to involve all children and young people in decisions relating to their medical treatment. It is important to recognise when a young person is able to make a valid choice about a proposed medical intervention or disclosure of personal medical data and is therefore competent to make a personal decision. Doctors should not judge the ability of a particular child or young person solely on the basis of his or her age.
For a young person under the age of 16 to be competent, s/he should have:
- the ability to understand that there is a choice and that choices have consequences
- the ability to weigh the information and arrive at a decision
- a willingness to make a choice (including the choice that someone else should make the decision)
- an understanding of the nature and purpose of the proposed intervention
- an understanding of the proposed intervention’s risks and side effects
- an understanding of the alternatives to the proposed intervention, and the risks attached to them
- freedom from undue pressure.
Competent under 16 year olds are sometimes referred to as being Gillick competent. In England, Wales and Northern Ireland children who are aged 12 or over are generally expected to have competence to give or withhold their consent to the release of information.
In Scotland, anyone aged 12 or over is legally presumed to have such competence (see Card 8 on children and young people’s health information).
Who should assess competence?
GPs who have known the young patient for a long time are well placed to assess their development and maturity but because these change, it is unwise to rely on any assessment that is not contemporaneous.
Health professionals who assess competence need to be skilled and experienced in interviewing young patients and eliciting their views without distortion.
The treating doctor may be the most appropriate person, but other members of the health care team who have a close rapport with the patient may also have a valuable contribution to make.
How can competence be promoted?
When assessing a child’s competence it is important to explain the issues in a way that is suitable for their age. A young patient may be competent to make some, but not all decisions, and clinical staff should promote an environment in which young patients are enabled to engage in decisions as much as they are able. The child or young person’s ability to play a full part in decision-making can be enhanced by allowing time for discussion.
- General Medical Council. 0-18 years: guidance for all doctors. Available at www.gmc-uk.org
- BMA. Consent, rights and choices in health care for children and young people. More information.
Card 2: Assessing competence