Fraser Guidelines Essay

Gillick competence is a term originating in England and is used in medical examination jurisprudence to decide whether a kid (16 years or younger) is suitable to accede to his or her own medical preaching, without the need for arouseal permission or knowledge. The standard is based on a decision of the household of Lords in the case Gillick v West Norfolk and Wisbech Area Health Authority 1985 3 All ER 402 (HL). The case is binding in England and Wales, and has been approved in Australia, Canada and New Zealand.Similar provision is made in Scotland by The Age of Legal Capacity (Scotland) Act 1991. In Northern Ireland, although separate legislation applies, the and then Department of Health and Social Services Northern Ireland stated that there was no reason to theorise that the household of Lords decision would not be followed by the Northern Ireland Courts. Contents hide 1 The Gillick decision 2 Subsequent developments 3 Australian law 4 Confusion regarding Gillick ca pability 5 Fraser Guidelines 6 References 7 Link edit The Gillick decision The Gillick case involved a health departmental circular advising doctors on the contraceptive method of minors (for this purpose, under sixteens). The circular stated that the prescription of contraception was a matter for the doctors discretion, and that they could be prescribed to under sixteens without parental consent. This matter was litigated because an activist, Mrs. Victoria Gillick (nee Gudgeon), ran an active campaign against the policy.Mrs Gillick, a pose of ten (five girls, five boys), sought a declaration that prescribing contraception was illegal because the doctor would commit an offense of encouraging sex with a minor, and that it would be treatment without consent as consent vested in the parent. The growth before the House of Lords was only whether the minor involved could give consent. Consent here was considered in the bounteous sense of consent to battery or assault in the absence of patient consent to treatment a doctor, even if well-intentioned, might be sued/charged.The House of Lords focussed on the issue of consent quite than a notion of parental justlys or parental powers. In fact, the court held that parental the right ways did not exist, otherwise than to safeguard the best interests of a minor. The majority held that in some circumstances a minor could consent to treatment, and that in these circumstances a parent had no power to veto treatment. Lord Scarman and Lord Fraser proposed middling different tests (Lord Bridge agreed with both). Lord Scarmans test is generally considered to be the test of Gillick competency.He involved that a child could consent if they fully understood the medical treatment that is proposed As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen give have medical treatment halts if and when the child achieves sufficient sagaciousness and intelligence to understand fully what is proposed. Lord Scarman The ruling, holds particularly significant implications for the legal rights of minor children in England in that it is broader in scope than merely medical consent.It lays down that the self-assurance of parents to puff decisions for their minor children is not absolute, entirely diminishes with the childs evolving maturity except in situations that are regulated otherwise by statute, the right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own top dog on the matter requiring decision. edit Subsequent developments The decisions in Re R and Re W (especially Lord Donaldson) play off the Gillick decision somewhat.From these, and subsequent cases, it is suggested that although the parental right to veto treatment ends, parental powers do not terminate as suggested by Lord Scarman in Gillick. However, these are only obiter statements and were made by a turn down courts therefore, they are not legally binding. However, the parens patriae jurisdiction of the court form available allowing a court invest to force treatment against a childs (and parents) wishes. A child who is deemed Gillick competent is able to prevent their parents viewing their medical records.As such, medical staff will not make a disclosure of medical records of a child who s deemed Gillick competent unless consent is manifest. In most jurisdictions the parent of an emancipated minor does not have the ability to consent to therapy, regardless of the Gillick test. Typical positions of emancipation mount when the minor is married (R v D 1984 AC 778, 791) or in the military. The nature of the standard remains uncertain. The courts have so far declined invitations to define rigidly Gillick competence and the individual doctor is free to make a decision, consulting peers if this may be helpful, as to whether that child is Gillick competent.Australian law The Australian heights Court gave specific and strong approval for the Gillick decision in Marions Case 175 CLR 189. The Gillick competence doctrine is part of Australian law (see e. g. DoCS vY 1999 NSWSC 644). There is no express authority in Australia on Re R and Re W, so whether a parents right terminates is unclear. This lack of authority reflects that the reported cases have all involved minors who have been found to be incompetent, and that Australian courts will make decisions in the parens patriae jurisdiction regardless of Gillick competence.In South Australia and New South Wales legislation clarifies the putting green law, establishing a Gillick-esque standard of competence but preserving concurrent consent between parent and child for the ages 1416. edit Confusion regarding Gillick competency On May 21 2009, confusion arose between Gillick competency, which identifies under-16s with the capacity to consent to their own treatment, and the Fraser guidelines, which are concerned only with contraception and focus on the desirability of parental involvement and the risks of open sex in that area.A persistent rumour arose that Victoria Gillick disliked having her name associated with the assessment of childrens capacity, although a recent editorial in the BMJ debunks this idea, quoting Victoria Gillick as saying that she has never suggested to anyone, publicly or privately, that she disliked being associated with the term Gillick competent . 1 edit Fraser Guidelines It is lawful for doctors to provide contraceptive advice and treatment without parental consent providing certain criteria are met.These criteria, known as the Fraser Guidelines, were laid down by Lord Fraser in the House of Lords case and require the schoolmaster to be satisfied that the young individual will understand the professionals advice the young person cannot be persuaded to inform their parents the young person is likely to begin, or to address having, sexual intercourse with or without contraceptive treatment unless the young person receives contraceptive treatment, their physical or mental health, or both, are likely to contract the young persons best interests require them to receive contraceptive advice or treatment with or without parental consent. Although these criteria specifically refer to contraception, the principles are deemed to throw to other treatments, including abortion.Although the judgement in the House of Lords referred specifically to doctors, it is considered to apply to other health professionals, including nurses. It may also be interpreted as covering youth workers and health promotion workers who may be grown contraceptive advice and condoms to young people under 16, but this has not been tested in court. If a person under the age of 18 refuses to consent to treatment, it is possible in some cases for their parents or the courts to overrule their decision. However, this right can be exercised only on the basis that the eudaimonia of the young person is paramount. In this context, welfare does not simply mean their physical health.The psychological effect of having the decision overruled would have to be interpreted into account and would normally be an option only when the young person was thought likely to suffer grave and irreversible mental or physical harm. Usually, when a parent wants to overrule a young persons decision to refuse treatment, health professionals will apply to the courts for a net decision. An interesting aside about the Fraser guidelines is that many regard Lord Scarmans judgment as the preeminent judgment in the case, but because Lord Frasers judgment was shorter and set out in more than specific terms and in that sense more accessible to health and welfare professionals it is his judgment that has been reproduced as containing the core principles.