“Are children and young people under 16 capable of making a decision about their gender?”
This is a question which often comes up in the debate over the treatment of gender variant youth. It is an emotive question and one with which the media is particularly keen to engage. But while the question in this instance relates specifically to gender transition, the broader issue of body autonomy for those under 16 is one which has precedence. How much control should a young person be permitted to have over their identity, the way they wish to live their life, access to different interventions and altering their journey as time progresses?
‘Gillick competence’ is a term originating in England and is used in medical law to decide whether a young person (under 16 years of age) is able to consent to his or her own medical treatment, without the need for parental permission or knowledge. It helps people who work with children and adolescents to balance the need to listen to the wishes of a youngster, with the responsibility of keeping them safe.
Gillick Competency is based on the 1985 decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority where, in summarising the ruling, Lord Scarman stated that a child could consent to treatment, if he or she fully understood the associated implications:
“As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.” – Lord Scarman
“parental right yields to the child’s right to make his own decisions when he reaches sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring a decision.”
The ruling in this case was in relation to a decision on the part of the minor to be prescribed contraception, something to which their parent was opposed.
The ruling means that minors, under the right circumstances, are deemed capable of making decisions about their own physical wellbeing and medical intervention.
How is Gillick competency assessed?
When considering whether a minor has the competence to decide about the proposed intervention, practitioners base a decision on a rounded view of the individual.
Questions which facilitate the assessment of whether or not a child or young person has the capacity to make a decision include:
– Does the child understand the information that is relevant to the decision that needs to be made?
– Can the child hold the information in their mind long enough so that they can use it to make the decision? Is the child able to weigh up that information and use it to arrive at a decision?
– Is the child able to communicate their decision (by talking, using sign language or any other means)?
A minor may lack the competence to make the decision in question either because they have not as yet developed the necessary intelligence and understanding to make that particular decision; or for another reason, such as because their mental disorder adversely affects their ability to make the decision. In either case, the child will be considered to lack Gillick competence.
Are neurodiverse young people capable of being Gillick competent?
Gillick competency is dependent on the ability of a young person to understand, retain and communicate. Having a diagnosis of autism (or any other condition) does not intrinsically mean that a young person wouldn’t be competent to be involved in decision making. All young people are evaluated on a case-by-case basis and assessed accordingly by a qualified medical professional.
The Mental Health Act 1983: Code of Practice is clear about the right to consent by a young person in determining their own medical treatment:
“Parental consent should not be relied upon when the child is competent or the young person has capacity to make the particular decision. The effect of section 131(4) of the Act in relation to the informal admission to hospital of a 16 or 17 year old, who has capacity, is that parental consent cannot be relied upon to override that young person’s decision about their admission. In relation to decisions about such a young person’s treatment, it is inadvisable to rely on the consent of a person with parental responsibility to treat a young person who has capacity to make the decision and has refused the treatment. Similarly, in relation to children, it is not advisable to rely on the consent of a parent with parental responsibility to admit or treat a child who is competent to make the decision and does not consent to it. Although in the past the courts have found that a person with parental responsibility can overrule their child’s refusal, such decisions were made before the introduction of the HRA and since then court decisions concerning children and young people have given greater weight to their views.”
What this means in real terms is that if a child is assessed as being able to understand the medical intervention that is available to them, and is able to understand the consequences of either having that treatment, or not having that treatment, then their opinion must be listened to. They must be able to have the opportunity to have an input on decisions that are made about the treatment, and their wishes are more important than those of their parent. A parent can not prevent a young person from having a treatment, or force them to have a treatment. The position of a young person who has the capability to understand and make decisions, must be given priority.
Distress at having gender dysphoria is not reason to remove consent to treatment
Many young people suffering from gender dysphoria are distressed by the changes their bodies go through at puberty, hence their desire to press pause on the development. We would not say that a 16 year old suffering distress from an unwanted pregnancy couldn’t consent to an abortion. Similarly, a 16 year old suffering from gender dysphoria, due to bodily changes during puberty, should not be denied the legal right of consent.
Why is preserving the right to Gillick Competency so important?
The key question in this debate is at what stage a minor becomes mature enough to make their own decisions in relation to their own body. Of course there is no blanket response; everyone is different. Gillick Competency allows for that difference. Without it, a medical professional would be able to deny a minor’s request on the basis of a parents’ ideological wishes – consider the implications of a parent being able to prevent a minor from having chemotherapy, for example, or consenting to immunisation.
Indeed the latter has recently been the topic of debate with young people discussing how to get vaccinated against their ‘anti-vax’ parent’s wishes.
If a young person has the capacity to make a decision about their own body, and they are deemed reasonable and knowledgeable on the subject matter and the implications of the treatment, then it is their right to make that decision. No one should have the power to override it. In the current climate of intense debate and fear over medical interventions for transgender youth, we must listen to the voices of young people and make sure their wishes are properly taken into account.
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