Gillick competence and the mature minor

Case study

Amy is 15 years old and has been seeing her boyfriend for nine months. She has been sexually active for about four months, using different forms of contraception. She was attending Dr Newman – the family doctor – to seek advice on safe sex practices, including consideration of the oral contraceptive pill. Amy’s mum happened to be at the practice at the same time, also waiting to see Dr Newman. After an awkward silence, Amy and her mum attended separate consultations.

The following day, Amy’s mum called the practice and demanded a copy of her daughter’s medical records. She told the receptionist she didn’t approve of the relationship, and was concerned that her daughter was having sex and seeking contraception advice.

Discussion

Put simply, if a child is a mature minor (or ‘Gillick competent’), they’re entitled to the same confidentiality about their health information as an adult patient.

A child can consent to their own treatment if they “achieve a sufficient understanding and intelligence to enable [them] to understand fully what is proposed”.1

While a minor may be considered Gillick competent for one procedure, this assessment cannot be similarly applied to all episodes of treatment. Each presentation must be assessed individually.
There are some circumstances that require specific consent, such as in NSW where the consent of the Guardianship Tribunal is required for ‘special medical treatment’ in someone aged under 16 years.

While those under 18 years require an assessment of capacity to consent, it’s generally accepted that those aged 16 or older do have the capacity to consent. In some jurisdictions, laws allow for those 14 years and over (NSW) and 16 years and over (SA) to consent to their own treatment.

Checklist for doctors

The following is a non-exhaustive list of factors to be considered when determining whether a child is a mature minor:
• age and maturity
• circumstances of presentation
• medical and social history
• the nature, consequences and implications of the proposed treatment, and the patient’s ability to understand this
• degree of independence
• family or other social dynamics
• the type and sensitivity of the information to be disclosed
• the complexity and nature of the treatment (e.g. elective, therapeutic or emergency, minor or major).

“It is that parental right yields to the child's right to make (their) own decisions when (they reach) a sufficient understanding and intelligence to be capable of making up (their) own mind on the matter requiring decision.”

Source: Per Scarman LJ at [186] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112

References

1. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
2. OAIC – Australian Privacy Principles Guidelines – Chapter B: Key Concepts; at B61: oaic.gov.au/privacy/australian-privacy-principles/australian-privacy-principles-guidelines/chapter-b-key-concepts
3. Services Australia provides access to a Medicare Card from the age of 15: servicesaustralia.gov.au/what-happens-when-your-child-turns-15?context=60007
4. MyHealthRecord presumes a 14-year-old can control access to their record: digitalhealth.gov.au/initiatives-and-programs/my-health-record/getting-started/access-or-create-a-childs-record

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