Nicholas Gabriel Lim Gillick Competence
Parental rights yields to the child’s right to make his own decisions
In 2013, the Singapore Medical Association (SMA) published the third installment of a series on informed consent articles called Consent in Medical Practice 3 – Dealing with Persons Lacking Capacity. The authors were, Dr T Thirumoorthy and Dr Peter Loke from the SMA Centre for Medical Ethics & Professionalism.
This post aims to capture only the relevant portions pertaining to minors where their informed consent is concerned. According to the authors, “as children and minors are at various stages of maturity, they are mostly financially dependent on adults. This does not qualify them to be fully autonomous individuals for medical decision making. The legal right to give consent for children lies with persons of legal parental responsibility”.
They further mentioned that, “children show a wide range of evolving capacity, depending on their age, maturity level and psychological state. Hence, clinicians should help them understand their medical conditions as much as possible. Even though the legal right to give consent for children lies with those of parental responsibility, the clinicians should involve the minors in all aspects of medical decision making as well”.
I am not sure how many parents or legal guardians are aware, in Singapore, your child is legally considered an adult when he or she reaches the age of 21 years old. However, the legal age to give consent for medical procedures is not defined anywhere in Singapore law. There are no statute law that defines it. The authors reported that, “wherever feasible and reasonable, parents or guardians of minors should be directly involved in giving consent”.
The doctors advised that it is important that minors and children should not have beneficial medical treatment delayed unnecessarily while waiting for parents to consent. While the consent of any one person with legal parental responsibility is valid and sufficient, this decision must be in the best interests of the child. If consent is refused against the clear best interests of the child, the treating doctor has a duty to go ahead with treatment if it is an emergency. If urgency is not of the essence, the clinician can seek a court order for treatment if attempts to convince the parents fail.
“Gillick competence in children is a concept in English common law where the parental right yields to the child’s right to make his own decisions (Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402). The doctor has to assess and come to a judgement that the minor who is aged 14 or above has sufficient understanding and intelligence to enable him to understand the proposed procedure and its consequences. If so, the minor’s consent can be accepted as valid. There is no specific legal guidance or criteria for judging capacity in minors and how Gillick competence is determined. Common law jurisdictions, including Singapore, have largely accepted the concept of Gillick competence to date, although this has not been specifically tested in the Singapore courts yet.”
Nicholas Gabriel Lim 