Competence
 | Buchanan, Allen E. and Brock, Dan W. (1990). Deciding for Others: The Ethics of Surrogate Decision making, Cambridge University Press, Cambridge. (Chapter 5, Minors). |
Country: US
Discipline: Philosophy/Bioethics
Summary:
An important chapter about children’s competence – the most useful and the most comprehensive treatment of children’s competence in the bioethics literature. The chapter is about minors’ competence to decide about their medical treatment or care rather than competence to participate in research but ‘[m]uch of the analysis’ could be applied to research even though as the author’s note, ‘research raises some distinct issues of its own’ that are not addressed in the book (p.217). The chapter focuses on conceptual issues and includes empirical data e.g. developmental evidence into the analysis where appropriate. The purpose is to ‘ascertain whether the general policy presumption of minors’ incompetence for health care decision making is sound, or whether it ought to be revised’.
The chapter discusses values at stake in competence decisions:
- The child’s well-being
- The child’s self-determination
- The parents’ interest in making decisions concerning their children.
Buchanan and Brock also make a distinction between children’s competence and children’s decisional authority and claim this is an ‘important and inadequately appreciated difference’. Competence together with an informed and voluntary decision does not ‘fully settle the issue of the child’s right to decide’ (pp.234-5). They critique appeals to the ‘family’s interest’ or ‘familial objectives’ and claim it is far more conducive to clear thinking to talk in terms of ‘the legitimate interests of other individuals within the family’. They conclude with a section on ‘implications for medical practice and legal policy regarding children’s competence’. This includes discussion of emancipated minors and mature minors.
Children are sometimes compared with previously competent adults. Brock and Buchanan question the usefulness of this comparison in the context of determining decisional authority and parent’s interest in making important decisions about their children’s welfare (pp.233-4).
| Wheeler R. (2006). Gillick or Fraser? A plea for consistency over competence in children, BMJ. 332(7545):807. |
Country: UK
Discipline: Paediatrics/Neonatal surgeon
Summary:
The author argues that the tendency to describe the assessment of competence in children in terms of either Gillick competence or the Fraser guidelines ‘as if they were interchangeable’ is wrong. This brief article sets out the difference.
A false belief or ‘urban myth’ has emerged in relation to the term ‘Gillick competence’. The myth is that Mrs Gillick (the woman after whom ‘Gillick competence’ was named) does not want to be associated with the objective test of a child’s competence. For this reason, some people think that the test should be renamed the Fraser guidelines. Fraser was one of the Law Lords responsible for the Gillick judgment – but his concern was with the welfare of girls who were given contraceptive advice without the knowledge of their parents. His ‘guidance is narrower’ and relates only to guidance for children receiving contraceptive advice.
The author corresponded with Mrs Gillick and is ‘clear ‘that she “has never suggested to anyone, publicly or privately, that [she] disliked being associated with the term ‘Gillick competent’”.
| Hunter, D & Pierscionek, B.K. (2007). Children, Gillick competency and consent for involvement in research. , Journal of Medical Ethics. 33(11):659-662 |
Country: UK
Discipline: Bioethics
Summary:
This is a clearly written article which explains why the test of Gillick competency which is applied to minors in the medical treatment setting is generally not applicable in the research setting. The authors argue that there is a 'morally relevant difference' between consent to medical treatment and consent to research. Healthcare and medical treatment is aimed at benefiting recipients whereas 'the aim of research is not to benefit the participants directly, but to answer some research question' i.e. any benefits to participants 'can be considered incidental'. There is also a risk that the test could be abused in the research setting where 'vested' interests exist e.g. the impartiality of the person administering the test may be affected by 'the quest for results'. In the treatment context, even if the test of Gillick competency should be wrongly applied, the aim is benefit to the child. The authors argue that there are 'two exceptional research situations in which Gillick competency might be legitimately applied' and these are: (1) when the research 'is likely to generate significant advantages fro the participants while exposing them to relatively minor risks', and (2) situations where 'parental consent would hinder or seriously bias very important research' and the research poses minimal risk of harm. Two further requirements for these situations suggested by the authors are: (i) the research application should be reviewed by a body external to the institution where the research will be conducted and (ii) Gillick competency should be assessed by someone who is not involved in the research.