Gillick Competence
1. Core legal principles
| Principle | Practical meaning for clinicians | Key authorities |
|---|---|---|
| Age of majority = 18 y | A person ≥18 y is presumed fully competent to consent to all health care across every Australian jurisdiction. | E.g. Minors (Property and Contracts) Act 1970 (NSW) s6; equivalent “minor < 18 y” definitions in all State/Territory statutes. |
| Gillick (mature-minor) test | A young person <18 y may self-consent if they demonstrate sufficient maturity, intelligence and understanding of the specific decision. Capacity is decision- and risk-specific. | Gillick v West Norfolk AHA [1986]; adopted by the High Court in Secretary, Dept Health & Community Services v JWB & SMB (“Marion’s Case”, 1992). |
| Parens patriae / court oversight | Any court (usually a Supreme Court or the Family Court) can override a child’s or parent’s decision if necessary to safeguard the child’s best interests—especially for life-saving or high-risk, irreversible interventions. | Marion’s Case; see also Re Imogen & subsequent Family Court cases below. |
2. Statutory “safe-harbour” age
| State / Territory | Statutory “safe-harbour” age (defence to assault / battery) | Key caveats & practical notes | Sources |
|---|---|---|---|
| NSW | ≥ 14 yrs – clinician has a statutory defence if the child personally consents (Minors (Property and Contracts) Act 1970 s 49(2)). | – Does not remove the need to be satisfied the young person actually comprehends the treatment. – Defence is unavailable for “special medical treatment” (e.g. sterilisation) that still requires tribunal/court authorisation. – <14 yrs → full Gillick analysis or court review if dispute. | racgp.org.au classic.austlii.edu.au |
| SA | ≥ 16 yrs – a person “may decide freely for themselves” (Consent to Medical Treatment & Palliative Care Act 1995 s 6). | – <16 yrs: two medical practitioners must each certify (a) Gillick-level understanding and (b) best interests or seek court/Guardianship Board direction. – Parent/guardian consent remains valid for routine therapy when the child lacks capacity. | www5.austlii.edu.au |
| QLD | None in legislation. Qld Health immunisation policy says a 15 yr + child is “normally expected” to have capacity, but every decision still needs a Gillick assessment. | – For contentious care (e.g. gender-affirming surgery, high-risk pharmacotherapy) courts will intervene if disagreement persists. – Document capacity reasoning in the record. | health.qld.gov.au |
| VIC | None. Medical Treatment Planning & Decisions Act 2016 supplies a substitute-decision hierarchy only when the young person is not mature-minor competent. | – OPA guidance: clinician must apply Gillick/mature-minor test and record reasons for capacity finding. – If not competent, follow the Act’s hierarchy or seek VCGA/Family Court for “special” procedures. | publicadvocate.vic.gov.au |
| WA | None. WA Health Consent to Treatment Policy 2023 requires Gillick assessment for minors; default to parent/guardian or court if not competent. | – The policy includes a decision-making flow-chart and hierarchy of substitute decision-makers. | health.wa.gov.au |
| TAS | None. Tas Dept of Health immunisation guidelines apply Gillick; complex cases are referred to TasCAT Guardianship stream. | – Same principles apply across all treatment, not just vaccination. | health.tas.gov.au |
| ACT | None for treatment consent. Separate administrative rule: adolescents 14 yrs + may open their own MyDHR digital-record account. | – For clinical consent, Gillick test still applies case-by-case. | health.act.gov.au |
| NT | None. NT Law Handbook notes that ≈ 14 yrs is generally regarded as enough maturity for most routine care, but Gillick competence is decision-specific. | – Certain treatments (termination, sterilisation) still require court approval even for a Gillick-competent child. | ntlawhandbook.org |
So, what is the “minimum competence age” in Australia?
Outside NSW (14 yrs) and SA (16 yrs) there is no fixed chronological threshold.
Under common-law Gillick competence a child of any age who demonstrates:
- Sufficient intelligence and maturity to understand the nature, purpose, risks and alternatives of the proposed treatment; and
- Ability to express a reasoned choice
may give valid consent. In practice:
- < 12 yrs – very rarely competent except for trivial, low-risk care.
- 12–13 yrs – occasionally competent for simple, low-risk interventions.
- 14–15 yrs – often competent for most routine treatments (reflected in Qld & NT guidance).
- ≥ 16 yrs – presumed competent in SA; elsewhere usually accepted unless evidence of impaired understanding.
Always document the capacity analysis, involve parents where safe and appropriate, and seek tribunal/court input for:
- Irreversible or high-risk procedures (e.g. sterilisation, gender-affirming surgery, complex transplant decisions).
- Situations where the young person’s decision conflicts with parents or where best-interests are disputed.
3. Key Family-Court case law affecting high-risk treatment
| Decision | Effect on clinical practice |
|---|---|
| Re Kelvin [2017] – Full Court | If a child is Gillick competent and all parents & treating team agree, court authorisation is not required for Stage 2 gender-affirming hormones. Human Rights Law Centre |
| Re Imogen (2020) | Court application mandatory whenever there is any dispute about (a) diagnosis, (b) the child’s capacity, or (c) proposed gender-affirming treatment. AustLII |
| Strum J ruling Apr 2025 | Recent decision criticised reliance on previous precedents and signalled closer court scrutiny of puberty-blockers when evidence or parental agreement is contested. (May trigger appellate review). The Australian |
Clinical takeaway: for irreversible or contentious therapies (e.g. Stage 2 hormones, sterilising surgery, high-risk experimental treatments) you must:
- Undertake a meticulous Gillick assessment;
- Obtain unanimous parental agreement or seek legal advice/family-court direction;
- Use multidisciplinary documentation (endocrinology, psychiatry, ethics) before proceeding.
4. Performing & recording a Gillick assessment
- Explain diagnosis, proposed treatment, benefits, risks, and alternatives in developmentally appropriate language.
- Check understanding – ask the young person to paraphrase key points, outline pros/cons, and anticipate long-term outcomes.
- Assess reasoning – can they compare options, appreciate consequences, and express a stable preference?
- Confirm voluntariness – ensure decision is free of coercion.
- Document in detail: information provided, questions asked, answers demonstrating understanding, your capacity conclusion, and any parental/court involvement.
Tip: Use a structured capacity note template (e.g. NSW Health Consent Manual §§ 8–9) so that your file would satisfy a subpoena or indemnity-insurer audit. NSW Health
5. Overriding a child’s refusal
Even a Gillick-competent minor’s refusal of life-saving treatment (e.g. transfusion, cancer therapy) may be overridden by a court in its parens patriae role where refusal poses a “serious threat to life or health”. Seek urgent legal advice and document the emergency rationale.
🔹 Special Cases Where Gillick May Not Apply
| Scenario | Why Gillick is Insufficient | Key Authority |
|---|---|---|
| Non-therapeutic sterilisation | Beyond parental/Gillick power → Family Court order required | Marion’s Case (1992) |
| Disputed high-risk interventions | Court required (e.g. contested gender-affirming treatment) | Re Imogen (2020), 2025 Strum J |
| Refusal of life-saving treatment | Can be overridden by court in best interests | X v Sydney Children’s Hospital (2013) |
| Compulsory care under legislation | Mental Health Acts, public health laws, child protection override Gillick | MHA 2016 (Qld), Public Health Acts, etc. |
| Emergency doctrine | Consent not needed in immediate, life-threatening emergencies | Common law |
Examples of Where Gillick Applies in Practice
| Clinical Setting | Can Gillick Apply? | Explanation / Case Example |
|---|---|---|
| Oral contraception | ✅ Yes | Routine reproductive care; e.g. 15 y-old requesting OCP |
| STI testing / counselling | ✅ Yes | Rooted in Gillick precedent |
| Early pregnancy care (<22w Qld) | ✅ Yes | Termination Act allows “a person” to request care |
| Mental health (voluntary) | ✅ Yes | Minor may consent to SSRIs or therapy |
| Routine treatment (e.g. suturing, antibiotics) | ✅ Yes | Within normal parental power → mature minor may also consent |
| Stage 2 gender-affirming hormones (no dispute) | ✅ Yes | Re Kelvin: Gillick + parental support is sufficient |
| Elective cosmetic surgery | ❌ Probably No | Risky, not therapeutic → parental/court consent needed |
| Life-saving transfusion (refusal) | ❌ No | Court may override Gillick refusal |
| Stage 2 hormones (parental dispute) | ❌ No | Court must authorise per Re Imogen |
Other Statutory Frameworks Affecting Consent
| Law | Impact on Consent | Example |
|---|---|---|
| Mental Health Act 2016 (Qld) | Authorises treatment under a Treatment Authority if criteria are met | 15 y-old with psychosis refusing meds |
| Public Health Acts | Allows mandatory isolation or treatment | TB isolation despite minor’s objection |
| Child Protection Law | Mandates reporting and court-ordered assessments | GP reports underage sexual activity |
Summary Table: Gillick Competence – Use and Limits
| Decision | Gillick Alone Sufficient? | Authority / Rationale |
|---|---|---|
| OCP prescription | ✅ Yes | Gillick, Fraser Guidelines |
| Routine medical care | ✅ Yes | Common law |
| Cosmetic rhinoplasty | ❌ Probably No | Requires parental consent / court |
| Refusal of blood transfusion | ❌ No | Court can override |
| Stage 2 hormones – all agree | ✅ Yes | Re Kelvin |
| Stage 2 hormones – disputed | ❌ No | Re Imogen, 2025 Strum J |
| Emergency appendectomy | ✅ No consent required | Common-law emergency doctrine |
Key take-home messages
- 18 years = full consent capacity. All jurisdictions treat anyone ≥18 y as an autonomous decision-maker.
- <18 years → apply the Gillick (mature-minor) testunless one of the following overrides it:
- Statutory age defences – only two exist:
- NSW: child’s consent valid at ≥14 y (s 49 Minors (Property & Contracts) Act 1970).
- SA: person may consent “as though an adult” at ≥16 y (s 6 Consent to Medical Treatment & Palliative Care Act 1995).
- Special-procedure jurisprudence – e.g. sterilisation, some gender-affirming treatments (Re Imogen).
- Compulsory-treatment statutes – Mental Health Acts, child-protection orders, public-health emergencies.
- Statutory age defences – only two exist:
Practical rules of thumb
- Gillick first:
- Assess maturity, understanding, and voluntariness for the specific decision.
- age alone (except NSW/SA safe-harbour provisions) never guarantees competence.
- Risk escalates threshold: The greater the risk or irreversibility, the deeper the capacity assessment and the more likely court involvement.
- Special statutes override
- mental-health
- child-protection
- reproductive-health laws
- ……… can impose additional gates.
- Document everything:
- Record the information provided, the child’s demonstrated understanding and reasoning, your capacity conclusion, and any parental or legal input. This is your strongest medico-legal safeguard.
- Unsure? Escalate early: Consult senior colleagues, hospital legal/ethics units, your indemnity insurer, or the relevant court before proceeding.
Bottom line
- Adult capacity begins at 18.
- Mature minors can self-consent if they meet the Gillick standard, except where NSW/SA statutes or special-procedure/compulsory-treatment laws intervene.
- Higher risk = higher scrutiny.
- Meticulous Gillick documentation protects both patient welfare and clinician liability.