Age of Competence
Gillick competence
- Refers to whether a young person has sufficient maturity and understanding to consent to medical treatment independently
- Assessment depends on:
- Complexity of treatment
- Risks involved
- Ability to understand:
- Benefits
- Risks
- Alternatives
- Consequences
- More complex interventions require:
- Greater depth of explanation
- More detailed documentation
Fraser Guidelines (contraception in under-16s)
Clinician should:
- Encourage involvement of parents/carers where appropriate
- Assess that the young person understands:
- Sex
- Pregnancy risk
- STI risk
- Contraception
- Safe sex practices
- Confirm the adolescent can explain information back in their own words
- Believe:
- Sexual activity is likely to occur regardless
- Health may suffer without treatment
- Treatment is in the young person’s best interests
- Respect confidentiality where appropriate
- Careful documentation is essential
Consent and capacity in adolescents
Core principles
- Age of majority in Australia is 18 years.
- Adults are presumed competent to consent to medical treatment.
- Young people under 18 may still consent to treatment if they are assessed as “Gillick competent” or a “mature minor.”
- Gillick competence means the young person:
- Understands:
- the condition
- proposed treatment
- risks
- benefits
- alternatives
- likely consequences
- Can make and communicate a reasoned decision.
- Understands:
- Capacity depends on:
- the specific decision
- complexity of treatment
- level of risk
- maturity and understanding
Practical age guidance (not strict legal rules)
- <12 years:
- Rarely competent except for simple low-risk care.
- 12–13 years:
- May be competent for straightforward low-risk treatment.
- 14–15 years:
- Often competent for many routine medical decisions if understanding is demonstrated.
- ≥16 years:
- Usually presumed capable of consenting to most routine treatment.
- South Australia has specific legislation recognising this.
State-specific notes
Queensland
- No fixed legal age for medical consent.
- Gillick competence assessment applies to each decision.
- Careful documentation of capacity assessment is important.
New South Wales
- Legislation provides additional legal protection for clinicians treating minors aged 14 years and older who consent.
South Australia
- Legislation recognises consent by young people aged 16 years and older.
- Additional requirements apply for younger adolescents.
When parent involvement or court review may be needed
Seek senior/legal/court guidance when:
- Treatment is:
- irreversible
- high-risk
- experimental
- life-changing
- There is:
- disagreement between parents and young person
- disagreement between clinicians
- uncertainty regarding best interests
- concern regarding capacity
Examples:
- Sterilisation
- Some gender-affirming treatments
- Complex transplant decisions
Good clinical practice
- Assess and document:
- understanding
- reasoning
- voluntariness
- ability to weigh risks and benefits
- Involve parents/carers where safe and appropriate.
- Maintain confidentiality unless:
- safety concerns arise
- mandatory reporting obligations apply.
Key legal authorities
- Gillick v West Norfolk and Wisbech AHA (1986)
- Secretary, Department of Health and Community Services v JWB & SMB (“Marion’s Case”) (1992)
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.
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.