The Pharmaceutical Journal Vol 267 No 7157 p87-88
July 21, 2001

  Self-checking
  Consent
  PGDs
  CPD

Consent

Differences in Scottish and English law

From Mr E. J. H. Mallinson, MRPharmS

In the article “Pharmacists tackle teenage pregnancy” (PJ, 7 July, p3 ) you refer to “Gillick competence” criteria (the Fraser ruling). I appreciate that your article relates to an initiative in Kent but it is important for pharmacists to recognise that “Gillick”¹ is English law and does not apply in Scotland.

In Scotland the Age of Legal Capacity (Scotland) Act 1991 is the legislation that applies and in particular s2(4) which states: “A person under the age of 16 years shall have legal capacity to consent on his [her] own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him [her], he [she] is capable of understanding the nature and possible consequences of the procedure or treatment.”

Whereas the sentiment in the above legislation in some way mirrors the Gillick judgement — “Parental rights were recognised by the law only as long as they were needed for the protection of the child and such rights yielded to the child’s right to make his own decisions when he reached a sufficient understanding and intelligence to be capable of making up his own mind. Accordingly, a girl under 16 did not, merely by reason of her age, lack legal capacity to consent to contraceptive advice and treatment”¹ — it is Statute that pertains in Scotland rather than case law.

The test that must be applied, when determining competence, however, is laid down by in two English judgements.² The patient must receive and retain the information given to him or her, believe it, weigh up the pros and cons to make a clear choice and communicate the decision. If all these criteria are met then the patient has the capacity to consent.

I hope that this clarifies the legal basis of the differences between English and Scottish law and that pharmacists working in Scotland will not be tempted to refer to Gillick when determining the competence of minors.

References

1. Gillick v West Norfolk Health Authority [1985] 2 BMLR 11 HL.

2. Re C (Mental Patient: medical treatment) (1993) 15 BMLR 77, [1994] 1 WLR 290, Re T (adult: refusal of treatment) (1992) 9 BMLR 46, [1992] 4 All ER 649, [1993] Fam 95, [1992] 3 WLR 782, CA.

E. J. H. Mallinson
Glasgow

Need to become familiar with concepts and case law

From Professor J. Wingfield, FRPharmS

The handout included in The Journal (7 July, p6), outlining the principles of consent, is a most welcome development, not least because it demonstrates that pharmacists are recognised as health professionals whose work requires them to understand and apply to their practice concepts of health care law that are rather wider than simply the statutory controls on the supply of medicine.

The debate on consent, thrown into high relief by the “retained organs scandal” originating at Alder Hey Hospital, should alert us all to the dangers of assuming implicit trust and compliance from patients or relatives using our services.

Although pharmacy has led in the development of concordance in medicines taking, we are not, in general, familiar with the concepts and case law surrounding capacity and competence to give consent or the limitations upon its validity. To take our place alongside other health and social care professionals by being able to contribute to these aspects of shared decision making on patient care, we shall need to become familiar with such concepts and case law.

The debate surrounding the supply of emergency hormonal contraception to young girls is a useful example of our need to understand and apply the Fraser ruling (“Gillick competence”) to consent to treatment in our everyday practice (at least in England).

What other situations would help in illustrating for students and new pharmacists how pharmacy practice must be informed by these considerations? For example, how are pharmacists involved in recruiting patients into clinical trials? How do pharmacists in psychiatric practice apply mental health law to their practice? To what extent do pharmacists visiting care homes involve themselves in ensuring that residents have given consent to all the treatment they are receiving?

In the future, pharmacists, like all health professionals, may be held to account for their part in ensuring what is essentially a basic human right: “To be given a clear explanation of any treatment proposed, including any risks and alternatives, before [patients] decide whether [they] will agree to treatment.”¹ It is important that such concepts are explored in undergraduate curricula and that practising pharmacists share with colleagues how they apply them.

Reference

1. Department of Health. The patient’s charter. London: HM Stationery Office; 1991.

Joy Wingfield
Professor of Pharmacy Law and Ethics,
University of Nottingham

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