Assessing competence for those under 16 years of age 

Under the Sexual Offences Act 2003, the legal age of consent is 16, and sexual activity with anyone under this age is illegal, even if both parties consent. Nevertheless, PGDs do allow pharmacists to provide oral EC to those under 16 years of age, but in such cases, capacity is not presumed and therefore must be assessed. 

The term 'competence' is used instead of 'capacity' for this age group. The Gillick test, established in 1985 following a test case, determines competence. The test permits healthcare professionals to provide medical advice or treatment without parental involvement if the child demonstrates sufficient understanding and intelligence to fully comprehend the treatment.

If the child fails the Gillick test, consent must be obtained from someone with parental responsibility. One of the Law Lords involved in the Gillick case, Lord Fraser, issued guidance for healthcare professionals to follow when providing contraceptive advice and treatment to those aged under 16. The ruling itself confirmed that a girl under 16 with sufficient understanding and intelligence may legally consent to contraceptive advice, treatment, and necessary examinations.

While initially limited to the provision of emergency contraception, a 2006 test case extended the Fraser guidelines to include advice and treatment for sexually transmitted infections and abortion.

In practice, many aspects of the Fraser guidelines mirror those used to assess mental capacity but they also include additional considerations. These are outlined in Table 2 (on the following screen), along with questions pharmacists may use to evaluate a child's Fraser competence.

The Fraser guidelines apply in England, Wales, and Northern Ireland. While they may be used in Scotland, the primary legislation there is the Age of Legal Capacity (Scotland) Act 1991, which states that a person under 16 can consent to treatment if they understand its nature, potential consequences, benefits and risks.