It has long been recognised on both international and domestic planes that children must be afforded special safeguards against any potential harm or threat for they are vulnerable. Nonetheless, such protections give little to no acknowledgement of a child’s evolving capacities and maturity levels which equip them with decision-making abilities. Fortunately, in the United Kingdom, there has been progression into accepting and recognising a child’s maturity and intelligence via the Gillick competence rule. Throughout the article, the author explicates the possibility of introducing such a rule into the Malaysian jurisprudence.

I.   INTRODUCTION
A child is defined as any person under the age of 18;[1] this is also the age of majority in Malaysia.[2] As children are vulnerable due to their physical and intellectual immaturity, the United Nations Convention on the Rights of the Child (‘UNCRC’) expressly recognises the need to afford them with special safeguards.[3] This can be done by adopting transparent procedural safeguards in assessing and determining a child’s best interests.[4] For example, institutions that work closely with children such as schools should have clear and accessible standard operating procedures concerning their management of child protection cases.[5] Domestically, the need for children to be afforded special safeguards has been reflected in the preamble of our Child Act 2001.[6]

Traditionally, children were viewed as passive recipients of protection under parental and governmental control.[7] Besides being empowered with a broad array of unrestrained authority, parents were also regarded as the primary rights-holders in their children’s upbringing.[8] As a result, this inculcated a paternalistic approach towards children to the detriment of their autonomy. However, child rights on the international plane have marked a progressive development upon the introduction of a child’s ‘evolving capacities’ in the UNCRC; it establishes that a child is capable of being a rights-holder under international law.[9] Consequently, the position has since departed from the traditional child-saver approach that hinges on child protection through prevention of harm and provision of assistance for the child’s essential needs.[10]

Fundamentally, a child’s right to participation includes being involved in decision-making. This right is the crux of a Gillick competent child as stipulated in the case of Gillick v West Norfolk and Wisbech Area Health Authority and another (‘Gillick’s case’).[11] Simply put, a Gillick competent child refers to a child below the age of 16 years who is considered to be legally competent to consent to their own medical treatment.[12]

In line with the concept of a child’s evolving capacities, Gillick’s case recognises the varying levels of maturity and intelligence that children may demonstrate. Since children as young as 16 years old are recognised by Malaysian law to be capable of consenting to marriage[13] and engaging in sexual intercourse,[14] the question as to whether the same recognition should be extended to a child patient in their health care decisions concerning medical treatment becomes particularly relevant. More importantly, it is worth considering the potential of the Gillick competence rule in Malaysia given the dilemma faced by medical practitioners who are bound by the Hippocratic Oath[15] — a doctor’s undertaking to serve their patients to the best of their ability[16] — but shroud in fear of the legal repercussions their decision may entail.[17] This is especially so in cases involving child patients and requiring parental consent save for emergency life-saving instances.[18] Essentially, doctors are required to balance between two main principles, namely beneficence, which is to do good, and nonmaleficence, which is to do no harm. 

Overall, the discussion revolving around the necessity to adopt the Gillick competence rule is not limited to the need to respect child autonomy and set the boundaries of parental responsibility alone. It also extends to protect the child’s overall best interest. 
 
II.   DISSECTING GILLICK’S CASE 
As abovementioned, the Gillick competence rule was established in Gillick’s case wherein the main issue before the House of Lords was whether it was lawful for a doctor to provide contraceptive advice to a child who was below 16 years old, without parental consent.[19] Ultimately, the House of Lords found this in the affirmative with Lord Scarman and Lord Fraser delivering the two leading judgements hereinafter discussed. 

In Lord Scarman’s judgement, a child is considered to have Gillick competence if: (i) the child displays sufficient maturity and understanding in relation to the treatment or advice provided or (ii) the doctor believes that in the face of exceptional circumstances, it would be in the child’s best interests to proceed without parental consent. Several examples of the latter include cases involving parental neglect, an abandoned child, or an unlocated parent. Therefore, it is to be emphasised that the learned judge propounded a subjective test in determining a child’s competence as explained under (i) instead of setting a minimum age in stone. Thus, it is submitted that the autonomy of a Gillick competent child should be respected.

In Lord Fraser’s judgement, on the other hand, the learned judge was more focused on the subject matter of contraceptive advice and treatment. For this particularly, he expressly acknowledged that it may be in the child’s best interests if there is no parental involvement. Lord Fraser continued on to provide a list of factors for a doctor’s consideration in determining the need for parental consent. This list was later dubbed the ‘Fraser Guidelines’.[20]

Ultimately, the discussion on the Gillick competent child is often associated with the test laid down by Lord Scarman with reference to the child’s best interest.
 
III.   INTERNATIONAL STANDARDS OF CHILDREN’S RIGHTS 
The UNCRC is the most ratified treaty on the international plane. In fact, the United States of America is the only United Nations member state that has yet to become a State party to ‘the most comprehensive international statement on childhood’.[21] Malaysia has ratified the UNCRC since 1995. This has resulted in the enactment of the Child Act 2001 as part of our obligations in fortifying child rights.[22] In light of its principles and main domains, it would be prudent to assess the rationale of adopting the Gillick competence rule in Malaysia in light of the following key considerations:

1. The best interest of a child patient;

2. The child’s right to be heard; and

3. The acknowledgement and appreciation of the child’s evolving capacities.

 
A.  The Best Interest of a Child Patient
As embodied under Article 3 of the UNCRC, the child’s best interest must be of paramount consideration regardless of whether the matter involving the child is undertaken by public or private social welfare institutions, authorities, or bodies.[23] The underlying rationale of this principle is to ensure the child’s full enjoyment of the rights afforded by the UNCRC. Simultaneously, it aims to aid the holistic development of the child physically,[24] mentally, and socially, among others.[25]

Furthermore, the child’s best interests are regarded to be a threefold concept as detailed under General Comment No. 14.[26] Firstly, it operates as a substantive right. Therefore, it is vital for Article 3 (as explained above) to be observed in any decision that may affect a child or children in general.[27] Secondly, it serves as a fundamental interpretative legal principle. For instance, if a legal provision is open for interpretation, the interpretation that would be preferred is the one that best effectuates the child’s best interest. Thirdly, it functions as a procedural rule. In decisions concerning a child, it is imperative that an evaluation of the possible consequences towards the child in question is carried out. Following that, there needs to be transparency in the decision-making. State parties must clearly inform how the decision came to its conclusion to show that the child’s best interests were respected.

Moving on, since the concept of a Gillick competent child is in a medical context, Article 24 of the UNCRC would be another important provision to note.[28] In accordance with the aforementioned provision, a child’s right to enjoy the highest attainable standard of health must be recognised; a right that must be accounted for in making all health care decisions concerning a child patient.[29] Several factors — such as the child’s age, emotional needs, as well as their relationship with their parents — should be considered as well.[30]

Moreover, the recognition of the Gillick competence rule bolsters the child’s right to be heard pursuant to their respective age and maturity; hence, further promoting child participation in their own health-related decisions.[31]
 
B.  The Child’s Right to be Heard 
Article 12 provides that a child who is capable of forming their own views must be given the right to express themselves freely. Such views must also be given due weight, parallel to their age and maturity.[32]

Besides, a conducive environment must be created to facilitate the child’s participation in their own decision-making.[33] In the context of health care, a facilitative environment would include providing the child with sufficient information before obtaining their informed consent for any procedures. Apart from that, adults must be adequately trained and equipped with the necessary skills when communicating with children according to their evolving capacities; this is to ensure effective engagement is attained.[34] It is reiterated that parental responsibility is not undermined simply because a child participates in decisions concerning their own health.

In essence, a child’s right to be heard must be observed alongside the child’s best interest principle.[35]
 
C.  The Acknowledgement and Appreciation of the Child’s Evolving Capacities
The notion about a child’s evolving capacities was introduced through Article 5 and it has been highlighted that parents do not have the absolute right to make decisions on behalf of their child.[36] Instead, parents should appropriately guide their children in exercising their rights.[37] Although this notion is not regarded to be one of the four recognised UNCRC principles (non-discrimination, best interest principle, right to survival, development and protection, and right to participation), it marks a salient development as it effectively departs from the traditional perspective of children being passive recipients of protection by establishing a child as a rights-holder under international law. 

Hence, parents must adjust their approach according to their maturing child’s increasing agency.
 
IV.   MALAYSIAN CONTEXT 
In Malaysia, the Gillick competence rule is yet to be adopted by our courts and thus, there are currently no case laws debating its application. However, its essence is nuanced under Guideline 6 of the Malaysian Medical Council (‘MMC’) Guideline on the Consent for Treatment of Patients by Registered Medical Practitioners.[38] The earlier part of the guideline particularly concedes that a child’s capacity to provide valid consent is not determined by their age. Rather, it is determined by their maturity and intelligence to understand the nature and consequences of the proposed medical procedure, examination, or treatment. Interestingly, the same guideline provides for specific acknowledgement towards unmarried children’s lack of capacity to provide such consent — creating an inconsistency. Additionally, it has been accounted that government hospitals are more open to accepting consent from patients aged 16 years old.[39] Unfortunately, given the lingering paternalism and prioritisation of parental responsibility in Malaysia, this practice may backfire as it has no legal basis.

However, the notion that a child as young as 16 years old is capable of providing valid consent is not new. According to Section 375(g) of the Penal Code,[40] engaging in sexual relations with a girl below 16 years old is considered statutory rape. This implies that once she has attained 16 years of age, she would be able to provide valid consent for sexual relations. This is a similar position to Section 10 of the Law Reform (Marriage and Divorce) Act 1976.[41] Although the Chief Minister’s license is still required for a 16-year-old girl to get married, there is no stipulation detailing that the child’s maturity or understanding of the consequences is deliberately considered in granting such a license. Hence, with reference to the MMC Guidelines discussed earlier, the basis for the different treatment towards the capacity of unmarried children to provide consent becomes questionable.[42] Aside from that, children are also allowed to buy ‘poisons’ as defined under Section 17(1) of the Poisons Act 1952 if it is for purposes of medical treatment.[43]

Hence, the same recognition should be extended to children in making their own health care decisions — a choice that is equally critical and salient for the child’s well-being. Aside from general child participation in decision-making, children deserve to make their own choices if they demonstrate sufficient capacity to do the same; and adults, respectfully, must not deprive them of such right.
 
V.   CONCLUSION
​Besides ensuring Malaysia is aligned with the current international development of child rights, legally establishing the Gillick competence rule would also encourage discussions on better child protection particularly in the medical context. Although the Gillick competence rule will only burgeon in a society that is well-informed about child rights, considering its potential growth in Malaysia with respect to the underlying implications of our existing legislation is a good start.