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Don’t equate competence with capacity
  1. Robert Wheeler
  1. Department of Clinical Law, University Hospital of Southampton, Southampton, UK
  1. Correspondence to Dr Robert Wheeler, Department of Clinical Law, University Hospital of Southampton, Southampton SO16 6YD, UK; robert.wheeler{at}

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A recent ruling1 makes it clear that while parents could consent to the compulsory detention of D, their incompetent 15-year-old child, they could not do so when he became an incapacitated young person of 16. Age apart, this hints that competence is not synonymous with capacity. The ability of children and young people to deal with medical decisions requires clear definition (box 1).

Box 1

Illustrative case

P, a 16-year-old boy, was admitted from a residential special school at 16:30 with minimal cellulitis adjacent to a fluctuant paronychia. Afraid and agitated, he had last eaten at 08:00. His parents were uncontactable. P could not communicate a decision to consent for incision and drainage, leading to the conclusion that he lacked ‘Gillick’ competence. His capacity was not separately tested, but incapacity was nevertheless (incorrectly) assumed. After four attempts at cannulation and acute distress over the ensuing 12 hours, intravenous antibiotics were started at 04:30.

If his capacity had been tested, and the statutory practical support for decision-making employed, P would have established he did not lack capacity, would have provided consent for surgery under anaesthesia and his abscess would have been drained and a cannula inserted without distress, awaking calmly in recovery at 19:30.

P should have been assessed under the Mental Capacity Act in the first instance. The supportive structure of that process would have established his capacity and allowed him to avoid the unnecessary traumatic events that befell him. Capacity and competence are not synonymous. Test capacity first in young people and then if capacitous, their Gillick competence.

Since 1985 we have become familiar with the common law concept of Gillick 2 competence, …

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  • Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests None declared.

  • Provenance and peer review Commissioned; internally peer reviewed.

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