Competency and best interests of the child relating to health issues : a Maltese and international legal perspective

Abstract

The objective of this thesis is to consider the application of the Gillick competence principle in the light of the child's best interests in the Maltese context as applied abroad namely in England. In Gillick v West Norfolk and Wisbech Area Health Authority the Court held that children under 16 years, who have the intelligence and understanding to be competent to give consent to a particular treatment, may give consent for themselves. The thesis will be set out in the ensuing approach: Chapter 1 will define the term child, and will analyse competence. Then Chapter 2 shall give an in depth analysis of the Gillick Case and will examine the extent of parental rights in the light of Gillick competency. Chapter 3 will undertake to explain various situations where Gillick competency can be applied in Malta such as substance abuse. Chapter 4 shall focus on various International and Maltese legislations with specific reference to the Convention on the Rights of the Child, the Commissioner for Children Act, and the Medical and Kindred and Professions Ordinance. Chapter 5 shall then discuss the position of the Gillick competence in current Maltese law. The degree of its presence here in Malta will also be discussed. This chapter shall contain interviews conducted to legal specialists experienced in this field. Chapter 6 will illustrate the results obtained from the study carried out among school children and the interviews with health professionals. As a conclusion it will deal with the workable use of the Gillick principle here in Malta. It will also deliberate on who should assess children for Gillick competency. Finally recommendations on how to amend the lack of recognition of child competency and proposed legislation on the matter which will reflect the child's best interests will be set out.