Must the capacitous young person, in addition, be competent to provide consent for treatment? Drs Davies, Fisher and Birchley propose that this situation has been reached in the common law; and that the lack of legal clarity extends to medical research and guidance. And so it would, since as they point out, ‘capacity’ and ‘competence’ are not synonymous notions.

A judgement, In Re X, handed down in January 20211 concerned a Gillick 2 competent girl aged 15 years, soon to be 16. She was seeking to refuse blood transfusion for her latest sickle cell crisis. The Gillick case was decided on the basis that if a child establishes that she is of sufficient maturity and intelligence to understand what is involved in the treatment in question, she is competent to provide consent. The judge, Sir James Munby, past President of the Family Division of the High Court, had been asked to consider what X’s position might be (with respect to her ability to refuse consent for blood transfusion) when she reached 16 (thus presumed to be capacitous), given her frequent sickle cell crises. He observed that ‘…the tests of capacity and Gillick competence have nothing very obvious in common, not least because they are rooted in different …