By Associate Professor Tracey Evans Chan
What can the law do to support the betterment of mental health of minors? In Singapore, the mental health of minors has become a critical public health concern with high rates of mental illness and suicide among youths. A potential barrier to minors’ access to mental health services is the legal requirement for parental or guardian consent. This creates challenges when parents don’t understand or acknowledge their child’s mental health needs, minors aren’t ready to discuss mental health with their parents and parents worry about stigma or future implications of a mental health diagnosis. My article ‘Revisiting Consent, Gillick Competency, Parens Patriae, and the Access of Minors to Mental Health Services in Singapore’ published in Medical Law International examines the legal infrastructure governing minors’ ability to access mental health services and explores whether current laws are adequate, or if alternatives like the Gillick competency or lowered statutory consent thresholds are needed. In addition, it considers the court’s jurisdictional powers in relation to the care and treatment of minors in the face of parental objection or disagreement.
Age of Consent
Some mental health providers use 18 years of age as the cutoff for independent consent, though others consider Gillick competency—a common law principle pursuant to which a minor can consent if sufficiently mature and who understands the nature of the treatment. The age of majority in Singapore is 21, but the contractual age of capacity was lowered to 18 by section 35 of the Civil Law Act 1909. Could this be the basis for the lower age of consent used in mental health practice? This is doubtful on a contextual reading of the provision, and the legal position could be made clearer. In any case, the lower age of 18 still does not address the crux of the problem, as mental health issues can arise much earlier. Delayed diagnosis and treatment is a persistent problem.
Gillick Competency in Singapore
Though not definitively adopted by the Supreme Court, Gillick competency has been recognized in Singapore’s Family Court in VYG v VYH [2021] SGFC 124. The Court held that a child’s capacity to consent is dynamic and based on their maturity and understanding of the issue, not just chronological age. Statutes relating to organ donation and biomedical research also implicitly recognise such functional capacity in minors. However, my article identifies two main challenges with relying on Gillick competency to address access issues. First, conceptual and practical uncertainty: there is no clear or uniform standard for what constitutes sufficient maturity, and health professionals may lack confidence in applying the concept. Second, mental health treatment for minors adopts a family model of care, involving family participation, making individual consent more complex than in other areas like contraception.
Alternative Approaches
The article suggests that Singapore could simplify Gillick competency to focus on cognitive and communicative abilities and avoid the vaguer concept of ‘maturity’. This could be implemented by creating statutory age-based thresholds tied to specified mental health services. We should also provide legal and professional guidelines for health practitioners, including statutory defences for good faith decisions on the assessment of a minor’s capacity.
Judicial Resolution & Parens Patriae
Finally, where there is disagreement between minors, parents, and mental health practitioners, the courts may need to intervene. The article traces the historical foundations of the parens patriae jurisdiction in Singapore, which empowers courts to act in the best interests of those unable to care for themselves. I argue that this jurisdiction still exists in Singapore under section 17 of the Supreme Court of Judicature Act, and can play an important role in resolving complex consent disputes by allowing non-parent third parties to seek judicial oversight and direction in the healthcare of minors.
Conclusion
There is a need for clearer statutory frameworks and professional guidelines on minors’ consent to mental health treatment. Gillick competency is already partially embraced, but should be clarified and perhaps simplified for greater access and certainty. The parens patriae jurisdiction remains relevant and could support improved access and outcomes for minors needing mental health services. Ultimately, the law should balance minors’ developing autonomy, best interests, and the practical realities of mental health care, preferably through statutory reform. With rising youth mental health concerns, addressing these legal barriers is crucial for ensuring timely access to needed mental health support and treatment.
Keywords: Consent to treatment, Gillick competency, parens patriae jurisdiction, mental health, minors
AUTHOR INFORMATION
Tracey Evans Chan is Associate Professor of Law at the Faculty of Law, National University of Singapore (NUS).
Email: lawchant@nus.edu.sg