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Law - End of Gillick competence
The case of a 14 year old girl terminating
her pregnancy without her parents' knowledge may have generated
much controversy but the issues were far simpler than those
involved in cases where the child's life is at risk. Rebecca
Opie, of Clarke Willmott, argues that the courts' increasing
use of their inherent jurisdiction has all but eroded the
concept of the 'Gillick' competent child.
The case of the 14 year old girl who terminated
her pregnancy without her mother's knowledge provoked much
discussion in the media as to the rights children have to
make decisions without recourse to their parents. In the case
of the termination the 14 year old was deemed to be competent
to consent to the procedure on her own behalf and therefore
the hospital acted legally in undertaking the procedure, and
conversely, if she had not consented the termination would
not have gone ahead.
What, however, would the situation have been if the pregnancy
was threatening the girl's life and she refused, on ethical
grounds, to consent to the termination? It is almost certain
that, in those circumstances, the child would not have been
held competent and the termination carried out following a
declaration of lawfulness under the High Court's inherent
jurisdiction.
In such circumstances, a declaration of lawfulness is required
because any medical procedure or treatment constitutes an
assault if consent is not obtained. A competent adult has
an absolute right to consent to or decline medical treatment;
however, the issue of children's consent to medical procedures
or treatment is complicated and one which case law has done
little to clarify.
For young children, a person with parental responsibility
will be asked to give consent to the treatment or procedure
and, provided that is obtained, treatment is lawful. For older
children the legal position is a mixture of case law and statute.
Theoretically (see below), a person between the ages of 16
and 18 years old is, by virtue of s8 of The Family Law Reform
Act 1969, able to give valid consent without recourse to their
parents. For a "mature" child under 16 years the
case of Gillick v West Norfolk & Wisbeck Area Health Authority
and Department of Health & Social Security [1985] 3 All
ER 402) assists.
The Gillick case concerned the lawfulness of a 1980 DHSS circular
allowing, in exceptional circumstances, a doctor to lawfully
give contraceptive advice or treatment to a girl under 16
without her parents' knowledge or consent. Mrs Gillick objected
to the notice and ultimately made an application to the court
for a declaration that the circular was unlawful. The matter
proceeded to the House of Lords where, on a majority judgement,
the Lords held that the circular was lawful. The case therefore
determined that, provided a child had sufficient understanding
of a proposed medical treatment and had expressed their wishes,
they could consent to it irrespective of the fact that they
were under 16 years.
In the mid 1980's Gillick was heralded as a major step forward
for a mature child's right to determine issues themselves.
However, since then, instead of building on Gillick and the
notion of children's rights, the courts have actually retreated
substantially from both the decision in Gillick and in certain
circumstances the Law Reform Act 1968. The Court has been
able to do this by exercising power under its inherent jurisdiction
and those powers are potentially unlimited.
The Court's inherent jurisdiction is derived from the principle
that all subjects owe allegiance to the Crown and the Crown
in return protects its subjects as parens patraie, and, in
particular has a special obligation to care for those who
cannot protect themselves – described in the 16th century
as "All infants, as well as idiots and lunatics".
For children, this protection was afforded by making them
wards and in the mid 16th century responsibility for wardship
was transferred to the Chancery Courts where, over time, it
was assimilated with the parens patraie jurisdiction and,
in 1971, transferred to the Family Division of the Principal
Registry where all applications for wardship must now originate.
Wardship enabled the court, on behalf of the Crown, to effectively
act as if it were a parent, and the court assumed ultimate
responsibility for a child's upbringing and property.
Modern wardship puts the court in the position of responsible
parent vis à vis the child and means that no important
step in a child's life can be taken without the court's leave.
Until the enactment of the Children Act 1989, if a decision
relating to a child under the court's inherent jurisdiction
was required, the child was made a ward. Wardship is however
simply a mechanism via which inherent jurisdiction can be
accessed and exercised, and the actual powers of the court,
whether a child is made a ward or not, are the same.
Although theoretically unlimited the court's powers when exercising
its inherent jurisdiction are limited by the following:-
1. A duty to act in a child's best interests as a reasonable
parent would;
2. A child must be either habitually resident in England and
Wales, or present in this jurisdiction, and the court considers
that the immediate exercise of its powers is necessary for
the protection of the child;
3. Statute based prohibitions – the Children Act 1989
severely restricted the court's use of wardship;
4. Legislation that already governs the issue (although see
below);
5. The fact that it can not confer any special rights of privileges
for a child;
6. Restrictions the High Court has imposed upon itself;
7. The child's wishes and feelings.
The court may be asked to exercise its inherent jurisdiction
on the application of parents, a National Health Trust or
the local authority. It may be asked to make declarations
that treatment is lawful, the type of treatment or whether
it should continue and to consent to treatment on behalf a
child.
A decision must be taken whether it is appropriate for the
child to be made a ward or for the court to exercise its powers
under its inherent jurisdiction. The former is likely to be
a better proposition if the child's condition is changeable
- that way the court can monitor the situation and intervene
as appropriate – see Re J (A Minor) (Medical Treatment)
[1992] 3 WLR 507 and also R v Portsmouth Hospitals NHS Trust
ex parte Glass [1999] 2 FLR 905, where the court encouraged
a mother of a severely disabled child to apply for the child
to be made a ward (there was a dispute between the family
and the hospital as to whether the child should be placed
on a ventilator or allowed to die).
If an application is made in wardship it must be made by originating
summons to the Family Division of the Principal Registry.
If a bare declaration is required then an application to either
a District or the Principal Registry (depending on the seriousness
of the situation/effect or otherwise of treatment) in the
matter of the inherent jurisdiction will suffice.
The starting point for all cases involving consent is that,
the court cannot order a doctor to treat a child, the court
can only authorise "…the doctors to treat the minor
in accordance with their clinical judgements, subject to any
restrictions that the court may impose." (per Wall J
in Re C (Detention: Medical Treatment) [1997] 2 FLR 180).
Each case is treated on its facts and, although there is a
presumption in favour of a cause of action which prolongs
the child's life, this is not irrefutable.
In situations where the child is Gillick competent or able
to consent for the purposes of s8 of the FLRA 1969, the High
Court, in the exercise of its inherent jurisdiction has, often
via controversial interpretations, overridden their views.
It is of course much easier to describe a child as Gillick
competent when they agree a course of treatment proposed by
their doctor than when they do not.
The leading reported cases include Re R (A Minor: Wardship
Consent to Treatment) [1991] 3 WLR 592 where a 15 year old
girl suffering from a psychiatric illness characterised by
periods of violent and suicidal behaviour followed by lucid
thought refused to take medication, and wardship proceedings
were instigated. Here, the court held that, even if she were
Gillick competent and, because of the extremity of her behaviour
she could not be so, consent could be given by somebody else
with parental responsibility or the court.
In Re W (A Minor) (Medical Treatment: Court's Jurisdiction)
[1992] 3 WLR 758, a 16 year old girl was suffering from anorexia
and refusing treatment. The court held that s8 of the FLRA
1969 did not give the child an absolute right to refuse treatment,
it simply protected the doctors from prosecution by allowing
her to consent as if she were an adult. The court also noted
that as a child matured so did their ability to express their
wishes and feelings, although in this case, the court felt
that the girl's wishes and feelings were not served by her
interest, especially because one symptom of anorexia was,
at least, in part, a desire not to get better.
The case of Re L (A Minor) [1998] 2 FLR 810 involved a 14
year old Jehovah's Witness who was horrendously burned and
required operations which would involve blood transfusions.
The court considered that although she was intelligent, the
fact of her upbringing meant she was naïve and that,
as she matured, she would question her religion further and
that, on that basis, she was not Gillick competent, and it
overrode her consent. A similar conclusion, via a different
interpretation, was reached in Re E (A Minor) (Wardship: Medical
Treatment) [1993] 1 FLR 386 where a 15 ½ year old Jehovah's
Witness refused blood products. In this case the court found
the child was not Gillick competent because he had not been
informed by his doctors of the horrendous manner of his death
and could therefore not have a full understanding within the
meaning of Gillick.
In all of the above decisions the court considered the children's
wishes and feelings and that they should be given increasing
weight as they matured, then overrode them. This means that
the notion of Gillick competency is, in many ways, redundant
– how can a 15 ½ year old boy possibly hope to
be Gillick competent when the doctors had (through no fault
of his own) not informed him of the consequences of his refusal
to receive treatment? Therefore, in reality, until a child
is 16 years of age, irrespective of the fact that they are
Gillick competent, a valid consent to treatment can either
be given by someone with parental responsibility for them
or indeed the court and, once the child reaches 16 years of
age, although their parents' consent can be overridden by
that child, the court's cannot.
Ultimately, these decisions may have been in the children's
best interests and, if the court had not made them, they were
liable to face public outcry, however, they are against intelligent
children's clearly expressed wishes.
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