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Law - End of Gillick competence

Competent children, medical consent and their best interest
by Rebecca Opie, Clarke Willmott

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.
Inherent Jurisdiction
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.
Limits on inherent jurisdiction
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 Court's decisions
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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