Gillick Competence

Evaluate the extent to which the judiciary appear bound by the notion of ‘Gillick competence’.

When referring to the phrase Gillick competence, commentators are normally discussing the ability of a minor to make his or her own choices and have such choices upheld by the law. Most commonly, discussion relates to medical treatment and stems from the case of Gillick v W Norfolk and Wisbech AHA. Essentially, it is necessary to examine how the courts have handled the issues relating to children as decision makers, balancing such choices to the views of the parents or guardians and ultimately whether such views can overrule those of the child.

The principle that an individual has an absolute right not to have their bodily integrity violated is a basic principle supported by a large volume of case law. When a patient undergoes treatment, it is the provision of consent that prevents the doctor from being held liable for trespass to the person. Thus, so long as the patient is capable of making such decision, his consent will be valid. Adults are presumed to have such capacity from the age of 18. However, this is not the case with children and for the majority of childhood, such decisions will be made by the child’s parent or guardian, so long as such person is vested with parental responsibility. Under section 8 of the Family Law Reform Act 1969, minors between the age of 16 – 18 are empowered to consent to their own treatment. Further, the law has developed the Gillick principle in order to empower certain children below this age to make their own decisions.

The Gillick case originates from the production of a circular issued by the DHSS in 1974 stating that contraceptive services should be more readily available to girls who were under 16 because of emerging statistics showing a rise on the number of births and induced abortions amongst girls of such age. The revised version published in 1980 stressed the importance of making an effort to involve the parents with such issues. However, where the patient was adamant that her parents should not be informed of such conduct, then the principle of confidentiality should be preserved. The House of Lord held that a child under sixteen can in certain circumstances give a valid consent to medical treatment including contraception or abortion without parental agreement or knowledge. Lord Scarman commented:

‘… the parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.’

The importance of the case cannot be underestimated. Thus, a child below sixteen may lawfully be given general medical advice and treatment without parental agreement, provided that child has achieved sufficient maturity to understand fully what is proposed. Therefore, a doctor acting on such grounds will be immune from civil action for trespass to the person or criminal prosecution.

On careful examination, the words of Lord Scarman can be read as meaning that once a child reaches an age where he has acquired sufficient maturity to consent to treatment, or Gillick competence, then they have a right to decide which treatment they receive. Thus, it can be read that such individuals have a right to reject as well as accept such treatment; ‘the parental right yields to the child’s right to make his own decision’ (own emphasis added). However, subsequent decisions have held otherwise, leading Brazier to comment that ‘[a]dolescent autonomy is little more than a myth, for no young person, no minor, under eighteen has a right to refuse treatment.’ In essence, no minor has a right to refuse treatment that is in his or her best interests.

The initial interpretation has certainly not restricted the judiciary from interpreting Gillick as meaning that a child has an absolute right to both accept and refuse treatment where he possesses sufficient maturity and understanding of the proposed treatment. Thus, in Re R (A Minor) a fifteen-year-old girl who lacked insight into her acute psychiatric condition was held not to be Gillick competent. The illness itself prevented the patient from fully understanding the need for medication in order to control her condition and therefore was treated against her will. Initially, it can be argued that such approach is consistent with Gillick as the patient lacked the necessary maturity and competence to make the decision herself. However, Lord Donaldson went on to comment that even if R was competent, she had no authority to veto treatment as a Gillick competent minor could consent to, but not refuse treatment. Consent was akin to a key that ‘unlocked the door to treatment’ making the doctor’s action lawful but not obligatory. Thus, once a person becomes Gillick competent they become a ‘keyholder’. The main issue in need of appreciation is the fact that a Gillick competent (or a 16 or 17 year old minor empowered to consent under the provisions of the Family Law Act 1969), cannot be overridden by a parent. However, when a refusal to consent arises for treatment that is required in the minor’s best interests, it is probable that an application to the High Court is needed to override such refusal.

Re R was the topic of much criticism. However, in Re W Lord Donaldson followed his earlier dicta. The case involved a 16-year-old girl who was seriously ill with anorexia nervosa. The Local Authority in charge of her care sought guidance as to whether, if necessary, they could transfer her against her wishes to a specialist unit in order to be force-fed. The patient was able to consent to treatment under s 8 of the Family Law Reform Act 1969, but refused to do so. The court held that under s 8(3) the law preserved the concurrent parental power to authorise treatment and the inherent powers of the courts to act to protect a minor’s welfare. Lord Donaldson’s only regret about his earlier decision in Re R was the keyholder analogy as he acknowledged that keys can both lock and unlock. His metaphor approach in Re W was to that of a flak jacket:

‘… I now prefer the anology of the legal ‘flak jacket’, which protects from claims by the litigious whether [the doctor] acquires it from his patient who may be a minor over the age of sixteen, or a ‘Gillick Competent’ child under that age or from another person having parental responsibilities which include a right to consent to treatment of the minor. Anyone who gives him a flak jacket (i.e. consent) may take it back, but the doctor only needs one and so long as he continues to have one he has the legal right to proceed.’

According to Brazier, the decisions in Re R and Re W, make nonsense of Gillick. Thus, there are strong arguments that neither patients would satisfy the criterion in order to possess the necessary competence referred to in Gillick. As with the common law approach laid down for adults in Re C, part of the test is that the patient is able to understand the implications of the proposed treatment and be sufficiently mature to weigh such treatment in balance to arrive at a conclusion. Neither patients in the cases were able to do so. It remains contentious as to why the judiciary were to stretch the boundaries of the principle established in Gillick in the first place. Perhaps there was recognition and therefore caution of the potential for extreme consequences as a result of immature and inexperienced decision making from the minor classed as Gillick competent. Thus, by imposing such restrictions on the doctrine, the judiciary has enforced the protectionist views of a paternalistic profession.

The case of Re E involved a fifteen-year-old boy suffering from leukaemia who possessed his parent’s strong religious beliefs. As a Jehovah’s Witness, he did not wish to receive blood products. However, the boy was made a ward of court and the judge authorised a transfusion despite the fact that he recognised that the boy was highly intelligent and mature for his age and well informed about his illness. The conclusion that the boy was not Gillick competent because he lacked insight into the process of dying, was in Brazier’s opinion, tragic. Thus, how many adults possess such insight? Brazier comments:

‘The courts have distorted common sense and ethics in attempts to avoid the implications of Gillick. Judges have even gone as far as authorizing restraint and detention of young people to ensure that they comply with treatment.’

Inevitably, the judiciary are torn between either allowing the child’s personal autonomy to prevail, at the cost of that child’s death, or overriding such autonomy, in order to preserve life and in some instances at any cost. Thus, as Downie comments:

‘Where the life of the teenage patient is in danger, it is difficult to disagree with the conclusion that he should not be allowed to bring about his own death, however strong his objections to treatment. However, the application of the principle in Re W that the court can always override a refusal of consent even by a Gillick competent minor, means that the assessment of his competence is almost a pretence. The court will base its decision on its view of the child’s welfare; and it may, therefore, be preferable to avoid the process of finding him incompetent in order to legitimise such a decision…’

Thus, the courts have failed to follow the reasoning in the Gillick case in any true sense. The boundaries of the case have been stretched to accommodate the approach that the judiciary have chosen to follow in the circumstances presented to them. Further, the alternative in some of the cases should have been to use the provisions of the Mental Health Act 1983 that is embodied with safeguards regarding treatment and compulsion that the common law does not contain:

‘Furthermore, the use of the court’s inherent jurisdiction to authorise treatment, and detention, even when statutory powers may be available (for example, under the Mental Health Act 1983) is a matter of concern. The inherent jurisdiction provides theoretically unlimited powers, and therefore gives the court great flexibility to secure the result which it considers to be required by the child’s welfare; but it also allows statutory safeguards for the patient’s rights and interests, such as those provided by the Mental Health Act 1983, to be circumvented.’

Yet, the European Court of Human Rights has held that compulsory medical treatment needed in order to prevent the death of a minor is not in breach of the European Convention of Human Rights and Fundamental Freedoms because of a lack of consent. Thus, there seems little scope for challenging the sentiment of the judiciary under the implication of the Human Rights Act 1998.

Ultimately, the issue seems to have shifted from one that initially empowered the Gillick competent minor to make respected choices with regards to his treatment, to one that echoes a rhetoric of the welfare principle. Whilst the decision in Gillick was initially seen as one of considerable force, in practice, the courts have been reluctant to follow such approach. The cases have demonstrated that in essence, the medical profession will simply pay lip service to the choices of the child and such choices will be respected only as long as they are not in disagreement with the approach of the professional, who can override the competence in order to treat the child in what he feels is the child’s best interests. Such approach is far from consistent and ultimately, continuity and consistency are qualities one would expect to be present in the subsequent decisions if the courts were truly bound by the decision in Gillick.

Bibliography

• Brazier, M., ‘Medicine, Patients, and the Law’, (2003, 3rd Edition) Penguin Books
• Cretney, S., ‘Family Law’, (2000) Sweet & Maxwell
• Herring, J., ‘Family Law’, (2004, 2nd Edition), Longman Publishing
• Kennedy and Grubb, ‘Medical Law’, (2000), LexisNexis Publishing

Articles:

• Bentley and Thompson, ‘Parental Rights When Doctors Get Involved’, (2004) 154 New Law Journal 7153
• Booth, P., and Proud, S., ‘Embracing Children – Non-Urgent Treatment, Dental Legal Issues and Children’, (2002) Family Law Journal, 32, 917
• Downie, A., ‘Consent to Medical Treatment — Whose View of Welfare? (1999) Family Law Journal 29 (p818)
• Gunn, M., et al, ‘Families and New Medical Dilemmas – Capacity to Make Decisions’, (2001) Child and Family Law Quarterly, 13.4, 383
• Lee, E., ‘Young Women, Pregnancy, And Abortion In Britain: A Discussion Of Law ‘In Practice’ IJLP&F 2004.18(283)
• Levy, A., ‘Do Children Have Human Rights’, (2002) Family Law Journal 32, 204
• Scheiwe, K., ‘Between Autonomy And Dependency: Minors’ Rights To Decide On Matters Of Sexuality, Reproduction, Marriage, And Parenthood. Problems And The State Of Debate-An Introduction’, (2004), IJLP&F 2004.18(262)