Michael Freebury - University of Southampton
The case of Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 WLR 830 is often described as a landmark decision for children’s rights. Yet in the years since this case was decided, the courts have taken an increasingly protective approach in their exercise of the inherent jurisdiction as seen in the NHS Foundation Trust v P [2014] EWHC 1650 decision, and more recently in the Court of Appeal in Re E (Blood Transfusion) [2021] EWCA Civ 1888.
The current status of child’s autonomy severely limits the circumstances in which the voice of a child is considered to be relevant and given weight to the determination given by the court. Lord Donaldson has described ‘Gillick competence’ as a ‘flak jacket’ with the primary purpose of protecting doctors who perform surgery from litigation. This highlights that the focus for the principle currently does not place children at its centre. This essay will argue that the current measures do not adequately respect the right of a child to have their views respected, and under the current interpretation of ‘Gillick Competent’ a child does not yield a significant advantage in having their views followed. The argument that autonomy is outweighed by necessity of welfare is short-sighted, as the wishes of the child are placed at the top of the welfare checklist and yet are overlooked more quickly than the other elements.
In order to comment on the adequacy of the state of the law on a child’s autonomy, it is first necessary to briefly state the current position of the law. The decision in Gillick ruled that a child may provide consent for medical treatment without concurrent parental approval if it can be shown that they hold ‘sufficient understanding and intelligence’ per Lord Scarman, as to the nature and potential consequences of the treatment; ‘Gillick competence’ was therefore established. However, this notion of a child having broad autonomy was quickly curtailed by the decision of Lord Donaldson in the case of Re R, where he ruled that the application of ‘Gillick Competence’ did not extend to giving children the right to veto medical treatment that is found to be in their best interests. He states that both the child and parents are ‘keyholders’ to consent, and a doctor may provide medical treatment so long as at least one of the parties provides their consent. He clarifies this analogy in Re W, likening consent to a ‘flak jacket’ that protects doctors from litigation. He also emphasises, however, that the providing of consent by a party is not determinative of whether treatment should proceed. In L v P, the court reaffirmed that it has the authority to override consent given, placing itself firmly as one party with a ‘flak jacket’ in relation to matters brought before it. It has exercised this discretion in cases such as NHS Foundation Hospital v P where it overrode a patient’s refusal to give consent by upholding its duty to rule in the best interests of the child per S1 Children Act.
The primary argument that child autonomy in the context of medical decision making is inadequate is that children do not in reality have any autonomy to make their own decisions. Despite the approval in Gillick of Lord Denning’s dictum in Hewer v Bryant that parental control:
‘Is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice,’
The courts have developed the law to impose strict controls on the decisions that children are able to make until they reach adulthood. Lord Donaldson’s qualification of Gillick that children are unable to veto medical procedures disqualifies any true autonomy, as decisions then ultimately lie with the court with reference to the welfare checklist set out in S(1)(3). This checklist requires the court to consider the wishes of the child if they can be ascertained, but also focuses the court on objectively discerning what would be best for their physical and emotional needs, and reducing the harm which the child is suffering or is at risk of suffering. The outcome of this approach is that at best, an illusion of autonomy is created if what a child wishes to occur happens to align with what the court determines will best promote the child’s welfare.
This arguably contravenes Article 12(1) of the United Nations Convention on the Rights of the Child which states that,
‘States Parties shall assure to the child who is capable of forming his or her own views has the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.’
Though this authority is not binding within to the court’s decision, the UK is a signatory to the convention and so it should be influential to the judiciary’s interpretation of the law.
However, the removal of a child’s right to refuse medical treatment arguably does not give ‘due weight in accordance with the age and maturity of the child’. Though S(1)(3)(a) allows the wishes of the child to be expressed, there is nothing compelling a court to give any weight to them, even if ‘Gillick Competent.’ As such, there is no protection on the court observing the child’s wishes unless they coincide with what is in their best interests per the court’s own determination; the welfare principle acting as the ‘golden thread’ throughout all such cases the court considers.
The effect of the Family Law Reform Act in relation to a child’s consent is that it assumes a child to be ‘Gillick competent’ for the purposes of consenting to medical procedures, but it likewise does not extend towards declining treatment as was ruled in Re W. Therefore, the law imposes a strict boundary where a person at their eighteenth birthday is able to make an unchallenged choice as to the treatment they receive, whereas someone a day younger will have their actions regulated by the court. This poses an arbitrary barrier that places no importance on the mental development of the person, nor the courts recognition that autonomy should be given gradually, per Lord Denning above. The law is inadequate as, for all the conversation regarding a child’s level of understanding, in reality a child is given extremely limited autonomy until they pass the barrier into adulthood.
On the other hand, Jonathan and Herring propose that the stance of Lord Donaldson in the decisions following Gillick is more nuanced than first appears, creating a distinction between a child refusing a particular treatment offered to them, and refusing all forms of treatment where there are multiple available. Though the article focuses more on consoling the ability to consent to treatment and the inability to refuse it, the distinction is still relevant to this discussion. It is submitted that allowing a child found competent to refuse one treatment in favour of another greatly advances child autonomy in the medical context whilst still upholding the requirement to further the welfare of the child as required by the Children Act. It is not clear that this is the law as Jonathan and Herring speak only in hypotheticals in relation to this argument. If it is, it is a much more adequate in ensuring a competent child has autonomy than giving the court’s unfettered discretion to determine what is in the child’s best interests.
The definition of ‘Gillick Competence’ given by Lord Scarman, emphasised the ability of the child to ‘understand fully what is proposed’. He emphasises that the child must be cognizant of long-term consequences for their decision and the emotional impact the refusal of treatment may have on themself and their family. This is an extremely high benchmark for a child to satisfy and, as a result, it is argued that it should be given much more weight than it is at present.
A case to illustrate this interpretation of the law is Re JS, where the court stated that the wishes of the child were a predominant feature of their decision. Though also considering the emotional needs of the child, the court allowed the course of action not because it approved of the applicant’s decision, but rather is giving the applicant the ability to make such a choice. This is an example of where a court is able to find the girl to be ‘Gillick Competent’ and therefore enable her to act in a manner she chooses, provided it is not absurd in the circumstances. It is argued that the adequate approach to children’s autonomy is that, once found ‘Gillick Competent’ a child should be allowed a wide berth of determination, only backstopped with the courts using the welfare principle if their decision is wholly unreasonable and violates many of the items within the welfare checklist. This may include disallowing the child to refuse all treatment but allowing them to choose a preferred treatment method, as discussed above.
Currently, this severe limitation on the rights of a child is said to be justified on a need to better protect children who are often unable to make decisions that are beneficial to their futures. The case of Hannah Jones, who initially refused lifesaving surgery but later changed her mind illustrates that since children are influential and prone to altering their opinions as they grow, their autonomy is sometimes rightly restricted, and their decisions rightly governed by the courts until they can be trusted to act in a manner that truly reflects their disposition. Another good example of this is F v F, where children refused to consent to an MMR vaccine due to heavy influence from their mother who was strongly against vaccination; the children’s refusal did not accurately reflect their views. It is evident that, in circumstances such as these, the wishes of the child should rightfully be overlooked by the court, and the court should exercise a stronger supervisory role in the decisions of children that better reflect the objective benefits of allowing the procedure to occur rather than the child’s wish at the current moment in time, which may be confused, emotionally charged, or ill informed.
On the other hand, these cases return to the central point of finding a child to be ‘Gillick competent’ and therefore observing their wishes. It is argued that the court in the case of Hannah Jones erred in its decision and should not have found a thirteen-year-old to fully understand the long-term effects of her premature death, nor respect the wish of someone so young to die at all. ‘Gillick Competence’ persists in involving relational decision making21 and therefore the more complex the scenario, the less likely it is that a child will be able to satisfy the threshold of being able to fully understand the consequences of their decision.
Buchanan and Brock argue that there is a ‘risk-relative capacity’ approach where a higher standard of competence is required where an act poses a serious risk of great harm. They further state that competence should be based partly on information requirements, therefore creating a higher capacity threshold for more procedures with higher risk. This poses a more suitable alternative to the current interpretation of ‘Gillick Competence’ by recognising a higher threshold of competence for a child to have their views respected, but ensures they are more likely to be given significant weight once that threshold has been passed.
In conclusion, the current interpretation of ‘Gillick Competence’ overly restricts a child’s ability to determine their own treatment in favour of what the court considers to be in their ‘best interests.’ Though this is helpful in cases where a child is unable to properly understand their circumstances, it does not allow a competent child to exercise their own judgement and imposes a harsh barrier of eighteen as an autonomy threshold, rather than it being a gradual transition as a child becomes more mentally and emotionally developed. To improve the law, more attention should be placed on the understanding of the child in relation to the type of decision before them, and if found competent, the child should have wide discretion on the type and amount of treatment they receive, with the court acting as a backstop rather than in the place of the child.
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Table of Cases
F v F (MMR Vaccine) [2013] EWHC 2683 (Fam)
Gillick v West Norfolk & Wisbech Area Health Authority [1986] A.C. 112 Hewer v Bryant [1970] 1 Q.B. 357
L v P (Paternity Test: Child’s Objection) [2011] EWHC 3399 (Fam) NHS Foundation Hospital v P [2014] EWHC 1650
NHS Trust v ABC & Local Authority [2014] EWHC 1445 (Fam)
Re JS (A Child) (Disposal of Body: Prospective Orders) [2016] EWHC 2859 Fam Re R (A Minor) (Wardship: Consent to Treatment) [1991] 4 All E.R. 177
Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 4 All E.R. 627
Bibliography
Gilmore S. & Herring J. ‘No is the Hardest Word: Consent and Children’s Autonomy’ [2011] CFLQ 3 UNICEF ‘The United Nations Convention on the Rights of the Child’ [2004]
Kirsty Moreton ‘Reflecting on ‘Hannah’s Choice’: Using the Ethics of Care to Justify Child Participation in End of Life Decision-Making [2020] Med Law Rev
