The History of Gillick Consent

Gillick v West Norfolk and Wisbech Area Health Authority

Gillick competence is a term originating in England and wales and is used in medical law to decide whether a child (under 16 years of age) is able to consent to their own medical treatment, without the need for parental permission or knowledge.

The standard is based on the 1985 decision of the house of lords with respect to a case of the contraception advice given by an NHS doctor in Gillick v West Norfolk and Wisbech Area Health Authority.[1] The case is binding in England and Wales, and has been adopted to varying extents in Australia, Canada, and New Zealand. Similar provision is made in Scotland by the Age of Legal Capacity (Scotland) Act 1991. In Northern Ireland, although separate legislation applies, the then Department of Health and Social Services stated that there was no reason to suppose that the House of Lords’ decision would not be followed by the Northern Ireland courts.

The Department of Health and Social Security issued a circular to area health authorities containing, inter alia, advice to the effect that a doctor consulted at a family planning clinic by a girl under 16 would not be acting unlawfully if he prescribed contraceptives for the girl, so long as in doing so he was acting in good faith to protect her against the harmful effects of sexual intercourse.

The circular further stated that, although a doctor should proceed on the assumption that advice and treatment on contraception should not be given to a girl under 16 without parental consent and that he should try to persuade the girl to involve her parents in the matter, nevertheless the principle of confidentiality between doctor and patient applied to a girl under 16 seeking contraceptives and therefore in exceptional cases the doctor could prescribe contraceptives without consulting the girl’s parents or obtaining their consent if in the doctor’s clinical judgment it was desirable to prescribe contraceptives.

The plaintiff, who had five daughters under the age of 16, sought an assurance from her local area health authority that her daughters would not be given advice and treatment on contraception without the plaintiff ‘s prior knowledge and consent while they were under 16. When the authority refused to give such an assurance the plaintiff brought an action against the authority and the department seeking as against both the department and the area health authority a declaration that the advice contained in the circular was unlawful, because it amounted to advice to doctors to commit the offence of causing or encouraging unlawful sexual intercourse with a girl under 16, contrary to s 28(1) of the Sexual Offences Act 1956, or the offence of being an accessory to unlawful sexual intercourse with a girl under 16, contrary to section 6(1) of that Act, and as against the area health authority a declaration that a doctor or other professional person employed by it in its family planning service could not give advice and treatment on contraception to any child of the plaintiff below the age of 16 without the plaintiff ‘s consent, because to do so would be unlawful as being inconsistent with the plaintiff ‘s parental rights.

The judge held that a doctor prescribing contraceptives to a girl under 16 in accordance with the advice contained in the department’s circular would not thereby be committing an offence of causing or encouraging unlawful sexual intercourse with the girl, contrary to s 28(1) of the 1956 Act, and that a parent’s interest in his or her child did not amount to a ‘right’ but was more accurately described as a responsibility or duty, and accordingly giving advice to a girl under 16 on contraception without her parent’s consent was not unlawful interference with parental ‘rights’.

He accordingly dismissed the plaintiff ‘s action. The plaintiff appealed to the Court of Appeal, which allowed her appeal and granted the declarations sought, on the grounds that a child under 16 could not validly consent to contraceptive treatment without her parents’ consent and that therefore the circular was unlawful. The department appealed to the House of Lords against the grant of the first declaration. The area health authority did not appeal against the granting of the second declaration.

The decision held by court

Gillick’s case involved a health departmental circular advising doctors on the contraception of minors (for this purpose, under 16s). The circular stated that the prescription of contraception was a matter for the doctor’s discretion and that they could be prescribed to under-16s without parental consent. This matter was litigated because an activist, Victoria Gillick, ran an active campaign against the policy. Gillick sought a declaration that prescribing contraception was illegal because the doctor would commit an offence of encouraging sex with a minor and that it would be treatment without consent as consent vested in the parent; she was unsuccessful before the High Court of Justice, but succeeded in the Court of Appeal.[4]

The issue before the House of Lords was only whether the minor involved could give consent. “Consent” here was considered in the broad sense of consent to battery or assault: in the absence of patient consent to treatment, a doctor, even if well-intentioned, might be sued/charged.

The House of Lords focused on the issue of consent rather than a notion of ‘parental rights’ or parental power. In fact, the court held that ‘parental rights’ did not exist, other than to safeguard the best interests of a minor. The majority held that in some circumstances a minor could consent to treatment, and that in these circumstances a parent had no power to veto treatment.[5]

Lord Scarman and Lord Fraser proposed slightly different tests (Lord Bridge agreed with both). Lord Scarman’s test is generally considered to be the test of ‘Gillick competency’. He required that a child could consent if he or she fully understood the medical treatment that is proposed:

As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed.— Lord Scarman[1]

The ruling holds particularly significant implications for the legal rights of minor children in England in that it is broader in scope than merely medical consent. It lays down that the authority of parents to make decisions for their minor children is not absolute, but diminishes with the child’s evolving maturity. The result of Gillick is that in England today, except in situations that are regulated otherwise by law, the legal right to make a decision on any particular matter concerning the child shifts from the parent to the child when the child reaches sufficient maturity to be capable of making up his or her own mind on the matter requiring decision.

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