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Goodbye Gillick? Identifying and resolving problems with the concept of child competence

Published online by Cambridge University Press:  02 January 2018

Emma Cave
Emma Cave*
Affiliation:
University of Leeds
*
Emma Cave, Senior Lecturer in Law, University of Leeds, Liberty Building, School of Law, University of Leeds, Leeds LS29JT, UK. Email: [email protected]
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Abstract

The landmark decision of Gillick v West Norfolk Area Health Authority was a victory for advocates of adolescent autonomy. It established a test by which the court could measure children's competence with a view to them authorising medical treatment. However, application of the test by clinicians reveals a number of ambiguities which are compounded by subsequent interpretation of Gillick in the law courts. What must be understood by minors in order for them to be deemed competent? At what point in the consent process should competence be assessed? Does competence confer on minors the authority to refuse as well as to accept medical treatment? These are questions which vex clinicians, minors and their families. A growing number of commentators favour application of parts of the Mental Capacity Act 2005 to minors. In this paper, the limitations of this approach are exposed and more radical reform is proposed.

Type
Research Article
Information
Legal Studies , Volume 34 , Issue 1 , March 2014 , pp. 103 - 122
Copyright
Copyright © Society of Legal Scholars 2014

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Footnotes

*

I am grateful to the Nuffield Foundation which supports the ‘Medical Practitioners, Adolescents and Informed Consent’ project 2011–2012, and to the project participants. The Nuffield Foundation is a charitable trust with the aim of advancing social well-being. It funds research and provides expertise, predominantly in social policy and education. It has supported this project, but the views expressed are those of the authors and not necessarily those of the Foundation. More information is available at www.nuffieldfoundation.org. I am also very grateful to the reviewers for their very helpful comments.

References

Notes

1. [1986] AC 112.

2. Fortin, J ‘The Gillick decision – not just a high water mark’ in Gilmore, S Herring, J and Probert, R (eds) Landmark Cases in Family Law (Oxford: Hart Publications, 2011).Google Scholar

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5. The Medical Practitioners, Adolescents and Informed Consent Project, funded by the Nuffield Foundation. See http://www.law.leeds.ac.uk/research/projects/medical-practitioners-adolescents-and-informed-consent.php (accessed 8 February 2013).

6. Protected by virtue of the Children Act 1989, s 1(1).

7. For example, first on the ‘welfare checklist’ in the Children Act 1989, s 1(3) is the court's requirement to take into account the ascertainable wishes and feelings of the child (considered in the light of his age and understanding). This applies in relation to care proceedings and opposed applications for s 8 orders.

8. DL v A Local Authority [2012] EWCA Civ 253.

9. Her Honour Pearce Nasreen ‘Mental Capacity Act 2005: not the Children Act for grown ups’ [2011] July Fam L 697.

10. Mental Capacity Act 2005, s 1(2).

11. Ibid, s 1(3).

12. Children Act 1989, s 1.

13. Mental Capacity Act 2005, s 4.

14. [2006] Ewhc 37 (Admin).

15. See eg Re Roddy (A Child) (Identification: Restriction on Publication) [2003] Ewhc 2927 (Fam); Mabon v Mabon [2005] EWCA Civ 634.

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29. Ibid, at [169], my italics.

30. Mental Capacity Act 2005, s 3.

31. Ibid, s 1(3).

32. [1993] Fam 64.

33. Ibid, at [77] per Lord Donaldson MR.

34. Flra 1969, s 8(3). Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.

35. [1993] Fam 64, [86].

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54. Article 8(1): Everyone has the right to respect for his private and family life, his home and his correspondence.

55. R (Axon) v Secretary of State for Health [2006] EWHC 37 (Admin); Mabon v Mabon [2005] EWCA Civ 634.

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57. [2006] Ewhc 37 (Admin), [79].

58. Rights of Children and Young Persons (Wales) Measure 2011.

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60. 9th Council of Europe Conference of Health Ministers Child-Friendly Healthcare: Building a Health Future for and with Children (Lisbon, 2011).

61. Article 3(1): In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

62. Article 12(1): States Parties shall assure to the child who is capable of forming his or her own views 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.

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70. [2005] Ewca Civ 634, [26].

71. See eg Commissioner for Human Rights Who Gets to Decide? Rights to Legal Capacity for Persons with Intellectual and Psychosocial Disabilities (Strasbourg: Council of Europe, 2012) CommDH/IssuePaper (2012)2.

72. See eg National Disability Rights Network Devaluing People with Disabilities: Medical Procedures that Violate Civil Rights (May 2012).

73. New South Wales Law Reform Commission Young People and Consent to Healthcare (Rpt. 119, 2008).

74. Ibid., rec. 4.

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77. Age of Legal Capacity (Scotland) Act 1991, s 2(4).

78. Though recently there are signs of change: Chester v Afshar [2004] UKHL 41, [24] where Lord Steyn recognised the role of informed consent in protecting the patient's right to autonomy and dignity.

79. General Medical Council 0–18: Guidance for all Doctors (London: GMC, 2007).

80. Department of Health, above n 22.

81. BMA Consent, Rights and Choices in Health Care for Children and Young People (2007); Children and Young Person Toolkit (2011).

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84. New South Wales Law Reform Commission Young People and Consent to Healthcare (Rpt. 119, 2008), para 5.4.

85. Ibid, para 5.4.

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103. Mental Capacity Act 2005, s 1(5).

104. Brazier and Bridge, above n 27, pp 85, 91.

105. Ibid, p 109.

106. McFarlane, above n 37, p 484.

107. Ibid, p 485.

108. Ibid, p 484.

109. Ibid, p 484.

110. Ibid, p 484.

111. Ibid, p 484.

112. See discussion in Gilmore and Herring, above n 17, p 12.

113. Chico and Hagger, above n 103, p 165. They recognise that restrictions on minors' autonomy rights would be necessary, p 166.

114. Health Care Consent Act 1996, s 4(2).

115. Ibid, s 15(1).

116. Mental Capacity Act 2005, ss 1(5) and 3(2).

117. Law Comm Report No 231 Mental Incapacity (London, 1995) para 2.52.

118. See eg Sa (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam); LA X v MM and KM [2007] EWHC 2003 (Fam); A LA v A [2010] EWHC 978 (Fam); A LA v Mrs A [2010] EWHC 1549 (Fam).

119. DL v A Local Authority [2012] EWCA Civ 253. And see Sa (a Vulnerable Adult) [2005] EWHC 2942; A Local Authority and Mrs a [2010] EWHC 1549; and L v J [2010] EWHC 2665.

120. [2005] Ewhc 2942 (Fam).

121. Ibid, at [83].

122. [2012] Ewca Civ 253, [53], [64].

123. [2005] Ewhc 2942 (Fam), [37].

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