Comment

Victoria Gillick, consent and the rights of the child

A court case more than three decades ago helped to define the rights of children under 16 to decide their own treatment


 

A court case more than three decades ago helped to define the rights of children under 16 to decide their own treatment


Victoria Gillick's legal case gave clarity on children's healthcare rights. Picture: Getty

One person who would probably not recognise themselves as establishing a right for children is Victoria Gillick, yet in relation to healthcare and treatment it is her that children can thank for the right to be involved in their own decision making.

In January 1982, Ms Gillick wrote to the Department of Health and Social Security seeking assurance that her four daughters, all under 16, would not be given contraceptive or abortion advice or treatment without her consent. This was in response to a change issued by the Department of Health and Social Security, which was to allow contraceptive advice and treatment to girls under 16. 

The Department of Health and Social Security replied that whether to provide any advice or treatment without parental consent would be a matter for a doctor’s clinical judgment. Ms Gillick eventually took the matter to court, seeking to establish the right of a parent.

Outcomes

Mrs Gillick eventually lost her case which meant that doctors, and now nurses, could provide contraception or abortion advice or treatment to a girl under 16 without a parent’s consent. However, the outcome of the case was much wider than this because one of the arguments presented was that any consent by a child under 16 would not be legal consent as only the parent could provide this. As a result, consent and parental rights and duties became intertwined and the courts had to untangle them in reaching their decision. 

Three main outcomes arose out of these deliberations.

The first is that a doctor can provide contraception or abortion advice or treatment to a girl under 16 provided:

  1. ‘that the girl (although under 16 years of age) will understand his advice; 
  2. 'that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice; 
  3. 'that she is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment; 
  4. 'that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer;
  5. 'that her best interests require him to give her contraceptive advice, treatment or both without the parental consent.’ [Gillick v West Norfolk and Wisbech AHA [1986] AC 112 at page 174]

These have become known as the Fraser Guidelines after Lord Fraser who proposed them.

Second, the House of Lords held that parental rights and powers only existed to allow parents to exert their parental duties, and that these existed only for the protection of the child. Over time there would be a transition of these rights from the parent to the child.

Gillick competence

Third, in what is now known as ‘Gillick competence’, Lord Scarman stated that ‘the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed’ (Gillick v West Norfolk and Wisbech AHA [1986] AC 112 at page 188–189). 

This moved the criteria for being able to consent from one based on reaching a certain age to one based on being competent to understand.

It means that a child under 16 can consent to medical treatment if they have the emotional and intellectual maturity to understand the nature of what is being proposed. If a child is deemed to be ‘Gillick competent’ then their consent is legally valid and cannot be overruled by a parent. 

This is not what Ms Gillick was fighting for, but she deserves thanks for her action, which has resulted in a positive change for the rights of children.


About the author

Marc Cornock is senior lecturer at the School of Health, Wellbeing and Social Care, the Open University

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