English law recognises the right of minors under the age of 16 to consent on their own behalf to a variety of medical procedures, as long as they are competent to do so. This principle was firmly established by the decision of the House of Lords in Gillick,9 Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112. which clearly rejected the view that capacity to consent was only acquired on attaining a fixed age limit. Lord Fraser and Lord Scarman10 Lord Bridge agreed with both Lord Fraser and Lord Scarman, so forming a 3–2 majority against Mrs Gillick. both rejected Mrs Gillick’s claim that section 8(1) of the FLRA 1969 implicitly precluded adolescents under the age of 16 from giving a valid consent to medical treatment. According to Lord Fraser:
It seems to me verging on the absurd to suggest that a girl or a boy aged 15 could not effectively consent, for example, to have a medical examination of some trivial injury to his body or even to have a broken arm set. Of course the consent of the parents should normally be asked, but they may not be immediately available. Provided the patient, whether a boy or a girl, is capable of understanding what is proposed, and of expressing his or her own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man to make the examination or give the treatment which he advises.11 [1986] AC 112, at 169. See also Lord Scarman, at 186: if the law imposed fixed limits ‘where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change’.
Instead, the majority accepted that the legislation had left intact the existing principles of common law12 and that these allowed adolescents under 16 to consent to medical procedures once they were competent to do so. Lord Scarman explained that this competence was reached at the point at which:
the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.13
The question of whether this test also allows an adolescent to reject much-needed medical treatment remains controversial,14 Discussed below. but this test of Gillick competence remains authoritative at least so far as consent to treatment is concerned. The Gillick competence formula was innovative in providing a method by which doctors could identify those young patients who are sufficiently mature to reach responsible decisions for themselves. The test is both child-specific and decision-specific: whether the minor has capacity to consent depends on this child’s understanding of the particular procedure that is proposed. In this way, it allows a far more nuanced approach to the concept of capacity than one merely relying on age or generalised research evidence on children’s cognitive development.15 Discussed in Chapter 9.
Nonetheless, the test for assessing Gillick competence is deceptive in its simplicity. It was only in the context of the provision of contraceptive advice and treatment that further guidance on how to apply it was given in Gillick itself.16 These ‘Fraser Guidelines’ are discussed further below. In more general medical contexts, Gillick left doctors with no clear guidelines over how to interpret such malleable concepts as ‘maturity’, ‘intelligence’ and sufficiency of understanding.17 M. Brazier and C. Bridge (1996) pp. 91–2. Nor is it clear on the extent to which the minor should be provided with advice and information to assist in attaining the understanding necessary to become competent.18 E. Cave and C. Purshouse (2020). The GMC recommends that all relevant information is disclosed and discussed thoroughly before the competence decision is made: GMC (2018) para. 24. In Bell v. Tavistock and Portman NHS Trust [2020] EWHC 3274 (Admin), [2022] 1 FLR 30, at [130], the Divisional Court considered that the test of Gillick competence did not require a child to understand all of the information that would be disclosed by a clinician seeking to comply with the Supreme Court’s decision in Montgomery to obtain informed consent from an adult patient (discussed below). As discussed below, the Divisional Court’s decision was reversed on appeal, but the Court of Appeal made no adverse observation on this point. Gillick appears to have influenced practice in so far as young patients are sometimes being given considerable responsibility for reaching medical decisions on their own behalf at relatively early ages.19 E.g. An NHS Trust v. A, B, C, A Local Authority [2014] EWHC 1445 (Fam), in which a girl who had just turned 13 was found to be competent to consent to an abortion. See also the case of Hannah Jones, discussed below, in which doctors respected the wishes of a 12-year-old girl to refuse a life-saving heart transplant. But the uncertainty underlying the concept of Gillick competence undoubtedly weakens both its practical usefulness and its ability to give sufficient protection to the autonomy of mature minors. It places even the most mature adolescent almost entirely in the hands of the medical profession. Doctors are given considerable power, in that they must decide not only whether treatment is medically indicated, but also whether the adolescent patient is competent to consent to the procedure. The fact that such decisions must be taken on a case-by-case basis, according to the circumstances of each patient and each procedure, produces uncertainty for the adolescent patient and the medical professionals involved. In the face of that uncertainty, medical professionals may adopt an over-protective attitude towards adolescents, fearful that if a child is judged competent and treated without parental consent, the parents may later challenge the assessment of their child’s competence by suing in tort.20 E. Cave and C. Purshouse (2020). A further problem is that the malleable terms used in Gillick permit so much flexibility that practitioners may be tempted to focus on the outcome of the decision rather than the child’s competence to make it. A child reaching a decision that fits with mainstream medical opinion is likely to find it much easier to persuade a doctor that she is competent than a child who reaches a more questionable decision.21 E. Cave (2014) p. 109. Certainly, the case law on Gillick competence suggests that the courts strive to find that a child making a ‘wise’ decision is competent, but erect barriers to those that do not.22 Contrast An NHS Trust v. A, B, C, A Local Authority [2014] EWHC 1445 (Fam) with the refusal cases such as Re X (A Child) (No. 2) [2021] EWHC 65 (Fam), [2021] 4 WLR 11, discussed below.
It might be thought that one answer to the uncertainties of the Gillick test would be greater judicial guidance on its application and the factors to be considered by practitioners. Greater conceptual clarity on the meaning of the concepts used in Gillick would undoubtedly be helpful; however, the provision of specific judicial guidance is fraught with difficulty. Few medical decisions reach the courts, and those that do will tend to focus on the individual circumstances and the reason for doubt or dispute in the particular case. It is only rarely that the courts have the opportunity to give more general guidance on matters of policy as they did in Gillick on the question of contraceptive advice and treatment. One unusual case in which such a challenge was made demonstrates the difficulties of judicial guidance. In Bell v. Tavistock and Portman NHS Trust,23 [2020] EWHC 3274 (Admin), [2022] 1 FLR 30, reversed on appeal [2021] EWCA Civ 1363, [2022] 1 FLR 69. the claimants sought judicial review of the practice of the NHS Trust in prescribing puberty blockers as treatment for children with gender dysphoria. As the Court of Appeal noted, this was a highly contentious area of practice that divided medical opinion and the ethics of which were the subject of public and professional debate.24 [2021] EWCA Civ 1363, [2022] 1 FLR 69, at [3]. At first instance, the Divisional Court rejected the submission that under 18s were not capable of giving consent to puberty blockers, but expressed significant concern about the evidence base and uncertainty of the treatment.25 [2020] EWHC 3274 (Admin), [2022] 1 FLR 30. In particular, the court was concerned that puberty blockers put children on a treatment path which would have significant consequences for their fertility and sexual functioning in adulthood that they were unlikely to fully understand as minors. In consequence, the court gave extensive guidance as to the factors that a child would have to understand to be competent to consent.26 As the court considered that those under 13 were ‘highly unlikely’ to be Gillick- competent to make a decision concerning puberty blockers and it was ‘very doubtful’ that 14- and 15-year-olds would be able to weigh the long-term consequences,27 meaning that court approval should be sought before such treatment could be prescribed.28 The Court of Appeal disagreed, finding that the Divisional Court had been wrong to give detailed guidance on clinic matters and that the ratio in Gillick was that it was for clinicians, not courts, to decide on competence.29 [2021] EWCA Civ 1363, [2022] 1 FLR 69, at [87]. The Court of Appeal contrasted the Divisional Court decision with the open-ended guidance given in Gillick, which identified relevant factors without being prescriptive as to how a clinician should regard them: at [80]. In giving detailed guidance, creating age categories and requiring court approval, the court had taken upon itself a role that should be performed by clinicians subject to professional regulation and oversight.30 The decision in Bell reaffirms the importance of individual clinician-led assessment of competence and so places emphasis on the importance of professional regulation and evidence-based guidance for clinicians.
Specialised guidance produced for medical practitioners has sought to amplify the Gillick test by introducing more practical considerations.31 BMA (2019); DH (2009); GMC (2018) esp. paras 24–26. Although that guidance cannot supplant or change the legal tests, it is vital in guiding the application of the Gillick test in a changing legal and professional environment. In the years since Gillick was decided, there have been significant developments in medical practice, human rights law and research on adolescent development, all of which pose challenges to its application.32 These challenges are discussed in more detail in Chapter 9. The case was decided before the CRC and HRA and the greater protection for children’s rights and autonomy that have followed in their wake. Similarly, developments in medical law for adult patients have moved towards a greater emphasis on patient autonomy and the importance of informed consent.33 E.g. Montgomery (Appellant) v. Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11, [2015] AC 1430. In particular, the treatment of adults who may lack capacity has shifted from a paternalistic to a more strongly rights-based approach, first through case law34 Re C (Refusal of Medical Treatment) [1994] 1 FLR 31, per Thorpe J, at 33. The test (as later refined by Butler-Sloss LJ, in Re MB (Medical Treatment) [1997] 2 FLR 426, at 437) requires an ability to comprehend and retain treatment information relevant to the decision, especially as to the likely consequences of having or not having the treatment in question, to use it and to weigh it in the balance when arriving at a decision. This test of capacity influenced the test of incapacity adopted by the MCA 2005, s. 3(1). and then through the Mental Capacity Act (MCA) 2005. While Gillick may have been radical in its time, in an era concerned with rights and autonomy, it has begun to show its age.
Some of the limitations of the Gillick test of medical competence could be addressed by reference to the developing legal principles governing adult capacity to consent to medical procedures contained in the MCA 2005.35 The MCA 2005 primarily governs adult decision-making (including medical decision-making), but also governs decision-making on behalf of minors aged between 16 and 18 whose incapacity to reach decisions for themselves is attributable to an impairment of or a disturbance in the functioning of his or her mind or brain. The MCA 2005 stresses that a person should not be treated as lacking capacity in the absence of practicable help to assist in reaching a decision,36 MCA 2005, s. 1(3). See also s. 3(2) and (4), which stress that the person should be given an explanation of the information relevant to the decision in a way appropriate to his circumstances (e.g. using simple language or visual aids), including information about the reasonably foreseeable consequences of deciding one way or the other or of failing to decide. nor simply because the decision reached appears unwise,37 MCA 2005, s. 1(4). nor because the patient can only retain information relevant to the decision for short periods only.38 MCA 2005, s. 3(3). The value of these additional refinements is that they would make the Gillick competence formula more sensitive to the rights of adolescents by seeking to facilitate their decision-making.39 A. McFarlane (2011); V. Chico and L. Haggar (2011). Such use of the MCA 2005 to inform Gillick competence has been endorsed in the different context of consent to adoption.40 Re S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam), [2018] 2 WLR 1029, discussed in Chapter 9. The influence of the MCA 2005 is also evident in professional guidance, meaning that, even in the absence of case law, professional practice surrounding adolescent consent is likely to be influenced by these developments in interpreting the Gillick test.41 See e.g. An NHS Trust v. A, B, C, A Local Authority [2014] EWHC 1445 (Fam), in which the professional evidence concerning the Gillick competence of a 13-year-old girl was given in terms that were strikingly similar to an assessment of capacity under the MCA 2005: K. Moreton (2015). The General Medical Council’s (GMC’s) advice that the capacity of a minor to consent is shown by the ability to ‘understand retain, use and weigh’ information, and to communicate the decision, appears to be drawn directly from the test contained in the MCA 2005.42 MCA 2005, s. 3(1). See GMC (2018) para. 24; the guidance uses the term ‘young people’ to include all ‘older or more experienced children’ and not merely those who are over 16 and so covered by the MCA 2005. There are, however, risks that too enthusiastic a use of the MCA 2005 could have negative consequences for mature minors.43 Sir James Munby expressed doubts about the use of the MCA 2005 in assessing Gillick competence in Re X (A Child) (No. 2) [2021] EWHC 65 (Fam), [2021] 4 WLR 11, at [70]–[76]. Similarly, in Barts NHS Foundation Trust v. Shalina Begum, Muhhamed Raqeeb and Tafida Raqeeb (by Her Children’s Guardian) [2019] EWHC 2530 (Fam), at [123], McDonald J, speaking in the context of a much younger child, warned against importing wholesale the MCA 2005 principles into cases under the Children Act 1989. These points are considered further in Chapter 9. The MCA 2005 applies to people over 16, who therefore benefit from the presumption that they have capacity, and is concerned with difficulties in decision-making attributable to an impairment of or a disturbance in the functioning of the mind or brain.44 MCA 2005, s. 2. The context of a younger adolescent, to whom the presumption of capacity does not apply and who is not suffering from such impairment, is rather different. Notably, for those under 16 the burden of proof is different in that they must prove their competence rather than relying on the presumption of capacity. There is a concern that the requirement to be able to retain, use and weigh information may set a rather higher standard that Gillick envisaged in relation to relatively straightforward decisions, and so in these cases may make it more difficult for a minor to prove the ability to give effective consent.45 E. Cave (2014). The very different context gives reason to be cautious in borrowing indiscriminately from the MCA 2005, particularly in the absence of authoritative case law relating to its use in cases concerning medical treatment. The principles of the Act can, however, be helpful in emphasising the importance of giving all appropriate support to facilitate and develop the capacity of young people to make their own decisions, rather than disregarding those decisions for paternalistic reasons.
The research evidence on developmental growth suggests that later adolescence brings a more developed ability to deal with major decisions over healthcare. By this time, adolescents are typically more able to identify a range of risks and benefits, foresee the consequences of alternatives and gauge the credibility of information provided by experts.46 Discussed in Chapter 9. Section 8(1) of the FLRA 1969 recognises this by assuming that on attaining the age of 16, but before they attain 18 (the age of majority), young people have the capacity and therefore the legal right to consent on their own behalf to ‘any surgical, medical or dental treatment’. Thus, while the decision in Gillick47 [1986] AC 112, per Lord Scarman, at 184. indicated that the law should recognise the decision-making rights of adolescents below that age, but on a case-by-case basis, section 8 introduces the presumption that all adolescents over that age have capacity to consent for themselves.
The consent rights of the adolescent over the age of 16 are nevertheless more limited than those of an adult patient simply because the scope of section 8 is relatively narrow. It only authorises adolescents over the age of 16 to consent to surgical, medical or dental treatment and diagnostic procedures. Blood and organ donations are, for example, outside the scope of section 8. Nevertheless, in Lord Donaldson’s view, the donation of blood would not present problems, since ‘“a Gillick competent” minor of any age would be able to give consent [to giving blood] under the common law’.48 Re W (A Minor) (Medical Treatment: Courts’ Jurisdiction) [1993] Fam 64. But, he warned, organ donations are quite different. They are not only excluded from the scope of section 8, but, in his view, it would be ‘highly improbable’ that an adolescent under the age of 18 wishing to become an organ donor could be Gillick-competent ‘in the context of so serious a procedure which could not benefit the minor’.49 That being the case, a doctor should not proceed with an organ donation without securing the consent of a parent on the adolescent’s behalf.50
There is, of course, nothing to prevent adolescents over the age of 16 consenting to any other procedure outside the section’s scope, as long as they are Gillick-competent. But in those circumstances, the adolescent’s competence is not presumed and must be assessed on a case-by-case basis, depending on the seriousness of the procedure involved. It should be noted, however, that in many cases, adolescents over the age of 16 considered to be Gillick incompetent will also be deemed to lack capacity by the MCA 2005. This will almost certainly be the case if the adolescent’s lack of capacity is attributable to an impairment of or a disturbance in the functioning of his or her mind or brain.51 MCA 2005, s. 2(1); DCA (2007) para. 12.13. Although in such circumstances, the medical team may still gain authority to treat such a patient from his or her parents,52 Unless there is a disagreement over this, in which case a decision may be sought from the Court of Protection. they can only consent to the treatment if it is deemed to be in the patient’s best interests, as determined by the MCA 200553 MCA 2005, s. 4. and its accompanying Code of Practice.54 DCA (2007) chs 4 and 12. See esp. para. 12.16. But, as discussed below, the Code suggests that there may be situations where a young patient is unable to make a decision for some other reason, for example, because they are overwhelmed by the implications of the decision.55 Since the MCA 2005 does not then govern the situation, the parents (or those with parental responsibility for the child) must decide for themselves what is in their child’s best interests, assisted by the medical team.56 See further Re D (A Child) [2019] UKSC 42, [2019] 1 WLR 5403, at [71], where Lady Black confirmed that the MCA 2005 was not intended to be a complete decision-making framework for 16- and 17-year-olds or to exclude the existing common law and CA 1989.