Gillick and Sexual Health

Gillick v Wisbech AHA 1986 AC 112 DHSS issued circular stating clinicians could offer FP to minors without express parental consent, in strict circumstances Mrs Gillick sought declaration that DHSS circular was unlawful No clear statute so: Trial Judge (Woolf J) relied on Canadian case where capacity decision reached, and refused declaration

Gillick v Wisbech AHA 1986 AC 112 AC reversed decision on grounds of parental duties inseparable from rights HL reversed again, on a majority. Lord Scarman: Parental rights over children flow from duties to them.Thus as a child grows those duties fall away, and so do the rights.

Gillick Competence:Lord Fraser’s criteria The patient can understand medical advice Patient cannot be persuaded to inform parents She is likely to have sexual intercourse without contraception Her mental/physical health are at risk without treatment Patient’s best interests require treatment or advice

Lord Fraser’s addendum Not a license for doctors to disregard parents view if inconvenient Such an action was a breach of professional duty And subject to discipline…...

Nota bene: HL was a 3:2 decision, so more judges were with Mrs Gillick It applies to all treatments and advice. Understanding is crucial : what does it mean? Sexual Offences Act 1956 does not apply The Age of Legal Capacity (Scotland) Act 1991

Gillick in Practice Approach on a case-by-case basis Competence is a dynamic concept A minor may consent to one type of treatment but not another Unwise decisions do NOT necessarily mean a minor is incompetent

Confidentiality and Minors Gillick competence implies confidentiality It is unclear whether a minor whom a doctor judges NOT to be Gillick competent is able to expect confidentiality Kennedy argues doctors may have a duty to contact parents of an incompetent minor Montgomery argues Gillick encourages minors to approach doctors understanding discussions to be confidential

Minors between 16 and 18 years of age Family Law Reform Act 1969 s8 says that consent should be treated as if given by adult Re W said that s8 does NOT apply to refusal of treatment On this basis, A 17 year old could refuse a termination and yet be forced by her parents to undergo the operation

Consent to, and Refusal, of Treatment Re R and Re W sought to draw a distinction between consent to, and refusal of, treatment Parents can override refusal of treatment even though the child is Gillick competent Has been said to “drive a coach and horses” (Kennedy) through the Gillick decision Can this distinction be justified?

Summary Gillick has given us a capacity based law It applies to all treatments and advice Use the Fraser Guidelines It does not apply to refusals of treatment Look out for approaching law changes