Medical Treatment: Decisions and the Law

4. Deciding for Others – Children

The refusal of a capacitous minor of 16-17 or a Gillick competent child cannot be overridden by the consent of a parent

In AB v CD, an application was brought by the mother of XY, a 15-year-old minor, seeking a declaration that she and the father could provide legal consent on behalf of XY to the administration of puberty blockers. Following the decision of the Divisional Court in Bell v Tavistock, there was some uncertainty about the status of parental consent. Prior to that decision, XY had been considered Gillick competent to consent to puberty blockers, but the Divisional Court’s judgment had cast some doubt on the position. XY’s competence had not been re-assessed and Lieven J therefore considered either alternative.

Having considered the earlier authorities in some detail, Lieven J concluded:

‘The very essence of Gillick is, in my view, that a parent’s right to consent or “determine” treatment cannot trump or overbear the decision of the child. Therefore, the doctors could lawfully advise and treat the child without her mother’s knowledge or consent. In Gillick, the parent did not have the right to know that the treatment was being given, so it makes little sense to assume that the parent could act to stop the child’s decision being operative on whether the treatment takes place or not.’

She also observed that the contention that a parent had such overriding rights would be ‘very difficult to accept in the light of Art 8 of the ECHR’ and that it was not, in her view, consistent with Gillick.

In the instant case, parents and child were in agreement. Lieven J said:

‘Therefore, the issue here is whether the parents’ ability to consent disappears once the child achieves Gillick competence in respect of the specific decision even where both the parents and child agree. In my view it does not. The parents retain parental responsibility in law and the rights and duties that go with that. One of those duties is to make a decision as to consent in medical treatment cases where the child cannot do so. The parent cannot use that right to “trump” the child’s decision, so much follows from Gillick, but if the child fails to make a decision then the parent’s ability to do so continues. At the heart of the issue is that the parents’ “right” to consent is always for the purpose of ensuring the child’s best interests. If the child does not, for whatever reason, make the relevant decision then the parents continue to have the responsibility (and thus the right) to give valid consent.’

She considered that either XY was Gillick competent, but not objecting to her parents’ consent, or not Gillick competent, in which case the parents could consent on her behalf. It was not necessary for the court or clinicians to investigate which route to valid consent applied.

The judgment was cited with approval by the Court of Appeal in Bell v Tavistock, although this was not an issue before the court.

In a situation where a Gillick competent child is refusing treatment which their parents wish them to have (and to which the parents would be willing to consent), an application to the court will therefore be necessary.

Although the issue does not appear to have been considered by the courts, the same will apply to the (less likely) scenario of a capacitous 16 – 17 year old refusing treatment to which their parents would consent.

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