Archives for the month of: August, 2017


The case of Victoria Gillick v West Norfolk and Wisbech Area Health Authority
(1985)

When thinking of consent in children and young people, we may talk of Gillick Competence, but who was Mrs Gillick and what is the story behind this landmark ruling more than 30 years ago?

Introduction

To say that Mrs Gillick was angry is an understatement. She felt her rights as a parent had been undermined by a set of government guidelines issued to doctors and endorsed by her Local Area Health Authority. Furthermore, she believed that this guidance amounted to condoning and even encouraging under-age sex. Mrs Gillick, a mother of four daughters at the time, all under 16, took legal action and what happened in the court and at subsequent hearings of her case would fundamentally change the way we view and assess the competence of children to make treatment decisions.

Background

In December 1980, the Department of Health and Social Security (DHSS) issued guidance on family
 planning services for young people, which stated, or implied, that at least in certain cases which were described as 
‘exceptional,’ a doctor could lawfully prescribe contraception for a 
girl under 16 without her parents’ consent. Mrs Victoria Gillick regarded this stance as illegal and objected in the strongest terms to her Local Area Health Authority — West Norfolk and Wisbech — and sought their assurance that her children would not be given advice or prescribed contraceptives without her knowledge or consent. She wrote in March 1981, “I formally FORBID any medical staff employed by Norfolk
 A.H.A. to give any contraceptive or abortion advice or treatment whatsoever to my four daughters whilst they are under 16 years without my consent.” She received no satisfactory assurance that this would be the case and took legal action against both the Area Health Authority and the DHSS in August 1982.

The Court Cases

The case went initially to the High Court in 1984 where Mr Justice Woolf who presided turned down Mrs Gillick’s claim and dismissed the action.

He noted:

“…whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent.”

However, Mrs Gillick appealed and the following year was successful in having this decision overturned. Against that decision, the DHSS appealed to the House of Lords in October 1985 and the case was examined by the Law Lords — Scarman, Fraser and Bridge.

Mrs Gillick’s case was centred on her loss of parental rights and the legality of the DHSS’s position, and the judges reviewed these in turn.

The Law Lords examined the issue of ‘parental rights’ and concluded that these only really exist for the benefit of the child and effectively dwindle as the child grows in age and maturity. Lord Scarman stated that this ‘parental right yields to the child’s right’ when she acquires ‘sufficient understanding and 
intelligence.’

The judges also firmly concluded that any doctor who exercised his or her clinical judgement in offering contraceptive advice to a girl under 16 without her parent’s consent would not be guilty of an offence.

With these rulings the decision of the Court of Appeal, which had overturned the original ruling, was itself quashed, and Mrs Gillick had lost.

This case will be remembered, however, not for what it said about the legality of offering contraceptive advice to minors, but for its more general rulings on child consent. The case afforded the judges the opportunity to address the issue of competence in those under 16 more generally, and in so doing to create the concept of ‘Gillick competence.’

Lord Scarman ruled,

“I would hold that as a matter of law 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 a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.”

Thus, Gillick competence allows a child under 16 to consent to or refuse medical treatment, and it is up to a doctor to decide whether a child has the maturity and intelligence to fully understand the nature of the treatment, the options, the risks involved and the benefits. That competence is deemed also to be ‘situation dependent’—that is, it applies only to the treatment in question. A child may be deemed Gillick competent to understand one treatment, but not another. If a competent child consents to treatment, no one can override that decision. However, a competent child who refuses treatment may, in some circumstances, be overruled by those with parental responsibility or by a Court.

Gillick competence vs Fraser Guidelines

There has been much confusion regarding the terminology used in this area. In the 1990s there was a widely held belief that Mrs Gillick, who had lost the appeal, objected to her name being attached to the concept of adolescent competence. As such, an alternative term ‘Fraser competence’ was introduced and widely recommended. This referred to the guidelines proposed by Lord Fraser in the same 1985 House of Lords judgement that defined Gillick competence. Unlike Lord Scarman’s ruling, these guidelines were very specifically concerned with contraceptive advice and treatment.

Lord Fraser stated, “the doctor will, in my opinion, be justified in proceeding without the parents’ consent or even knowledge provided he is satisfied on the following matters:

  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.
”

These guidelines do not have any general application, and the term ‘Fraser competence’ should be completely avoided as it is not, and never has been, a synonym for ‘Gillick competence’. But, what of Mrs Gillick’s feelings on the matter? In 2006, the author of a BMJ editorial took the entirely reasonable step of writing to ask her if she objected. Mrs Gillick replied saying that she “has never suggested to anyone, publicly or privately, that [she] disliked being associated with the term ‘Gillick competent’”.

Conclusion

When treating children and young people, we have an overriding duty to act at all times in their best interests. The Gillick rulings have served to clarify what can and cannot be done in this area, but they have also brought into focus the importance of involving competent children in medical decisions that will affect them. The NSPCC reminds us that all professionals working with children must ‘balance children’s rights and wishes with our responsibility to keep children safe from harm.’

And what of Victoria Gillick? She remains active — a mother of ten children and now with 42 grandchildren, she has continued to work and campaign against under-age sex and abortion. In 2002, she won an apology and damages in a libel case against a teenage sexual health advice charity. She claimed they had alleged that her challenge against the legality of contraception guidelines was one of the reasons for a rise in teenage pregnancies during the 1980s. More recently, she has spoken out on matters of immigration, and is supportive of her husband, who is a former Ukip member of the Cambridgeshire County Council.

© Allan Gaw 2017

 

Now available in paperback…

Testing the Waters: Lessons from the History of Drug Research

What can we learn from the past that may be relevant to modern drug research?

Screen Shot 2015-10-14 at 21.22.11

“I cannot recommend it highly enough: even if you read nothing else about the origins of drug research and what it can (should?) teach us, read this….This is a ‘buy’.”  Madhu Davis review in Pharmaceutical Physician May 2016.

My other books currently available on kindle:

Screen Shot 2015-01-18 at 17.19.43Screen Shot 2015-01-18 at 17.19.00BIS Cover copyScreen Shot 2015-01-18 at 17.19.29Screen Shot 2015-01-18 at 17.18.54Screen Shot 2015-01-18 at 17.19.37Screen Shot 2015-01-18 at 17.19.16Screen Shot 2015-01-18 at 17.19.58Screen Shot 2015-01-18 at 17.20.06

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The first church you reach as you drive out of the village is not the one you’re looking for. Go a little further on and down the hill, and you will find it, the larger of the two. Walk up past the row of 17th century Alms Houses, past the mass grave marker for those who died in the plague, past the old Gumbie cat that sits and sits upon the wall, and there it is—the Parish Church of St Michael’s in the Somerset village of East Coker.

For those who know their poetry, the name East Coker will be instantly recognisable as the title for one of TS Eliot’s Four Quartets, but just why I should have spent my afternoon trying to find this village church may be less obvious. But, it is all about Eliot and my attempt to make his acquaintance, albeit more than fifty years after his death.

Go through the heavy studded oak door—a door that by the look of it could bear witness to several centuries of comings and goings—and you will find yourself in a simple church like so many others in Somerset. There are pews and kneelers, occasional Victorian stained glass in medieval traceries and memories of those who came and went, etched in plaques upon the walls. But at the West end of this church, below the window in the corner, there is one oval plaque that carries the opening line of “East Coker”—”In my beginning is my end” — and the name of the man whose ashes lie interred below, Thomas Stearns Eliot, Poet.

For an American poet who changed the world of poetry, who won the Nobel Prize for Literature, and whose work still astonishes and baffles readers, this seems an unlikely resting place. Today there is no pomp, just a simple vase of white lilies and the silence of an empty church. Eliot chose this spot. He had visited the village and the church because his forefathers had left for the States from this Somerset village in the 17th century and perhaps like many descendants of émigrés he felt the need for a homecoming.

Why I should be drawn to sit in silence before the grave of one I have never met is, I admit, puzzling. Eliot’s poetry is difficult and in places impossible, but it is rhythmic and almost primordial in others. Perhaps I am here to pay homage and kiss the hem of a great man. Or perhaps I am here to question, hoping for answers. Eliot’s silence is, however, thunderous. The finality and completeness of death, his death, is underlined by that silence in the church. But, even silent thunder can be eloquent. What is not said—the negative space around our words—is as important as the wit and depth of our sounds. A line from the end of The Waste Land came to me, perhaps was offered to me: “Then spoke the thunder.” His thunder, I thought, a clamour that rattled around the globe. A grumble, a rumble, long drawn out and wrapped in obscure language and startling imagery that holds and humbles the reader.

I reached out and touched his plaque tracing the T for Tom, mouthed a childish prayer and left. Outside the August sun was still shining and any rain clouds that had threatened were now flying to the east of East Coker. A verdant nature had taken the place of the cold church stone and cornflowers swayed blue in the breeze.

Eliot was gone, but that he had been here at all was the point. Here, in his East Coker church, out of sight, he rests for his eternity—a thunder passed, but still heard from afar.

© Allan Gaw 2017

Now available in paperback…

Testing the Waters: Lessons from the History of Drug Research

What can we learn from the past that may be relevant to modern drug research?

Screen Shot 2015-10-14 at 21.22.11

“I cannot recommend it highly enough: even if you read nothing else about the origins of drug research and what it can (should?) teach us, read this….This is a ‘buy’.”  Madhu Davis review in Pharmaceutical Physician May 2016.

My other books currently available on kindle:

Screen Shot 2015-01-18 at 17.19.43Screen Shot 2015-01-18 at 17.19.00BIS Cover copyScreen Shot 2015-01-18 at 17.19.29Screen Shot 2015-01-18 at 17.18.54Screen Shot 2015-01-18 at 17.19.37Screen Shot 2015-01-18 at 17.19.16Screen Shot 2015-01-18 at 17.19.58Screen Shot 2015-01-18 at 17.20.06

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